Idaho Law Blog

By Fred J. Lewis

We have now had some time to reflect on the adoption of the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment. There were criticisms to the Fifth Edition in that it awarded too much impairment that was actually disability. One of the biggest changes from the Fifth to the Sixth Edition was a greater emphasis on the functional assessment as a component of the impairment rating. The doctors working on the Sixth Edition also tried to remove as much ambiguity as possible to improve the inter-examiner consistency. We have seen the biggest adjustments made in the spinal chapter of the Sixth Edition. These impairment ratings are now much lower. The writers of the Sixth Edition did this by assigning lower numbers to each of the classifications, which are driven by the severity of the injury. The writers of the Sixth Edition further attempted to drive down the impairment ratings by developing a grid system, which then subtracted or added to the overall impairment.

This development is of major concern to many Idaho Workers’ Compensation claimants. Most of the more serious Idaho Workers’ Compensation claims arise out of low back injuries. With the lowering of the impairment ratings, injured Idaho workers now receive less in the form of impairment rating monies because their impairment ratings are now lower. The way to work around this problem is to make sure that the disability portion of your Idaho Workers’ Compensation claim is developed by having evidence of your restrictions and documentation of your wage loss. These are the two largest non-medical factors that drive your disability claim. If your Idaho Workers’ Compensation claim is properly developed by an experienced Idaho Workers’ Compensation lawyer, you can make up for these lower impairment ratings by having a stronger disability claim from the non-medical factors in your Idaho Workers’ Compensation case.

By Fred J. Lewis

In Green v. Industrial Special Indemnity Fund (Second Injury Fund), the Claimant was a sawyer who was struck by a falling tree. The Second Injury Fund appealed from the Idaho Industrial Commission’s determination that Green was totally and permanently disabled and that his disability was due to the combined effects of a lumbar fusion and cervical fusion related to the industrial accident and a preexisting thoracic fusion. The Second Injury Fund argued that the Idaho Industrial Commission made a mistake regarding the application of the “but for” test for determining Second Injury liability.

The Idaho Supreme Court specifically held that in applying the “but for” test, it is not necessary for a claimant’s physician to use magic language in rendering an opinion regarding the effects of the prior condition and the last industrial accident. The Second Injury Fund focused on two sentences in the Commission’s decision to argue that the Commission failed to apply the “but for” test. But those two sentences are: “Therefore, per Drs. Ganz and McNulty, the fact that Claimant has a preexisting T12-L1 fusion increases the risk that he will have further problems from L3-5 fusion unless he observes certain prophylactic limitations/restrictions. We believe this demonstrates that Claimant’s preexisting thoracic spine condition does combine with the effects of the work accident to contribute to Claimant’s total and permanent disability.”

By Fred J. Lewis

On March 7, 2012, the Idaho Supreme Court decided the case of Brown v. The Home Depot. In this case the claimant had slipped on the snow covered steps while working for Home Depot and hurt his back. This Idaho Workers’ Compensation claimant had significant preexisting medical issues which included two prior back surgeries and the removal of his left lung. The claimant contended that he was totally and permanently disabled and sought recovery from both his employer and from the State of Idaho Industrial Special Indemnity Fund (ISIF). The Commission found that the claimant to have permanent disability of 95%, which meant that they did not find him to be totally and permanently disabled.

The Claimant appealed the Commission’s decision to the Idaho Supreme Court and argued the Commission correctly evaluated the permanent disability at the time he reached Maximum Medical Improvement (MMI) for his last injury as opposed to the actual date of the hearing in his Idaho Workers’ Compensation case. This was significant because his MMI date was in late 2005, which occurred during a job market boom as opposed to 2009, when his hearing was held and Idaho was in the midst of the Great Recession.