Troubh Heisler : Court OKs Psych PI and ROM Model

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Attorneys Heather G. Egan Daniel R. Felkel Thomas E. Getchell Daniel F. Gilligan Matthew S. Goldfarb Edwin A. Heisler Karen G. Kingsley William K. McKinley Chris Neagle Michael Richards William B. Troubh D. Kelley Young

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Court OKs Psych PI and ROM Model

On October 21, 2008, the Maine Supreme Court issued two ground-breaking decisions regarding permanent impairment (PI) in workers’ comp cases:

1. In Harvey v. H.C. Price Co., 2008 ME 161, the Court held that psychological PI can be assessed under the PI Guides and added to physical PI to get an employee over the PI threshold for lifetime partial incapacity benefits.

2. In Sprague V. Lucas Tree Experts, 2008 ME 162, the Court held that the "range of motion model" in the PI Guides can be used to accomplish same purpose.

Vivian Harvey injured her leg at work and developed chronic pain and depression. Price filed a PI petition and HO Jerome found that Harvey had 5% PI. Harvey then filed her own PI petition, arguing that her psychological PI should be added to the physical PI. (The decision does not mention any res judicata defense that Price may have raised.) A §312 IME was requested, and Dr. Lobozzo was appointed and ascribed 7% PI for her psychological condition. HO Sprague added the two PI numbers and found that Harvey had 12% PI, including her psychological condition, putting her over the 11.8% PI threshold for that DOI.

Price appealed, arguing that the 4th edition of the AMA Guides to the Evaluation of Permanent Impairment provided no numerical ratings for psychological PI, but the Court found that the PI Guides did not expressly prohibit such ratings and that Dr. Lobozzo’s analysis was reasonable.

David Sprague injured his back at work and had two surgeries. Dr. Pier was his treating physician and estimated 10% PI using the DRE ("Diagnostic Related Estimates") model in the PI Guides. A §312 IME was requested, and Dr. Bamberger was appointed and used the ROM ("Range of Motion ") model to find 12% PI (over the 11.8% threshold). HO Sprague adopted the IME’s PI number, and Lucas appealed, arguing that the PI Guides require the use of the DRE model.

The Court acknowledged that the PI Guides recommend use of the DRE model, but the Court noted that the PI Guides also allow use of the ROM model if the DRE model did not fit the claimant’s injury, as Dr. Bamberger found was the case here.

As a result of Harvey, we expect more injured employees to claim depression and psychological PI to get their PI above the threshold for lifetime partial benefits. We also expect the decision to complicate the WCB Directors’ discussions regarding the biannual amendment of the PI threshold.

As a result of Sprague, we expect more employees to ask that the ROM model be used instead of the DRE model in the PI Guides. In general, both decisions will mean higher costs for employers doing business in Maine.