Arizona Court of Appeals Division One Holds That Physicians Making Rule 113(B) Determinations of Impairment For Workers' Compensation Should Use the AMA Guide Then In Effect.

The petitioner, Jesus Gutierrez, filed a workers’ compensation claim after he experienced an immediate onset of pain in his back while moving plywood at his place of employment. The claim was accepted for benefits. Gutierrez received medical treatment and was released to return to work.  The claim was then closed, listing that there was no permanent impairment. Gutierrez requested a hearing, after which the Industrial Commission of Arizona (“ICA”) administrative law judge (ALJ) entered an award finding that there was no permanent impairment. Gutierrez requested administrative review, and the ALJ affirmed his award.  Gutierrez then filed a special action to appeal the ALJ’s decision.  Arizona Administrative Code (“A.A.C.”) R20-5-113(B) (“Rule 113(B)”) states that a physician discharging a claimant from treatment should rate the claimant’s impairment according to the standards in “the most recent edition of the American Medical Association in Guides to the Evaluation of Permanent Impairment . . . .”  Gutierrez argued that “the most recent edition” referred to the Fifth Edition, which was the most recently published edition when the rule was published, and that the physician could not use the Sixth Edition, which was the most recently published edition at the time the physician conducted his examination.  Gutierrez further argued that if “most recent edition” referred to the edition most recently published at the time the physician conducts the exam, that it was an impermissible delegation of the ICA’s rule-making authority to the AMA.  Gutierrez also argued that the use of the Sixth Edition violated Article 18, Section 8, of the Arizona Constitution, which prohibits the reduction of percentages and amounts of workers’ compensation “except by initiated or referred measure . . . .”

The Arizona Court of Appeals affirmed.  The court held that Rule 113(B) referred to the most recent edition of the AMA Guides published at the time the worker is evaluated for permanent impairment.  The Court pointed out that the phrase “most recent edition” was added to the rule to recognize the practice under the old rule of using the edition most recently published at the time of the evaluation of impairment.  The Court further held that the use of the newest edition of the guide was not an unlawful delegation of authority because the physician performing the evaluation still had some discretion whether to use the AMA Guide and that prohibiting the use of the most up-to-date standards developed by experts would obstruct the efforts of the workers’ compensation system to provide accurate evaluations.  The Court also held that use of the newest edition of the guide did not violate the constitutional prohibition of reductions of percentages and amounts of compensation because the ICA’s use of the Sixth Edition did not have the intent or effect of depriving Gutierrez from receiving benefits to which he would have previously been entitled, because even if the Fifth Edition had been used, Gutierrez would not have been guaranteed benefits.

Judge Winthrop authored the opinion; Judges Portley and Downie concurred