INCOME BENEFITS
(A) Impairment in Mental Trauma
The Spirit of the 2003-10B advisories, with its baling wire and spit approach to the disaster that is the AMA Guides 4thEd., lives on in the state of mental trauma impairments in Texas.
The AMA Guides, 4thEd., reject the use of impairment percentages. First, there is the matter of whether there is any evidence that would support such a use of percentages:
There is no available empiric evidence to support any method for assigning a percentage of impairment of the whole person, but the following approach to estimating the extent of mental impairments is offered as a guide. Not everyone who has a mental or behavioral disorder is totally limited or totally impaired. Many individuals have specific limitations that do not preclude all of life's activities; on the other hand, there are individuals with less than chronic, but still unremitting, impairments who are severely limited in some areas of function. These impairments, too, are of concern.[37]
There is also the matter of what measurement means in this context, and whether it is reliable:
The more persuasive argument is that, unlike the situations with some organ systems, there are no precise measures of impairment in mental disorders. The use of percentages implies a certainty that does not exist, And the percentages are likely to be used in flexibly by adjudicators, who then are less likely to take into account the many factors that influence mental and behavioral impairment. Also, because no data exist that show the reliability of the impairment percentages, it would be difficult for guides users to defend their use in administrative hearings. After considering this difficult matter, the committee on disability and rehabilitation of the American psychiatric Association advised Guides contributors against the use of percentages in the chapter on mental and behavioral disorders of the fourth edition.[38]
But the Appeals Panel has connected the dots to allow for percentages, noting the internal inconsistency of the Guides on this matter:
Mental and behavioral disorders may be rated for impairment under the Guides 4th Ed. Although Chapter 14 does not provide impairment percentages in the Table entitled "Classifications of Impairments Due to Mental and Behavioral Disorders", the certifying doctor may consider Chapter 4 relating to the Nervous System to calculate the impairment percentage for mental and behavioral disorders from Chapter 14. Chapter 4 at page 142, first column, provides that the criteria for evaluating the emotional and behavioral impairments in Table 3 of Chapter 4 relate to the criteria for mental and behavioral impairments in Chapter 14.[39]
This may be an area for potential litigation in terms of the legitimacy of this move to award impairment income benefits, pitting one section of the Guides against another. But at the same time, such litigation would raise constitutional concerns over compensable injuries for which no compensation is authorized for impairment.
The Guides do provide claimants with some areas to consider in evaluating whether impairment ratings have been improperly deflated. The Guides instruct that an evaluator should consider how the treatment environment has altered the perception of impairment:
Particularly in cases involving long-standing mental disorders, overt symptoms may be controlled or attenuated by psychosocial factors, such as placement in a hospital, halfway house, board and care facility, or similar environment. These highly structured and supportive settings may greatly reduce the mental demands placed on an individual. With lowered mental demands, over signs and symptoms of the underlying mental disorder may be minimized; however, the individuals ability to function outside of the structured setting may not have changed. The evaluator of an individual who symptoms are controlled in the structured setting must consider the individuals ability to function independently of that setting.[40]
So claimants who have been extensively sheltered from the potential negative effects of their mental trauma through treatment should not have that, in a sense, held against them in evaluating their impairment rating.
So too with medication and anything else that compensates for the loss of function through treatment in a way that ultimately does not fix the underlying disorder:
Attention must be given to the effects of medication on the individuals signs, symptoms, and ability to function. Although psychoactive medications may control certain signs or symptoms, such as hallucinations, impaired attention span, restlessness, or hyperactivity, the treatment may not affect all limitations imposed by the mental disorder. If individual symptoms are attenuated by psychoactive medications, the evaluator should focus particular attention on limitations that may persist. Those limitations should be used as measures of the impairment's severity.[41]
The evaluator is also encouraged to look at the effects of treatments (such as side effects of medications) that themselves cause impairment:
Psychoactive medications used to treat some mental illnesses may cause drowsiness, blunted affect, or unwanted effects involving various body systems. Medications that are necessary to control such symptoms as hallucinations may cause a decrease in motivation and level of activity. These side effects should be considered in evaluating the overall severity of the individuals impairment and ability to function. As explained in Chapter 2, the evaluator may need to provide an impairment estimate for the drug's side effect.[42]
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