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13-P-1044                                             Appeals Court

                     ROBERT M. LITCHFIELD'S CASE.


                              No. 13-P-1044.

          Suffolk.       February 12, 2014. - August 28, 2014.

              Present:    Trainor, Katzmann, & Hanlon, JJ.


Workers' Compensation Act, Injuries to which act applies,
     Coverage, Emotional distress. Mental Impairment.



     Appeal from a decision of the Industrial Accident Reviewing
Board.


    Charles E. Berg for the employee.
    Paul M. Moretti for the insurer.


    TRAINOR, J.      Robert M. Litchfield appeals the decision of

the reviewing board of the Department of Industrial Accidents

(department) which affirmed a decision of an administrative

judge of the department.      The administrative judge determined

that G. L. c. 152, § 36(1)(j), benefits for permanent loss of

psychiatric function were not available to Litchfield.       We

affirm.
                                                                     2


    Factual and procedural background.    The following facts are

taken from the administrative judge's subsidiary findings of

fact and are not in dispute.   Litchfield "worked as a heavy

equipment mechanic for the [t]own of Westford, the employer

. . . , from 1984 until suffering an industrial injury to his

elbow and shoulder in 2001."

    Litchfield "never suffered from anxiety and depression

prior to his industrial injury but has since.   His depression

prevents him from working or doing the things he used to enjoy

including interacting with his family. . . .    He spends his days

watching television, playing computer games and performing light

housework.   He does get out of the house each day and works as a

municipal poll worker on election days.   His elbow and shoulder

pain are always present. . . .   The pain and inability to work,

directly caused by the physical injuries, have caused his

psychiatric conditions of depression and anxiety."

    He has received compensation for these injuries under

various sections of G. L. c. 152.   In 2004, he was awarded § 35

partial incapacity benefits for his physical injuries.   In 2007,

he was awarded § 34 temporary total incapacity benefits for

these injuries.   A panel of this court affirmed that award in

Litchfield's Case, 74 Mass. App. Ct. 1115 (2009).    Also in 2007,

his § 36 claim for loss of function benefits for his shoulder

and elbow was adjusted.   Finally, in 2009, he was awarded § 34A
                                                                    3


permanent and total benefits for these injuries.     Later, he

filed a claim for permanent loss of psychiatric function under

G. L. c. 152, § 36(1)(j).    The denial of this claim is now

before us on appeal.1

     Discussion.   Authority to determine which version of the

American Medical Association Guides to the Evaluation of

Permanent Impairment applies.    The insurer2 argued that the

department does not have the authority to determine which

edition of the American Medical Association Guides to the

Evaluation of Permanent Impairment (AMA Guides) applies to their

proceedings and that the AMA Guides (5th ed. 2001) (AMA Guides

5th edition) had been previously adopted.3    Compare AMA Guides

(6th ed. 2008) (AMA Guides 6th edition).     See Larson, Larson's

Workers' Compensation Law § 80.07 (rev. ed. 2013) (Larson's

Workers' Compensation).     While the insurer has not raised this

issue on appeal, we will nevertheless address it because we must


     1
       Our standard of review is controlled by the provisions of
G. L. c. 30A, § 14(7). See also Higgins's Case, 460 Mass. 50,
53 (2011); Spaniol's Case, 466 Mass. 102, 106 (2013).
     2
       The town was insured by Legion Insurance Company (Legion)
at the time of Litchfield's injury. Because Legion is in
liquidation, the Massachusetts Insurers Insolvency Fund has been
substituted for the insurer.
     3
       However, the insurer cited to Larson's Workers'
Compensation, see note 4, infra, to support its argument that
the use of the AMA Guides 5th edition was required in
Massachusetts but did not "indicate how the 5th edition was
supposedly 'adopted.'"
                                                                     4


determine which edition of the AMA Guides applies to our

determination whether this employee is entitled to additional

specific compensation in his G. L. c. 152, § 36(1)(j), claim.4

     The reviewing board and the administrative judge are both

"administrative tribunal[s] and, accordingly, 'possess[] only

such authority and powers as have been conferred upon [them] by

express grant or arise therefrom by implication as necessary and

incidental to the full exercise of the granted powers.'"

Taylor's Case, 44 Mass. App. Ct. 495, 497 (1998).     The reviewing

board is charged with reviewing the decision of the

administrative judge and "revers[ing] the decision of an

administrative judge only if it determines that such

administrative judge's decision is beyond the scope of his

authority, arbitrary or capricious, or contrary to law."     G. L.

c. 152, § 11C.   The administrative judge must file a written

order concerning whether "weekly compensation or other benefits"

are due after conducting a conference, G. L. c. 152,

§ 10A(2)(a), and if that is appealed, after a hearing, the

administrative judge must issue a decision addressing the issues

that were before the judge.   G. L. c. 152, § 11.




     4
       Also, at least one workers' compensation authority has
determined, incorrectly, that Massachusetts has adopted the AMA
Guides 5th edition. See Larson's Workers' Compensation, supra
at § 80.07[2] & n.8.
                                                                   5


     A determination of benefits available for injuries under

G. L. c. 152, § 36, "[w]here applicable, . . . shall be

determined in accordance with standards set forth in the

American Medical Association Guides to the Evaluation of

Permanent Impairments."   G. L. c. 152, § 36(2).   However, the

relevant statutory and regulatory provisions provide no guidance

regarding which edition of the AMA Guides should be used.5

     Some states have specified by statute or regulation which

edition of the AMA Guides is to be applied when rating an

impairment, ranging from the AMA Guides 3rd edition (as revised)

to the AMA Guides 6th edition.   See, e.g., Colo. Rev. Stat. § 8-

42-107 (2013) (3rd edition); Ark. Work. Comp. Commn. Rule 34

(1995) (4th edition); Vt. Stat. tit. 21, § 648 (2013) (5th

edition); R.I. Gen. Laws § 28-33-18 (2013) (6th edition).     In

these states a newer edition can be applied to a claim only

pursuant to a change in the applicable statute or regulation.

Other states have provided that the "most recent edition" shall

be applied.   See, e.g., Ariz. Admin. Code § R20-5-113.    While

     5
       General Laws c. 152, § 36(2), provides: "Where
applicable, losses under this section shall be determined in
accordance with standards set forth in the American Medical
Association Guides to the Evaluation of Permanent Impairments."
The regulations provide: "All claims for functional loss under
the provisions of [G. L. c.] 152, § 36 or § 36A, shall include a
physician's report which indicates that a maximum medical
improvement has been reached and which contains an opinion as to
the percent of permanent functional loss according to the
American Medical Association's guide to physical impairment."
452 Code Mass. Regs. 1.07(2)(i)(1) (2008).
                                                                   6


other states provide that impairment ratings shall be based on

the "current" edition of the AMA Guides.6   See, e.g., 820 Ill.

Comp. Stat. 305/8.1b.   Massachusetts, however, does not provide

in either statute or regulation which edition of the AMA Guides

should be applied when rating an impairment.7

     Determining which edition shall be applied in the absence

of any explicit guidance "is necessary and incidental" to the

board's power under G. L. c. 152, § 11C.    See Perkins's Case,

278 Mass. 294, 299 (1932) (reviewing board has powers which are

a necessary implication from those expressly granted by the

statute).   The reviewing board must determine whether the

administrative judge acted within the scope of his authority in

determining impairment ratings pursuant to G. L. c. 152, § 36.

     In the present case, the reviewing board determined that it

was "appropriate for the administrative judge to utilize the

edition of the [AMA] Guides which reflects 'the most current

     6
       See generally Larson's Workers' Compensation, supra at
§ 80.07[2].
     7
       Beginning in 1958, the American Medical Association
published the first article entitled "A Guide to the Evaluation
of Permanent Impairment of the Extremities and Back." Larson's
Workers' Compensation, supra at § 80.07[1]. Separate articles
followed relating to other body parts. In 1971 thirteen
separate guides were compiled and published as the first edition
of the AMA Guides. The publication has been refined and
expanded five times since the 1st edition with the 6th edition
being published in 2008. Ibid. There are significant
differences among the editions, not only in emphasis of certain
areas, but also as a reflection of the latest consensus in
medical science within its subject matter.
                                                                   7


scientific and clinical knowledge,' . . . at the time the

adopted medical opinion was given.   This will ensure that an

outdated methodology is not utilized to determine functional

impairment ratings, or, in the case of mental and behavioral

disorders, that there is a methodology for making that

determination."   Both of the physicians who offered impairment

evaluations here, did so after publication of the AMA Guides 6th

edition.   We agree with the board that the AMA Guides 6th

edition, "as the most up-to-date version," was appropriately

considered and applied in this case.8

     Reviewing board's interpretation of the AMA Guides 6th

edition.   Chapter 14 of the AMA Guides 6th edition, for the

first time, recognizes and quantifies psychiatric losses of

function, providing "ratings for permanent impairment relating

to [mental and behavioral disorders]."   AMA Guides 6th edition,

supra at 348.   Compare AMA Guides 5th edition, supra at 167-176.9

The AMA Guides 6th edition "discusses impairments [which are

due] to mental disorders and considers mental and behavioral


     8
       We also note that the Supreme Judicial Court has cited
with approval the definition of "impairment" in the AMA Guides
6th edition. See Commonwealth v. Scott, 464 Mass. 355, 358-359
(2013).
     9
       Although the AMA Guides 5th edition included a chapter
related to mental and behavioral disorders, it did not include a
methodology for assigning a numerical impairment value. See AMA
Guides 5th edition, supra at 167-176.
                                                                   8


impairments that may result from them."    AMA Guides 6th edition,

supra at 347.    The AMA Guides 6th edition currently only

considers impairments for selected well-validated major mental

illnesses.10    Id. at 349.

     Litchfield argues that he is eligible for benefits pursuant

to G. L. c. 152, § 36(1)(j),11 for his loss of psychiatric

function.    He argues that rating for this loss of function is

recognized for the first time in chapter 14 of the AMA Guides

6th edition and it does not matter that the psychiatric loss is

a secondary result of his physical injury or that he has already

received compensation under G. L. c. 152, §§ 34, 34A, 35, and

36, for the physical injury from which the psychiatric loss

stems.    The board concluded however, and we agree, that the

provisions of chapter 14 do not apply to Litchfield's claim.


     10
          These currently include:

           Mood disorders, including major depressive disorder
            and bipolar affective disorder.

           Anxiety disorders, including generalized anxiety
            disorder, panic disorder, phobias, posttraumatic
            stress disorder, and obsessive compulsive disorder.

           Psychotic disorders, including schizophrenia.

Id. at 349.
     11
       "An award of compensation under § 36 is 'separate and
distinct' from benefits an employee is entitled to receive under
other sections of the Act, including those for total
incapacity." Spaniol's Case, 466 Mass. at 107, citing from
Maloof's Case, 10 Mass. App. Ct. 853, 854 (1980).
                                                                   9


     The explanatory principles of assessment in chapter 14 of

the AMA Guides 6th edition provide that:

          "Disorders that are not ratable in this chapter
     include:

          "Psychiatric reaction to pain: It is inherent in the
     [2008] AMA Guides that the impairment rating for a physical
     condition provides for the pain associated with that
     impairment. The psychological distress associated with a
     physical impairment is similarly included within the
     rating" (emphasis in original).

AMA Guides 6th edition, supra at 349.

     The principles of assessment also provide the rules for

using the mental and behavioral ratings in chapter 14.   The

rules provide that:

          "In most cases of a mental and behavioral disorder
     accompanying a physical impairment, the psychological
     issues are encompassed within the rating for the physical
     impairment and the mental and behavioral disorder chapter
     should not be used. . . .

          "In the presence of a mental behavioral disorder
     without physical impairment or pain impairment, utilize the
     methodology outlined in this chapter."

Ibid.12




     12
       For the purpose of this opinion, we assume that a
permanent loss of psychiatric function is compensable under
G. L. c. 152, § 36(1)(j). This issue was neither raised nor
briefed. Nor has this question been addressed by this court or
the Supreme Judicial Court. See Yeshaiau v. Mount Auburn Hosp.,
27 Mass. Workers' Comp. Rep. 15, 19 (2013) (reviewing board held
G. L. c. 152, § 36(1)(j), includes compensation for psychiatric
injury).
                                                                   10


    The strategy of this scheme is reiterated throughout the

various chapters of the AMA Guides 6th edition.     For example,

chapter 17 states that:

    "Under most circumstances, however, [the] impairment rating
    for mental health disorders related to the stressors that
    often accompany a chronic, disabling musculoskeletal
    disorder, is captured within the rating for the
    musculoskeletal disorder itself."13

Id. at 581.

    Furthermore, chapter 3 of the AMA Guides 6th edition,

regarding pain-related impairment, explains that:

    "this edition of the [AMA] Guides does, for the most part,
    construe pain as one of many manifestations of injuries or
    diseases, and impairment ratings attempt to take into
    account the pain that typically occurs in various
    disorders."

Id. at 36.

    And "[i]n no circumstances should the [pain related
    impairments] developed using this chapter be considered as
    an add-on to impairment determinations based on the
    criteria listed in [c]hapters 4 to 17."

Id. at 39.

    Finally chapter 2, regarding practical application of the

Guides, states that:

    "[t]he impairment ratings in the body organ system chapters
    make allowance for most of the functional losses
    accompanying pain."

    13
       Chapter 3 of the AMA Guides 6th edition provides
impairment ratings "for chronic pain conditions that arise
independent of any organ system that is rated by the usual
methods." Id. at 581. Impairment ratings for a musculoskeletal
condition would use either chapter 15, 16, 17, or chapter 3.
Ibid. Combining these ratings is not permitted. Ibid.
                                                                    11



Id. at 25.

    The presence of a "physical impairment" and the pain

associated with that impairment appear to be the key factors

when determining whether a psychiatric impairment can be rated

under chapter 14.   The administrative judge found facts which

indicated that Litchfield's injuries "continue to cause him pain

and continue to preclude him from returning to work.   This pain

and inability to work, directly caused by [Litchfield's]

physical injuries, have caused his psychiatric conditions of

depression and anxiety" (emphasis added).    Litchfield does not

dispute these findings.

    Litchfield, however, argues that psychiatric loss of

function is awarded independently in jurisdictions that permit

recovery for mental injuries.    He points out that the rules for

using chapter 14 provide that:

    "In the event of a mental and behavioral disorder that is
    judged independently compensable by the jurisdiction
    involved, the mental and behavioral disorder impairment is
    combined with the physical impairment" (emphasis in
    original).

Id. at 349.   Since Massachusetts, as do most jurisdictions,

allows recovery for mental consequences of industrial injuries,

Litchfield argues that the language in the AMA Guides 6th

edition entitles him to recover for his psychiatric loss of
                                                                  12


function under G. L. c. 152, § 36, and as rated by chapter 14.14

However, the reviewing board rationally interpreted the term

"independently compensable" to require that the psychiatric

injury "be caused by the industrial accident itself."15

     Moreover, Litchfield misapprehends the meaning of this rule

for the use of chapter 14.   Assuming that the psychiatric loss

of function is independently compensable in a particular

jurisdiction and is ratable under chapter 14, the rule indicates

that a chapter 14 rating can be combined with a rating from a

different chapter in order to determine a whole person rating.

See AMA Guides 6th edition, supra at 20-22 & table 2-1

(explaining the procedure for combining impairment ratings in


     14
       Mental and emotional disabilities are compensable in
Massachusetts when they are directly caused by an employment-
related accident, without a physical component ("pure" mental or
emotional injury), or when subsequent to a physical injury which
causes a mentally disabling reaction. See Cornetta's Case, 68
Mass. App. Ct. 107, 108 (2007) (awarding § 34A permanent and
total incapacity benefits for work-related emotional
disability). See also Larson's Workers' Compensation, supra at
§ 56.03[1].
     15
       The term "independently compensable" is not defined in
our case law but other jurisdictions have used the term
consistently with the reviewing board's interpretation. See
Paternostro v. Edward Coon Co., 217 Conn. 42, 44, 47 (1991)
("The plaintiff has sustained a skull fracture and a dislocated
left shoulder in the course of his employment" which were "two
distinct, independently compensable injuries during a single
incident"); A.D. Stowe, Inc. vs. Ricks, No. 2704-98-1 (Va. App.
Apr. 27, 1999) ("The second injury can be independently
compensable even though it aggravates a pre-existing
condition").
                                                                  13


different chapters to obtain a whole body impairment rating).

That, however, is not the situation that is presented here.16

     Section 36 of the statute compensates for specific

individual loss of bodily function whether or not this loss is

causing total or partial disability.   The § 36 rating and

compensation scheme is separate and distinct from any

determination of the extent that an employee's ratable losses

affect earning capacity.   Since § 36 provides specific

consideration for a specific injury, a combined rating is not

considered in determining benefits under its authority.      Section

36 has nothing to do with determining loss of earning capacity.

     Chapter 14 of the AMA Guides 6th edition is clear in its

definition, and the limitation, of its rating of mental and


     16
       Some state statutes require that a whole person
impairment rating be provided to calculate an employee's
benefits. See, e.g., Alaska Stat. § 23.30.190(a), (b) (2012)
("the compensation is $177,000 multiplied by the employee's
percentage of permanent impairment of the whole person," which
is determined by the procedure set out in the AMA Guides); Mont.
Code Ann. § 39-71-711 (b), (c) (2013) (requiring that an
impairment rating "be based on the sixth edition of the American
[M]edical [A]ssociation Guides to the Evaluation of Permanent
Impairment" and "be expressed as a percentage of the whole
person"); N.D. Cent. Code § 65-05-12.2(10) (2010) ("If the
injury causes permanent impairment, the award must be determined
based on the percentage of whole body impairment"). The AMA
Guides 6th edition specifically notes the broad audience for the
publication: "44 [S]tates, 2 [C]ommonwealths, and [F]ederal
employee compensation systems . . . either mandate or recommend
using the Guides." AMA Guides 6th edition, supra at 20. The
AMA Guides 6th edition also asserts that it is increasingly used
to "translate objective clinical findings into a percentage of
the whole person." Ibid.
                                                                    14


behavioral disorders.   The chapter neither rates "psychiatric

reaction to pain" nor the "psychological distress associated

with a physical impairment" as these disorders are already

included and compensated within the rating methodology for the

physical impairment under other chapters.     An injured employee,

under this scheme, who has been rated for his physical

impairment under other chapters of the AMA Guides 6th edition

has already been compensated for his pain and the psychological

distress resulting from that pain.

     Therefore, under the over-all scheme of the AMA Guides,

Litchfield's claim for specific compensation under § 36 for his

pain and resulting depression and anxiety is not rated, and is

specifically excluded under the principles of assessment,

including the rules for using chapter 14.17    Litchfield remains

totally disabled due to the continuing physical consequences of

his injuries and due to the resulting pain, anxiety, and

depression.18   The administrative judge and the reviewing board


     17
       We acknowledge that, under these rules, a rating for
psychiatric impairment which is the result of a physical injury
is barred "[i]n most cases" (emphasis added). AMA Guides 6th
edition, supra at 349. It is therefore possible, according to
the AMA Guides 6th edition, to establish a rating for
psychiatric impairment resulting from a physical injury. Even
though the AMA Guides 6th edition apparently hold out that
possibility, this issue was neither argued below nor on appeal
and we therefore do not consider it.
     18
       Section 14.4 of the AMA Guides 6th edition provides that
as a "general principle . . . a condition is rated as
                                                                    15


correctly concluded that a psychiatric reaction to pain is not

ratable under chapter 14 of the AMA Guides 6th edition, because

"the impairment rating for a physical condition provides for the

pain associated with that impairment" and "[t]he psychological

distress associated with a physical impairment is similarly

included within the rating."    AMA Guides 6th edition, supra at

349.

       "We ordinarily accord an agency's interpretation of its own

regulations considerable deference."     Ten Local Citizen Group v.

New England Wind, LLC, 457 Mass. 222, 228 (2010) (Ten Local

Citizen Group), quoting from Warcewicz v. Department of Envtl.

Protection, 410 Mass. 548, 550 (1991).     The AMA Guides 6th

edition acts as an adjunct to the workers' compensation statute.

It is required to be used, where applicable, by the statute and

is referred to in the regulation.    We therefore treat its

interpretation by the reviewing board as we would the board's

interpretation of its own regulations.     "The party challenging

an agency's interpretation of its own rules has a 'formidable

burden' of showing that the interpretation is not rational."

Ten Local Citizen Group, supra.     Here, the reviewing board's

interpretation of chapter 14 is rational because the chapter

clearly states that when a psychiatric disorder is the result of



"permanent" when it is not expected to change significantly over
the next [twelve] months."
                                                                16


a physical impairment, the psychiatric disorder is not rated

under the guidance provided by chapter 14 but is included in the

compensation for the physical injury itself.

                                  Decision of reviewing board
                                    affirmed.
