ROBERT M. LITCHFIELD'S CASE

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.

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."

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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 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. [Note 1]

Discussion. Authority to determine which version of the American Medical Association Guides to the Evaluation of Permanent Impairment applies. The insurer [Note 2] 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. [Note 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 determine which

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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. [Note 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.

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. [Note 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 3d edition (as revised) to the AMA Guides 6th edition. See, e.g., Ark. Work. Comp. Commn. Rule 34 (1995) (4th edition); Colo. Rev. Stat.

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§ 8-42-107 (2013) (3d edition); R.I. Gen. Laws § 28-33-18 (2013) (6th edition); Vt. Stat. tit. 21, § 648 (2013) (5th edition). In these states a newer edition can be applied to a claim only pursuant to a change in the applicable statute or regulation. Some states have provided that the "most recent edition" shall be applied. See, e.g., Ariz. Admin. Code § R20-5-113. Other states provide that impairment ratings shall be based on the "current" edition of the AMA Guides. [Note 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. [Note 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 that 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 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

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appropriately considered and applied in this case. [Note 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. [Note 9] The AMA Guides 6th edition "discusses impairments [which are due] to mental disorders and considers mental and behavioral 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. [Note 10] Id. at 349.

Litchfield argues that he is eligible for benefits pursuant to G. L. c. 152, § 36(1)(j), [Note 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.

The explanatory principles of assessment in chapter 14 of the AMA Guides 6th edition provide that:

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"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. [Note 12]

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." [Note 13]

Id. at 581.

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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."

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

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argues that the language in the AMA Guides 6th edition entitles him to recover for his psychiatric loss of function under G. L. c. 152, § 36, and as rated by chapter 14. [Note 14] However, the reviewing board rationally interpreted the term "independently compensable" to require that the psychiatric injury "be caused by the industrial accident itself." [Note 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 different chapters to obtain a whole body impairment rating). That, however, is not the situation that is presented here. [Note 16]

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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 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. [Note 17] Litchfield remains totally disabled due to the continuing physical consequences of his injuries and due to the resulting pain, anxiety, and depression. [Note 18] The administrative judge and the reviewing board 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 asso-

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ciated 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 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.