Workers compensation aims to cover medical bills and replace part of your wages until you can return to work after an occupational injury or illness.
But what happens when your workers comp doctor has no further treatment to offer, and you have permanent impairment from the work injury that will affect you for the rest of your life?
Federal and state workers compensation systems have tried to answer the question of what to do when a work accident inflicts permanent injury by paying a benefit known as “permanent partial disability.” This benefit represents compensation to injured employees for losing the function of the affected body part and diminished future earning capacity.
Many states, including Virginia, use a permanent impairment-based approach to compensate for permanent partial disability.
This article explains how workers compensation evaluates and calculates permanent impairment and partial incapacity. Your assigned permanency rating (the permanent partial disability rating) can earn you tens of thousands of additional dollars.
Read on for more information about permanent impairment rating calculations.
If you have workers compensation questions, call (804) 251-1620 or (757) 810-5614. We have obtained millions of dollars in workers comp settlements, often using impairment ratings to boost claim value, and we can help you, too.
An impairment rating is the consensus-derived percentage estimate of the loss of activity reflecting the severity of a given health condition and the degree of associated limitations in activities of daily living (ADLs). American Medical Association. Guides to the Evaluation of Permanent Impairment – 6th Edition. Chicago, IL: AMA Press; 2008.
The goal of evaluating permanent impairment is not to provide therapeutic medicine.
Instead, the primary purpose of an impairment rating is to help workers compensation, Social Security disability, long-term disability, Veterans Administration (“VA”) disability, and personal injury systems decide how much money you should receive from an injury or illness resulting in a measurable physical or psychological loss.
Unless you suffered the total loss of a limb or digit or paralysis, you must have a permanent impairment rating to receive permanent partial disability benefits in states that follow the impairment-based approach.
For example, in Virginia, you cannot secure compensation for permanent disability until your functional loss of capacity is quantified or rated.
Otherwise, you will have insufficient evidence to receive permanent partial disability.
Most states require or recommend using the AMA Guides to measure permanent impairment in workers comp claims.
For example, Virginia case law does not limit an injured employee to using the AMA Guides to prove permanent partial disability. However, PPD claims in Virginia most commonly use impairment ratings under the AMA Guides.
Therefore, knowing the AMA Guides work can help you get a higher impairment rating and receive more money for your permanent injury.
The AMA Guides have fifteen chapters devoted to different body parts, organ systems, and types of impairment:
Many of these chapters provide the framework for determining how the organ or body system impairment results in functional limitations of the whole person.
The whole person impairment is a percentage from 0 to 100, with 0% meaning normal function with no permanent impairment and 90% to 100% meaning total dependence on others and close to death.
Some states, however, do not recognize whole person impairment ratings. Virginia is one.
Instead, you must receive a regional impairment rating to win a claim for permanent partial disability. Fortunately, the chapters addressing hearing loss, vision loss, and loss of use of the arms, hands, legs, and feet (including loss of function to a body part from a spinal cord injury) allow for regional impairment ratings.
As with whole person impairment ratings, regional impairment ratings are percentages from 0 to 100, with 100% meaning a total loss of use of the body part (such as with an amputation injury).
When your treating doctor says you have attained maximum medical improvement (MMI) for the injury they have treated, it is time to ask for an impairment rating evaluation.
Workers comp boards do not consider a permanent impairment rating valid unless sufficient time has passed for healing and your condition has plateaued, with future treatment unlikely to improve your functioning.
Whether sufficient time has passed is subjective, varying from person to person. There is no standard limit for when you must reach MMI.
As with most legal issues, there is an exception to the rule that you must wait until MMI to receive an impairment rating.
Workers compensation allows you to seek compensation based on a pre-joint replacement impairment rating. As the Court of Appeals of Virginia said in a total hip replacement case, “[a]warding compensation based on a pre-surgery loss-of-use rating recognizes that a work-related injury has permanently deprived the claimant of natural functionality. Although the procedure to implant a prosthetic hip joint is commonly called a total hip ‘replacement,‘ the natural joint’s function and ability to heal is irreplaceable.”
Yes.
You can and should obtain a permanent impairment rating regardless of work status.
Returning to your pre-injury job or obtaining new employment does not bar you from receiving PPD based on the disability rating.
Assessing and assigning a disability rating requires medical knowledge and involves tasks within the domain of specially trained physicians.
Therefore, an osteopathic medicine or medical doctor should evaluate permanent impairment.
We recommend asking your authorized treating physician to provide a permanent disability rating.
Many courts and administrative agencies follow the treating physician rule.
Under this rule, when conflicting medical evidence exists (such as two impairment ratings—one from your doctor and a lower one from an IME physician), the judge will usually give greater weight to the treating doctor’s opinion because they are the person with the most knowledge of your condition, diagnosis, and symptoms.
Some physicians, however, will not do impairment evaluations because they are untrained in assessing permanent disability.
In these situations, we ask the treating doctor to refer the patient (our client) to a specific evaluator we trust to give a fair permanency rating. Then, we ask the employer or insurer to schedule and pay for this impairment evaluation.
You have options if the defendants refuse to authorize the appointment for a disability rating. File a change in condition claim with the Commission and litigate the issue.
Once you receive the impairment rating, send a copy to your treating physician and ask them to sign off if you agree with the percentage.
The employer and insurer must pay for the permanent impairment rating in workers compensation.
This mandate that employers pay for workers comp disability ratings is recent.
In 2021, the Virginia Workers Compensation Commission departed from rulings over the past twenty years. It held that permanent impairment ratings qualify as medical attention covered under the law. Therefore, employers and insurers must pay for them.
Earlier this year (March 2024), the Commission upheld this rule in a case handled by our firm.
The defendants have filed a notice of appeal with the Court of Appeals of Virginia, challenging whether a permanent impairment rating is medical attention under workers’ compensation. We will update this article when this case concludes.
An impairment evaluation is “the acquisition, recording, assessment, and reporting of medical evidence, using a standard method as described in the AMA Guides, to determine permanent impairment associated with a physical condition.” Melhorn JM, Talmage JB, Ackerman WE, Hyman MH. AMA Guides to the Evaluation of Disease and Injury Causation, 2nd ed. Chicago: American Medical Association; 2014 at 10 (citations omitted).
“The measurement and rating of impairment involves the scientific and clinical assessment of the functioning of the body parts or organ systems in question and the causal relationship to the exposure or event.” Occupational Injuries and Illnesses, AMA Guides Handbook, Ch. 100, Section 100.04[1] (LexisNexis Matthew Bender) (2018 ed.).
The AMA Guides explain how physicians should perform an impairment rating.
First, the doctor should obtain and review your medical reports from the occupational injury. This record review must include available diagnostic imaging or functional tests, sometimes the most critical factors in evaluating permanent impairment (particularly in cases claiming pulmonary or cardiac impairment).
Second, the doctor should record your clinical history and examine you. This interview and examination aim to determine your current symptoms and confirm you have reached MMI. If the answer is no, the impairment evaluation is premature.
Third, the physician chooses the most reliable diagnosis. This step is the most critical factor in accurately calculating permanent impairment from an industrial accident.
Fourth, the examiner determines the critical factor in assessing permanency: your clinical presentation history, physical findings (current symptoms), or objective test results. Then the examiner turns to the appropriate impairment table/grid in the AMA Guides for your condition.
Fifth, the examiner classifies your impairment in this critical factor. Typically the impairment tables have five classifications:
Each impairment class has a range of available impairment ratings.
The exact percentage impairment within this range depends on where your condition falls within five ranges in the appropriate class: A, B, C, D, or E.
Once you have an impairment rating for the key factor, the examiner will look at the other factors to decide if grade modifiers suggest an increase or decrease in the percentage.
Finally, the examiner will put their findings in a permanent impairment evaluation report.
Whether you can receive PPD for an impairment rating based only on pain depends on what state has power over your case.
In Virginia, for example, pain alone cannot serve as the basis for an award of benefits.
However, courts have recognized that “common sense, logic, and medical opinion dictate that pain can, at times, impair function and result in disability.” Pain, therefore, can be included in calculating permanent impairment if the evidence shows how pain contributes to your loss of use.
One or more of these things will likely happen after you receive a disability rating.
First, the insurer may decide to offer a workers compensation settlement.
Unless it disputes the rating’s validity, the insurance company will include the value of your permanency rating in its first offer. Otherwise, the insurer may schedule a defense medical examination to get a lower impairment rating for leverage during settlement negotiations.
Second, if you disagree with the permanent impairment percentage, you can obtain a second rating (at your expense). We recommend consulting with an experienced work injury lawyer who can direct you to a claimant-friendly physician.
Third, if you do not want to settle or reject the insurer’s settlement offers, you can file a claim for permanent partial disability benefits and attach the impairment rating report you rely on.
If the insurer accepts the rating, it will offer an award agreement form that the Commission will memorialize as an Award Order. Then you will receive payments for permanency.
If the insurer disputes the rating, you may have to prove your claim at a workers compensation hearing.
The judge will decide which rating to accept if conflicting medical evidence exists. Or, the judge may average the impairment ratings to determine how much permanency to award.
With the last option, lifetime medical benefits will continue.
In addition, you may be able to receive additional wage loss benefits, such as temporary total disability (TTD) or temporary partial disability (TPD).
No.
The Guides distinguish impairment from disability. A permanent impairment rating does not convert to specific functional limitations or provide the foundation to estimate work restrictions.
Instead, we recommend asking your doctor to write a letter detailing what you cannot do physically or mentally because of the occupational injury or disease.
Or, if your physician avoids opinions on work status, ask them to refer you for a functional capacity evaluation (FCE) to assess permanent restrictions. Often, you can complete the FCE testing and impairment rating evaluation at the same appointment.
Yes.
You may undergo multiple permanent impairment evaluations in your workers compensation case.
Let’s look at two common scenarios.
First, suppose you suffer a broken thumb while working for Walmart.
You should receive a disability rating for the thumb as well as ratings for the hand and arm. Usually, the permanency rating for the largest extremity tied to the injured body part results in the highest payout.
Here is another example:
Suppose you suffer a torn ACL and a right shoulder rotator cuff tear in a forklift accident at Amazon.
Both injuries require surgery.
The orthopedic surgeon operates on your knee first.
Then his colleague operates on your shoulder.
You will undergo two permanency evaluations and receive disability ratings for the lower extremity (leg) and the upper extremity (arm).
Indeed, you may complete these evaluations months apart, depending on your doctors’ strategy.
You will receive permanent partial disability benefits for each body part that suffered permanent injury.
No, unfortunately.
The impairment-based approach used in Virginia and other states to determine partial incapacity does not consider future wage losses.
Each year, permanent impairment ratings lead to billions of dollars in payments to injured employees like you.
So, your employer and the claim administrator (Corvel, ESIS, Gallagher Bassett, PMA, Sedgwick) will look for ways to reduce the workers’ compensation disability rating you receive.
Sometimes, this means the insurance defense attorney or claim adjuster will cross-examine the doctor who gave the permanency rating, hoping they will revise the percentage lower; other times, it means sending you to an IME doctor for a second opinion and a lower rating.
We know how to scare adjusters and defense counsel and fight back so you get a higher impairment rating that increases your case’s value.
Contact us today to get every penny owed for permanent injury inflicted by a workplace accident.