Workers Compensation Attorneys Use Impairment Ratings in Order to Obtain a Permanent Disability Award

The purpose of this blog article will be to explain what a rating is and how it is used by Maryland workers compensation attorneys in determining permanent disability in a workers’ compensation case.

The Worker’s Compensation commission can make an award for permanent disability as a result of a work-related accident. After you have returned to work and have completed your treatment, then you may be entitled to a permanent disability award. That permanent disability award is determined based upon what both workers compensation attorneys  doctor’s says your permanent impairment rating is and also looks at many other factors including permanent wage loss, education, other injuries that you have had, age, experience and your actual complaints.

In order to make determinations of permanent disability, each party to the case including the claimant’s workers compensation attorneys as well as the insurance company adjuster or insurance company lawyer will obtain a permanent impairment rating. The permanent impairment rating is done by a medical doctor or in the case of a mental disability can but it be done by a medical doctor or by a psychologist.

Maryland law instructs the doctor hired by workers compensation attorneys on how to complete a permanent impairment rating. The Maryland legislature required that the AMA guidelines be used as well as five other factors in order for the doctor to complete a permanent impairment rating.

Md. LABOR AND EMPLOYMENT Code Ann. § 9-721  (2017)

• 9-721. Evaluation of permanent impairments(a) In general. — Except as provided in subsection (c) of this section, a physician shall evaluate a permanent impairment and report the evaluation to the Commission in accordance with the regulations of the Commission.(b) Contents of evaluation. — A medical evaluation of a permanent impairment shall include information about:(1) atrophy;(2) pain;(3) weakness; and(4) loss of endurance, function, and range of motion.(c) Impairments involving behavioral or mental disorders. — If a permanent impairment involves a behavioral or mental disorder, a licensed psychologist or qualified physician shall:

  (1) perform an evaluation of only the mental or behavioral portion of the permanent impairment; and

  (2) report the evaluation to the Commission in accordance with the regulations of the Commission.

.01 Incorporation by Reference.

Guides to the Evaluation of Permanent Impairment (American Medical Association, Fourth Edition, 1993) is incorporated by reference.

14.09.09.03

.03 Evaluation of Permanent Impairment.

1. Written Evaluation Required. As evidence of permanent impairment, a party shall submit:

(1) A written evaluation of permanent impairment prepared by a physician; or

(2) In claims where the issue concerns psychiatric impairment, a written evaluation of permanent psychiatric impairment prepared by a licensed psychologist or psychiatrist.

1. When preparing an evaluation of permanent impairment, a physician, psychologist or psychiatrist shall:

(1) Generally conform the evaluation with the format set forth in §2.2 (“Reports”) of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment”;

(2) Use the numerical ratings for the impairment set forth in the American Medical Association’s “Guides to the Evaluation of Permanent Impairment”, provided that a physician, psychologist or psychiatrist is not required to use the inclinometer evaluation technique specified in §3.3, but instead may use the goniometer technique specified in the “Addendum to Chapter 3”;

(3) Include the items listed under the heading “Comparison of the results of analysis with the impairment criteria . . .” in §2.2 (“Reports”) of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment”; and

(4) Include information on the items required by Labor and Employment Article, §9-721, Annotated Code of Maryland:

(a) Loss of function, endurance, and range of motion; and

(b) Pain, weakness, and atrophy.

1. Numerical Ratings.

(1) A physician, psychologist or psychiatrist preparing an evaluation of permanent impairment may include numerical ratings not set forth in the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” for the items listed in §B(4) of this regulation.

(2) If the physician, psychologist or psychiatrist uses other numerical ratings the physician shall include in the evaluation the detailed findings that support those numerical ratings.

1. When reviewing an evaluation for permanent impairment, the Commission shall consider all the items listed in §B of this regulation.

14.09.09.01

Therefore, when the doctor for workers compensation attorneys does his permanent impairment evaluation, he must also in addition to the AMA guidelines include the 5 factors mentioned above in the law.

In order to make the impairment rating process more standardized, the Maryland legislature adopted the AMA guidelines. The guidelines standardize the process, by assigning a percent of disability depending upon the diagnosis, the medical procedure as well as the range of motion of the body part. That is why the doctor will usually have you do the different ranges of motion for the body part you have injured.

Typically, even though the AMA guidelines and Maryland law had the intention to try and standardize the ratings so that the ratings for each workers compensation attorneys would be relatively similar, in practice they are typically very far from each other.

Typically, claimants workers compensation attorneys pick a doctor who historically gives high ratings while the insurance company workers compensation attorneys typically picks a doctor who gives low ratings. The AMA guidelines have a range of impairment for certain conditions. Typically, the claimant’s workers compensation attorneys doctor will rate on the high end of the AMA guidelines and the Insurance doctor chooses the low end. The AMA guidelines relies on range of motion. The insurance doctor will keep pushing the claimants body part even after the claimant complains of pain while the claimants workers compensation attorneys doctor may measure range of motion until pain is encountered. While the statute includes the 5 factors in addition to the AMA guidelines, the insurance company doctor will either say these factors are already taken into consideration by the AMA guidelines or give little or no additional rating for these factors,while the claimants workers compensation attorneys doctor may give additional disability for each factor.

When you attend a doctors’ rating appointment scheduled by either workers compensation attorneys for the claimant or workers compensation attorneys for the insurance company, for a permanent impairment rating, a typical exam will be relatively short. Most of the time the doctor will already have your medical reports, Xrays, MRIs, etc, so that all that is left to complete his rating is for the doctor to examine you and ask you about your present complaints. The doctor is not there to give you medical advice or make recommendations. Most of his work is done behind the scenes, reading your medical reports and then dictating his report based upon what he read as well as his examination of you and your complaints.

In evaluating impairment, the guides consider both anatomic and functional loss. Anatomic loss refers to damage to the organ system or body structure, while functional loss refers to a change in function for the organ or body system.

AMA guidelines in the fourth edition Section 1.2 defines impairment as a loss, loss of use, or derangement of any body part, organ system, or organ function.

Loss, loss of use, or derangement implies a change from a normal or pre-existing state. Normal is a range or zone representing healthy functioning and varies with age, gender, and other factors such as environmental conditions. A normal value can be defined from an individual or population perspective.

Impairment percentages or ratings developed by medical specialists are consensus – derived estimates that reflect the severity of the medical condition and the degree to which the impairment decreases an individual’s ability to perform common activities of daily living excluding work. Impairment ratings were designed to reflect functional limitations and not disability. The whole person impairment percentages listed in the guides estimates the impact of the impairment on the individual’s overall ability to perform activities of daily living, excluding work.

Activities of daily living commonly measured includes:

1.self-care personal hygiene including urinating brushing teeth, combing hair, bathing, dressing, eating.

2. Communication which includes writing, typing, seeing, hearing, and speak.
3. Physical activity standing, sitting, reclining, walking, climbing stairs.
4. sensory function – hearing, seeing, tactile healing, tasting, smelling.
5. Nonspecialized hand activities – grasping, lifting, tactile discrimination.
6. Travel – riding, driving, flying.
7. Sexual function – orgasm, ejaculation, lubrication, erection.
8. Sleep – restful, nocturnal sleep pattern.

The medical judgment used to determine the original impairment percentages could not account for the diversity or complexity of work but could account for daily activities common to most people. Work is not included in the clinical judgment for impairment percentages for several reasons: 1.-work involves many simple and complex activities; 2.-to work is highly individualized, making generalizations inaccurate; 3.- impairment percentages are unchanged for stable conditions, but work in occupations change; and 4.- impairments interact with such other factors as the workers age, education, and prior work experience to determine the extent of work disability.

For example, an individual who receives a 30% whole person impairment due to pericardial heart disease is considered from a clinical standpoint to have a 30% reduction in general functioning as represented by a decrease in the ability to perform activities of daily living. For individuals who work in sedentary jobs, there may be no decline in their workability although their overall functioning is decreased. Thus, a 30% impairment rating does not correspond to a 30% reduction in work capacity. Similarly, a manual labor with this 30% impairment rating due to pericardial disease may be completely unable to do his or her regular job and, thus, may have a 100% work disability. As a result, impairment ratings are not intended for the use as direct determinants of work disability.

The term disability has historically referred to a broad category of individuals with diverse limitations in the ability to meet social and occupational demands. The guides continue to define disability as an alteration of the individual’s capacity personal, social, or occupational demands or statutory or regulatory requirements because of an impairment. An individual can have a disability in performing a specific work activity but not have a disability in any other social role.

The impairment evaluation, however is only one aspect of disability determination. A disability determination also includes information about the individual’s skills, education, job history, adaptability, age, and environmental requirements and modifications. Assessing these factors can provide a more realistic of the effects of the impairment on the ability to perform complex work and social activities.

An individual with a medical impairment can have no disability for some occupations, yet very disabled for others. For example, severe degenerative disc disease may impair the functioning of the spine of both a licensed practical nurse and a bank president in a similar fashion when performing their activities of daily living. However, in terms of occupation, the bank president is less likely to be disabled by this impairment than the licensed practical nurse. Again, the guides are not intended to be used for direct estimates of work disability.

The guides have a combined values chart in order to evaluate multiple body parts that may have been injured in the accident. The combined values chart was designed to enable the physician to account for the effects of multiple impairments with a summary value. A standard formula was used to ensure that regardless of the number of impairments, the summary value would not exceed 100% of the whole person. According to the formula listed in the combined value chart, multiple impairments are combined so that the whole person impairment value is equal to or less than the sum of all the individual impairment values.

The AMA guidelines differ from Maryland law in that it is possible for the Worker’s Compensation Commission to find disability to multiple parts of the body that exceed 100%.

When the Worker’s Compensation Commission makes a decision as to permanent disability, the permanent impairment rating done by the doctor for workers compensation attorneys is only one of the factors that the Worker’s Compensation commission considers. In addition to the permanent impairment rating, the next important factor the Worker’s Compensation Commission considers is industrial loss of use of the body as a result of the injury, does the injury affect the ability of the worker to do his job either presently or in the future. In order to make this determination the commission will have to look all of the following factors:

1. At what type of work the claimant was doing at the time of the accident,
2. Is the claimant able to go back to that type of work?
3. If the claimant cannot go back to that type of work what kind of work can the claimant do?
4. Will the claimant suffer a permanent loss of earning capacity?
5. What specific limitations will the claimant have?
6. The commission will look at the educational background of the claimant, his age, his work experience and his ability to be retrained.
7. The commission will look at any other disabilities of the claimant had and how these affected his abilities above mentioned above.

Unfortunately, there is no validated formula that assigns accurate weights to determine how a medical condition can be combined with other factors, including education, skill, and the like, to calculate the effect of the medical impairment on future employment. Therefore, each commissioner or hearing official bases a decision on the assessment of the available medical and non-medical information. The guides may help resolve such a situation, but it cannot provide complete and definitive answers. Each administrative or legal system that bases disability ratings on permanent impairment defines its own process of converting impairment ratings into a disability rating that reflects the degree to which the impairment limits the capacity to meet personal, social, occupational, and other demands, or to meet statutory requirements. The guide is a tool for evaluation of permanent impairment. Impairment percentages derived from the guides criteria should not be used as direct estimates of disability. Impairment percentages estimate the extent of the impairment on the whole person functioning and account for basic activities of daily living, not including work. The complexities of work activities require individual analysis. Impairment assessment is a necessary first step for determining disability.