This article defines when impairment ratings are required and how the rating is determined. The proper impairment rating may help to maximize the total amount of weekly benefits you’re entitled to after medical treatments can no longer improve your medical condition.
In the context of a workers’ compensation case, a permanent partial impairment rating will typically be a measure of any permanent damage or restriction that is objectively measured in a specific body part, such as the upper extremities, lower extremities, hands, or feet. In North Carolina (not in Virginia) this can also include permanent impairment to the spine. These partial impairment ratings are expressed in terms of a percentage of permanent impairment.
AMA definition of maximum medical improvement (MMI)
The Department of Labor’s AMA guidelines (North Carolina’s is comparable) states that MMI is the medical condition/time at which the worker’s health is not likely to improve – with our without- any further medical treatment. The AMA has an exception for a terminal employee who is undergoing medical treatment for an “illness that has not reached MMI.”
A permanent partial impairment rating cannot be made until the worker reaches MMI.
The claim becomes more complicated if a worker has multiple illnesses or conditions – one of which has reached MMI and the others haven’t reached MMI. An experienced North Carolina workers’ compensation lawyer can then explain what happens.
The impairment rating is typically measured via a Functional Capacity Exam (FCE), which will usually include narrative text – to state and support the opinion of the therapist as to the percentage of impairment. Then the treating doctor will review that opinion and either sign off on it, or add his or her own modifications, often with a descriptive rationale to support any such modifications.
Which physician conducts the impairment rating?
Your treating physician should also be the doctor who “signs off” on the percentage impairment and assigns a percentage rating to the impairment. As noted previously, that is usually done via a Functional Capacity Examination that your physician will have to review. The insurance carrier for the employer has the right to review this assessment. If the insurance company agrees with the assessment, then, depending on whether you are still receiving TTD benefits, they may forward an Award Agreement which you will sign, indicating how much you will receive for your PPI benefits.
Alternatively, the rating money may be incorporated into a full and final settlement as negotiated between your work injury lawyer and the insurance company, obviously, in consultation with you. The settlement can:
- Award the payments for your permanent disability to be paid over time – for example, 35 weeks.
- Alternatively, your lawyer and the insurance company can also discuss a lump-sum payment. Here, you receive one check to cover the amount you would receive over time (for example, 35 weeks).
- If your attorney and the insurance carrier, in consultation with you, opt to engage in negotiations for a full and final settlement, where the PPI money is incorporated into that settlement, then there are some considerations and issues that will need to be resolved such as:
- Ensuring that the settlement will cover any outstanding past and potential future medical expenses which are related to your work injuries. Even though an impairment rating means you’ve reached maximum medical improvement, workers often need extensive physical therapy, additional treatment such as injections or even possible future surgery to address any worsening of their injuries over time. This is often addressed by your attorney asking your treating doctor for an opinion letter where the doctor may provide information as to your potential future care.
- Adjusting the amount because you’re getting all of it now instead of having to wait for it. This is called reducing the future projections to present value.
- Addressing any issues involving Medicare or Social Security.’
- Addressing future potential medical transportations costs. In some cases, depending on the likely frequency of care and the location of your residence, these can be significant.
If the insurance company does not agree with the impairment rating, they have the right to ask for an independent medical examination. In North Carolina, if you are unsatisfied with your doctor’s impairment rating, you can also request an independent ratings examination with a doctor of your choice at the expense of the defense. (This option is not available in Virginia). The Workers Compensation Commission or Industrial Commission can then choose to accept:
- The impairment rating of the treating physician
- The impairment rating of the doctor who provides the independent medical examination
- The average of the two different ratings
What tests and evaluation methods does the physician use to make the impairment rating?
The tests and evaluation methods vary depending on the nature of your injury. Treating doctors and independent medical examination doctors can perform these tests and methods – using the AMA guidelines or state guidelines – depending on the state.
Today, as mentioned previously, most physicians send the patient to another healthcare analyst who specializes in functional capacity examinations (FCEs). These are usually physical therapy facilities with qualified personnel to perform the examination. There are two types or phases of an FCE exam.
One part of the FCE exam focuses on the worker’s ability to do his/her job. This portion of the exam will typically rate the injured worker’s ability to perform work on a scale or continuum of ability as defined by the U.S. Department of Labor as Physical Demand Characteristics. It ranges from no ability to work, on to sedentary, all the way up to very heavy work.
Those parameters for the physical demand characteristics of workers are defined as follows:
Occasional Frequent Constant
(0-33% of (34-66% of (67-100% of
Workday) Workday) Workday)
Sedentary 10 lbs. negligible negligible
Light 20 lbs 10 lbs negligible
Medium 20-50 lbs 10-25 lbs 10 lbs
Heavy 50-100 lbs 25-50 lbs 10-20 lbs.
Very Heavy over 100lbs 50 lbs 20 lbs
Another portion of the FCE is focused on the relevant injured body parts and is used to determine the permanent partial impairment in that body part and assign an impairment rating to that body part.
Insofar as the portion that assesses whether the worker can perform his or her job, the FCE can also address what rehabilitation steps and what work modifications steps might help the worker who has a disability or medical condition – that otherwise prevents him/her from working.
The FCE examiner will evaluate the worker’s physical abilities. The evaluations provide data for the physician to make an impairment rating determination. The FCE examiner will typically assign an impairment rating and it is the treating doctor’s job to either “sign off” on that rating, or make modifications.
Some of the tasks an FCE examiner may review include the worker’s:
- Ability to lift
- Ability to push or pull
- How long the worker can sit or stand without discomfort
- Ability to reach
- Flexibility range
- Ability to grasp and hold an object
- The ability to bend
- The worker’s balance
- The ability to follow directions
- The ability to communicate and organize
- Walking on a treadmill
- Crouching and kneeling
The FCE examiner will:
- Conduct an intake examination
- Review your medical records
- Take an oral history
- Conduct a physical examination
The tests are often done over a four to six-hour time frame. Some examinations are conducted over a two-day period – if stamina and tolerance to pain need to be examined. Many workers who are on workers’ compensation may be trying these exercises/routines for the first time since they stopped working.
FCE exams are usually conducted by occupational therapists and physical therapists – in their own facility. Both professionals require training, education, and certification.
If at all possible, our office tries to exercise some control over your doctor’s referral to the specific FCE facility where you will be evaluated. Sometimes, as in where your physician will make a direct referral to a facility, there is little we can do. But in other cases, the doctor will simply make a general FCE referral, in which case we try to convince the workers’ compensation insurance company to allow the evaluation to be performed at certain facilities that, in our experience, will conduct a fair examination.
Unfortunately, as is the case across the medical treatment and evaluation landscape, there are certain providers and facilities whom we have come to know as being very biased in favor of the insurance companies. These facilities will almost always come back with very low ratings on their FCE evaluations, and either find that the injured worker is 100% capable of returning to work, or that the injured worker is malingering, or faking his or her disabilities and that therefore, the results of the FCE are not reliable.
How does the impairment rating work?
The impairment is generally assessed according to the loss of unction of a body part – such as limbs, muscles, joints, the brain, the spinal cord, and nerve damage.
In North Carolina, the state essentially uses a two part determination method:
- Part one is categorizing the type of disability. For each type body part, North Carolina law and Virginia Law sets forth the maximum compensation (at the workers’ compensation rate, which is 2/3rd’s of the injured worker’s average weekly wage ) the worker would receive if he/she had a 100% permanent impairment in that particular body part.
- Those laws can be found in Virginia at VA Code 65.2-503 and in North Carolina at N.C.G.S. 97-31
For example, the maximum permanent loss of use of an arm is payable for 240 weeks in North Carolina.
- Part two is assigning a percentage. The percentage is essentially a multiplier of the maximum figure that is presented in the statute. So, for example, if as in the above example, a worker has an arm injury, then we know the maximum is 240 weeks in North Carolina.
If the impairment rating is 20%, then the injured worker is entitled to 48 weeks of payments. That is 240 x 20%=48 weeks. So then you would take the TTD or compensation rate (let’s assume it’s $500.00) and multiply it times the weeks. In our example 48 weeks x $500.00=$24,000.00 in PPI money that the injured worker would be entitled to.
Attorney Joe Miller, Esq. is a respected North Carolina and Virginia workers’ compensation lawyer. He’s been helping injured employees obtain just recoveries for more than 30 years. He’ll work with your doctors to ensure your impairment rating is judged correctly. He’ll explain which tests the doctor or an FCE examiner is likely to perform. He’ll fight to make sure you aren’t forced back to work if you can’t work. He’ll also work to ensure your medical bills are aid. To talk with an experienced work injury lawyer, call North Carolina and Virginia attorney Joe Miller, Esq., at 888-667-8295 or fill out my online contact form or our new online case evaluation tool.
