Posted on Thursday, November 12th, 2020 at 12:10 pm
Different federal agencies and different states use the AMA guidelines (either directly or indirectly) to assess a worker’s permanent partial impairment. 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.
The United States Department of Labor has guidelines for evaluating medical evidence necessary to show a “ratable permanent impairment” for certain federal workers. Generally, workers who have a ratable permanent impairment are entitled to additional pay after they have reached the point of maximum medical improvement.
States, such as North Carolina and Virginia, generally use comparable guidelines in determining how much, if any, additional compensation injured or ill workers should receive due to a workplace injury or disease. In Virginia, the guidelines are not specifically mentioned by statute, but are often utilized by doctors and rehabilitation professionals to assign permanent impairment ratings to the injured body parts of claimants. Others use their own guidelines. For example, North Carolina has its own rating guide for impairment.
Before we go further, one important note about impairment ratings generally: If we have an accepted claim or a claimant who is under an Award in Virginia, and the injured worker is injured to the extent that he or she cannot return to job he/she held prior to their injury, and the employer is unable to accommodate the employee’s physical restrictions, then really, except in rare circumstances, the impairment rating is not a very important item to consider.
Why? Because first, if it is an accepted or awarded claim, and one cannot return to his or her pre-injury job, and the employer is not able to accommodate, then the employee will continue to receive TTD for potentially up to 500 weeks. So long as an injured worker is receiving TTD, then the law says he or she cannot simultaneously receive payments for permanent partial impairment (PPI) and TTD. In other words, one cannot ADD to the 500- week maximum with PPI payments.
Those PPI payments would only be available if, and when the injured worker returned to work at any job.
In addition, in the scenario of an accepted claim, we are often looking at a potential settlement of the claim. The value of the indemnity or “weekly TTD checks” portion of the claim in a case where one cannot return to the pre-injury job is usually far higher than any payment that one would be entitled to for PPI.
Accordingly, the only time PPI usually becomes more important is the scenario where the injured worker has returned to work in some capacity. Once that happens, we are going to factor those available payments into any potential settlement. In the above scenario, where the injured worker continues to receive TTD, and we are looking at a potential 500-weeks maximum of payout, we do not care as much about the ratings in any settlement scenario.
North Carolina distinguishes between an evaluation of permanent physical impairment and permanent disability. It references the AMA guidelines as follows:
The Disability Committee of the American Medical Association (AMA) has pointed out that the evaluation of permanent disability is twofold:
“Physical impairment is a purely medical condition. Permanent physical impairment is any anatomical or functional abnormality or loss after maximum medical rehabilitation has been achieved and which abnormality or loss the physician considers stable or non-progressive at the time the evaluation is made.”
In workers’ compensation cases in North Carolina there are four types of disability:
North Carolina’s rating guide for impairment is just meant to be a guide for physicians in their rating exams – since many injuries involve intangible factors such as “pain, weakness, and dexterity.” The doctor’s job is to assign a percentage to the impairment. The doctor should use hie/her independent judgement based on experience, a clinical examination, test results, and other factors to set the percentage. The North Carolina industrial Commission then uses this percentage, among other factors, to determine what award, if any, should be paid to the worker.
That being said, usually, ratings are determined within the context of rigorous testing of the injured worker at a physical therapy facility by a qualified professional known as a functional capacity examination (FCE). The doctor will usually rely on the results of the FCE to determine permanent partial impairment.
The Department of Labor guidelines reference the 5th edition of the AMA impairment guidelines. The 5th edition defines an impairment as “a loss, loss of use or derangement of any body part, organ system or organ function.” In addition, the 5th edition states:
“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 (ADL), excluding work.” (Emphasis in original).
The AMA guidelines rate various organs and bodily functions by category – such as respiratory, cardiac, nervous system, endocrine, etc.
According to Insurance Journals, the AMA guidelines for the 5th edition (2000) were updated by a 6th edition (2007). Research from McMaster University in Ontario and the Netherlands showed that the 6th edition “resulted in significantly lower impairment ratings than the 5th edition,” according to research from McMaster University in Ontario and the Netherlands. Their findings, which were published in the Journal of Occupational and Environmental Medicine, stated that the difference in the impairment ratings is that the focus on impairment ratings shifted from pain and range of motion – to direct measures of function. “For example, in an earlier guide they may have measured whether a person could lift their arm above their head without discomfort, but now they look at whether the person could put a box on a shelf.”
“The results showed the median whole person impairment rating was seven per cent for 131 claimants assessed with the fifth edition of the AMA guides, and four per cent for 118 claimants assessed with the sixth edition.”
The study made another startling finding- that the state workers’ compensation boards throughout North America are not consistent with which AMA guides they use.
According to Lexis, as of July 1, 2019, the count of States Utilizing various guidelines broke out as follows:
AMA Guides, 6th Edition 14 states
AMA Guides, 5th Edition 10 states
AMA Guides, 4th Edition 6 states
AMA Guides, 3rd Edition Revised, 2 states
State-specific guide used instead 16 states (although 15 states say AMA Guides may be consulted)
Disability is defined as follows:
Impairment is defined as follows:
North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. is a premier workers’ compensation lawyer. He’s helped thousands of injured employees obtain strong recoveries. He works with your doctors and independent doctors to properly assess your disability and your impairment rating. He’ll fight to ensure you are required to work only if you are physically able to work. To speak with an experienced North Carolina and Virginia workers’ compensation attorney, call attorney Joe Miller, Esq., at 888-667-8295. or fill out my online contact form , or utilize our new online case evaluation form.