Permanent Impairment Awards:
From MMI through Calculation &
Approval
Presented by:
Getman, Schulthess & Steere, PA
Three Executive Park Drive Ste 9
Bedford, NH 03110
603-634-4300
and
Jo-Ann Dixon
Permanent Impairment Coordinator
New Hampshire Department of Labor
281-A:32 Scheduled Permanent
Impairment Award
I. Basic Award. Except when death results
from injury, in addition to other benefits
payable under this chapter, an award shall
be paid to employees in amounts provided
by RSA 281-A:28 for the number of weeks
set forth in this section for permanent
bodily loss or losses:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
Total loss of arm 210
Total loss of hand 189
Total loss of thumb 76
Total loss of index finger 47
Total loss of middle finger 38
Total loss of ring finger 19
Total loss of little finger 9
Total loss of leg 140
Total loss of foot 98
Total loss of great toe 18
Total loss of toe, other 3
Total loss of vision--one eye 84
Total loss of vision--both eyes 300
Total loss of hearing in one ear 30
Total loss of binaural hearing 123
phalanx /pha·lanx/ (fa´langks) pl. halan´ges [Gr.]
1. any bone of a finger or toe.
Each finger has three phalanges
(the distal, middle, and proximal);
the thumb only has
Two metacarpal bones –
Phalanges
II. A loss in excess of the distal phalanx
shall entitle the employee to the award for
the loss of the entire digit. A loss of a
distal phalanx shall result in half the
award for the loss of the entire digit. A
loss of less than one phalanx shall
result in one quarter of the award for
the loss of the entire digit.
Calculation for a finger
amputation (RSA-32 II)
• Less than whole distal phalanx = 25% digit
impairment
• Whole distal phalanx loss = 50% digit
impairment
• Excess of distal phalanx = 100% digit
impairment
Two or More Digits
IV. The loss of 2 or more digits, or the
loss of one or more phalanges of such
number of digits, of a hand or foot, shall
entitle the employee to an award
proportioned to the loss of use of the
hand or foot occasioned by that loss;
except that the income benefits for the
loss of a hand or foot may not be
exceeded. (189 Hand 98 Foot)
Amputated Arm or Leg
III. The amputation of an arm or leg at or
above the elbow or at or above the
knee, respectively, shall entitle the
employee to the award for the loss of the
arm or leg. Otherwise, amputation of an
arm or leg shall result in the award for the
loss of a hand or foot.
Total Loss of Use
VI. An award for the permanent total loss
of the use of a member shall be
identical to that for the loss of the
member, except that amputation of such
member resulting from the original or
subsequent injury shall not entitle the
employee to a further award under this
section.
Partial Loss of Use
VII. An award for the permanent partial loss of
the use of a member.
Such award shall be in the proportion that
such partial loss bears to a total loss.
If subsequent amputation of such member
occurs an additional award shall accrue on the
basis of the difference between the award for
the newly established loss and the award for
the original loss.
Subsequent Amputation
VIII. Upon amputation which has been
preceded by the loss of a component or
part of such member, an additional
award shall accrue on the basis of the
difference between the award for the
newly established loss and the award
for the original loss.
281-A:32 Scheduled Permanent Impairment
Award
- Multiple Losses Spinal Injury, Brain and Burns
IX.
If an injury results in more than one permanent
bodily loss specified in paragraphs I-VIII,
If the injury is to the spinal column or the spinal
cord, or to the brain, or involves scarring,
disfigurement, or other skin impairment resulting from a
burn or burns------Award shall be made on the basis of a maximum of
350 weeks weeks to be determined in proportion to the
maximum in accordance with the percent of the whole
person specified for such bodily losses in the 5th edition of
Guides to the Evaluation of Permanent Impairment''
• (P.) Spinal column/cord, Burn
scarring/disfigurement or Brain injury – AMA
Guide Whole person, capped at 350 weeks.
• (Q.) More Tan One Permanent Loss – specified
in paragraphs I-VIII --- Whole Person, combined
Values Chart, capped at 350 weeks***
*** No spinal soft tissue injury or Combined Values
Impairment for Spinal injury unless spinal injury
results in the loss of use of an upper or lower
extremity
Appeal of Hiscoe (2001)
II. Permanent Impairment
The board also concluded that the petitioner
was not entitled to a permanent impairment
award because her injury was a soft-tissue
injury and therefore not a compensable
permanent impairment. See RSA 281-A:32, IX;
In re Petition of Abbott, 139 N.H. 412, 415
(1995).
281-A:32 Scheduled Permanent
Impairment
Award
Payment of the scheduled award becomes due upon prompt
Medical disclosure, after maximum medical improvement
Has been
achieved,of the scheduled award
Due.
Payment
XI. Payment
becomes due upon prompt medical disclosure, after
maximum medical improvement has been achieved,
regarding the loss or loss of the use of the member of
For the purposes
of determining
disability rates,
the average weekly
the body.
For the purposes
of determining
disability
wage used
shall the
be the
average weekly
wage
of theused
employee
at the
rates,
average
weekly
wage
shall
be the
time of the
injury weekly wage of the employee at the time of the
average
injury. No later than 15 days following such disclosure
the employer, or the employer's insurance carrier shall
notify the commissioner as to whether it objects to the
extent of the loss claimed by the employee, in which
later than
15 days
following
disclosure
employer, or the
case No
it shall
have
30 days
to such
arrange
for athemedical
employer'spursuant
insurance carrier
shall281-A:38,
notify the commissioner
as to whether
examination,
to RSA
and request
a
it objects
the extent of the by
lossthe
claimed
by the employee, in which case
hearing
and to
determination
commissioner.
it shall have 30 days to arrange for a medical examination, pursuant to
Payment
of the scheduled award shall be made in a
RSA 281-A:38, and request a hearing
single payment.
281-A:32 Scheduled Permanent
Impairment Award
XIV. Rulemaking Required. In order to reduce litigation
and establish more certainty and uniformity in the rating
of permanent impairment, the commissioner shall adopt
rules, under RSA 541-A, incorporating by reference
the 5th edition of the American Medical Association's
“Guides to the Evaluation of Permanent Impairment”
to determine the degree of permanent impairment and
on which to base awards under this chapter.
Effective Date = June 26, 2008
6th Edition from 1/108 to 6/26/08
Lab 506.02
i) Carriers, self-insured, employers or third party
administrators shall pay a permanent
impairment award for the, loss of specified
members or parts of the body 'or for loss of the
use thereof under RSA 281-A:32,
(j) In order to determine if a permanent
impairment award is owed, the carrier shall:
(1) Contact the injured employee or the
employees’ treating physician to advise
them of the need of a permanent
impairment evaluation which shall:
Lab 506.02
Continued…
a. Be based on the most recent edition of the
Guides to the Evaluation of Permanent
Impairment, published by he American Medical
Association;
b. Contain affirmation from the submitting
physician that the findings for permanent bodily
loss were determined from the Guides.
c. Contain medical evidence that the injured worker
has reached maximum medical improvement;
Lab 506.02
Continued…
(2) Advise the injured worker that if the treating physician
does not perform permanent impairment evaluations, the
physician may refer the employee to a physician that
does perform permanent impairment evaluations;
(3) Pay the cost of the initial permanent impairment
evaluation by the treating or referring physician;
(4) Submit "Memo of Permanent Impairment Award" form
10WCA together with the medical reports that support the
impairment rating within 15 days of receipt of the physicians
report if no objection is filed;
Lab 506.02
Continued…
(5) Pay the permanent impairment award within 5
days of receipt of the approved "Memo of Permanent
Impairment Award" form 10WCA;
(6) Pay the permanent impairment award based on the
physicians report that used the American Medical
Association Guides published by the American
Medical Association except where RSA 281-A:32 II is
more favorable to the injured worker;
(7) Pay the award in a single payment based on the
average weekly wage of the employee at the time of the
injury;
AMA Guides 2.6 Preparing Reports
A clear, accurate and complete report is
essential to support a rating of permanent
impairment. The following elements in
bold type should be included in all
impairment evaluation reports. Other
elements listed in italics are commonly
found within an IME or may be requested
for inclusion in an impairment evaluation.
2.6a Clinical Evaluation
2.6a.2 Include a work history with a detailed,
chronological description of work activities.
2.6a.3 Assess current clinical status, including
current symptoms, review of symptoms, physical
examination.
• 2.6a.4 List diagnostic study results and
outstanding pertinent diagnostic studies.
• 2.6a.5 Discuss the medical basis for
determining whether the person is at MMI.
2.6a.6 Discuss diagnoses, impairments.
2.6.a.7 Discuss causation and
apportionment, if requested, according to
recommendations outlined in Chapters 1 and 2.
2.6.a.8 Discuss impairment rating criteria,
prognosis, residual function and limitations.
2.6.a.9 Explain any conclusion about the need
for restrictions or accommodations.
2.5c Consistency
Consistency to ensure reproducibility and
greater accuracy. These measurements….
lumbosacral spine range of motion are good but
imperfect indicators of people's efforts. If, in
spite of an observation or test result, the
medical evidence appears insufficient to
verify that an impairment of a certain
magnitude exists, the physician may modify
the impairment rating accordingly and then
describe and explain the reason for the
modification in writing.
AMA Guides 1.6 Causation,
Apportionment
Analysis and Aggravation
Medical or scientifically based causation
requires a detailed analysis of whether the
factor could have caused the condition,
based upon scientific evidence and,
specifically, experienced judgment as to whether
the alleged factor in the existing environment did
cause the permanent impairment, Determining
medical causation requires a synthesis of
medical judgment with scientific analysis.
AMA Guides1.6b Apportionment
Analysis
Apportionment analysis in represents a distribution
or allocation of causation among multiple factors
that caused or significantly contributed to the injury
or disease and resulting impairment. The factor could
be a preexisting injury, illness, or impairment. The
physician may be asked to apportion or distribute a
permanent impairment rating between the impact of
the current injury and the prior impairment rating.
Before determining apportionment, the physician needs
to verify that all the following information is true for
an individual:
1. There is documentation of a prior factor.
2. The current permanent impairment is
greater,
3. There is evidence indicating the prior factor
caused or contributed to the impairment,
based on a reasonable probability (> 50%
likelihood).
Appeal of Fournier (2001)
The Guides …require such a procedure if
"apportionment" of an impairment is necessary.
"Apportionment" is a term of art in the Guides
which is defined as "an estimate of the degree
to which each of various occupational or
nonoccupational factors may have caused or
contributed to a particular impairment." Id. at
315. Thus, apportionment would be appropriate
if, for instance, the petitioner had had a previous
carpal tunnel injury caused by something other
than her work for the employer.
AMA Guides 2.5h Changes in
Impairment
from Prior Ratings
Although a previous evaluator may have
considered a medical impairment to be
permanent, changes may occur: the
condition may have become worse as a
result of aggravation or clinical
progression, or it may have improved.
Note-which guides to use?
Appeal of Louis Cote (2001)
The petitioner first asserts that the board erred in
rejecting Dr. Myers‘ permanent impairment
evaluation because Dr. Myers is the only
doctor who conducted the specific
permanent impairment assessment physical
examination required by the Guide. Pursuant
to section 3.3 of the Guide, each permanent
impairment evaluation "should include a
complete, accurate medical history and a
review of all pertinent records, [and] a careful
and thorough physical examination. “
Appeal of Rainville (1999)
The employer contends that the board
correctly rejected Dr. Nagel's evaluation
because he failed to follow the AMA Guides
as required by RSA 281-A:32, IX. During the
hearing before the board, Dr. Nagel admitted
that the AMA Guides does not refer to
myofascial pain and that the petitioner did not
have any of the listed physical conditions. Dr.
Nagel testified that the AMA Guides "has a
couple of sections that allow you to go
outside ... of [its] basic techniques of range
of motion [to assess impairment]."
Appeal of Rainville (1999)
The AMA Guides expressly allows a
physician to deviate from the
guidelines if the physician finds it
necessary to produce an impairment
rating more accurate than the
recommended formula can achieve.
Appeal of Rainville (1999)
The decision however, must be grounded
in adequate clinical information about
the patient's medical condition.
Additionally, in order to allow a third party
to compare reports properly, physicians
must utilize a standard protocol in
evaluating and reporting impairment. "A
clear, accurate, and complete report is
essential to support a rating of
permanent impairment."
Appeal of Rainville (1999)
Whether the statutory requirements of RSA 281-A:32,
IX have been satisfied is a legal question we review
de novo. See Petition of Blackford, 138 N.H. 132,13435,635 A.2d 501, 502-03 (1993). RSA 281-A:32, IX
mandates that the AMA Guides be used to calculate
the percent of the whole person impaired as a result
of multiple permanent bodily losses. It is the statute
that governs whether a permanent impairment
exists; the AMA Guides applies only to the
determination of appropriate compensation for a
permanent impairment. We therefore examine the AMA
Guides to evaluate the legal sufficiency of Dr. Nagel's
assessment.
Appeal of Fournier (2001)
We disagree with the employer's
characterization of the Guides as "evidence,"
and conclude that the CAB could have
properly considered the Guides because
their use is required by administrative rule,
as authorized by statute. See N.H. Admin.
Rules, Lab 508.01(d); RSA 281-A:32, XIV
(Supp. 2000). We therefore examine the Guides
to evaluate the legal sufficiency of a doctor's
permanent impairment assessment. See Appeal
of Rainville, 143 N.H. 624, 631 (1999).
Petition of Gilpatric (1994)
We hold that Dr. O'Neil's diagnosis and evaluation
constitute competent medical testimony that
supports the hearings officer's decision. Gilpatric's
treating physician, Dr. Noboru Murakami,
examined her and submitted reports to the
department.
Dr. O'Neil's calculation of eight percent permanent
impairment, following the "Guides to the
Evaluation of Permanent Impairment" published
by the American Medical Association, is also
found to be reliable. See RSA 281-A:32, XIV
(Supp. 1993); N.H. ADMIN. RULES, Lab 514.03.
Petition of Markievitz (1992)
The triggering of a claimant's entitlement to a scheduled
award may occur either at the time of the injury or
when sound medical opinion has determined that
"further medical treatment will be of no avail and that
the loss is permanent." In this case, although the
petitioner was injured on May 4, 1988, the permanency
of his injury was not determined until September 6, 1990.
Therefore, prior to September 6, 1990, the petitioner
had no right to "claim" a permanent partial
impairment award based on injury to the spinal column,
and his employer had no obligation to provide such
compensation.
Appeal of Cote (2001)
The respondent contends that the relevant date for
the applicable compensation rate is the date of
maximum medical improvement. While our case law
regarding permanent impairment has focused upon the
date maximum medical improvement is established as
being the relevant date for the accrual of benefits, see,
e.g., Ranger v. N.H. Youth Dev. Center, 117 N.H.
648,651 (1977); Petition of Markievitz, 135 N.H. 455, 457
(1992), the instant case is distinguishable. Here, the
legislature has explicitly provided that the decreased
compensation rate applies only to injuries that
occurred on or after February 8, 1994.
60% Rule at Issue
Appeal of Lorette (2006)
In the 2003 amendment to RSA 281-A:32, XI, the
legislature provided that for purposes of calculating the
permanent impairment award, "the average weekly
wage of the employee at the time of the injury" shall
be used. RSA 281-A:32, XI. However, this amendment
did not change the date upon which the employee's
right to the award accrues; this date remains the
date of the permanent impairment assessment. RSA
281-A:32, X; Appeal of Cote, 144 N.H. at 129; Petition of
L’Heureux, 132 N.H. at 500-01; Petition of Dependents
of Doran, 123 N.H. at 433.
Interest on Permanency Award
• RSA 281-A:44
– IV. Interest on awards for a scheduled permanent
impairment shall be computed from the date when
payment is due under RSA 281-A:32,XI.
• RSA 281-A:32
– XI. Payment Due. Payment of the scheduled award
becomes due upon prompt medical disclosure,
after maximum medical improvement has been
achieved, regarding the loss or loss of the use of the
member of the body.
(a) The carrier shall supply on Form J
QWCA the following information:
• (1) Name of the employee;
• (2) Name and federal identification number of the employer;
• (3) Name and address of the insurance carrier;
• (4) Adjusting office number assigned to the carrier by the labor department;
• (5) Date of injury;
• (6) The name and address of the employer;
• (7) The average weekly wage at the time of the injury;
• (8) The percentage and the body part which is permanently impaired;
• (9) The temporary total compensation rate to which the
clairi1ant is entitled;
• (10) The number of weeks of compensation to which the
claimant is entitled as a result of this award;
• (11) The date that the carrier started paying this award;
• (12) The average weekly wage at the time the
permanency was first evaluated;
• (13) The date the form was completed;
• (14) Signature of person completing this form; and
• (15) Title of the person completing this form.
Calculating a Permanent
Impairment Award
The % of impairment multiplied by the RSA-32 schedule amount
of weeks for body part times the compensation rate established at
time of injury.
We do look up all MOP's and Wages. If they are not on file, I will
call and request them.
If state forms are not on file, or filed incorrectly and not
amended, a request to recoup overpayment of a Permanency
Award will be denied. All requests to recoup an overpay must be put
in writing and submitted with the award and must explain how the
overpay occurred. If I cannot substantiate the requested amount I
will call for further documentation. An overpayment cannot be
deducted from a Permanency Award until this department gives
approval.
THIS IS VERY IMPORTANT
If you do not object in writing to a treating
physician's rating, you will owe the claimant his
treating physicians percentage rating. If you
choose to negotiate any kind of settlement
between parties, an objection still needs to be
filed within the 15 days of receipt of the treating
physicians rating. If you fail to put an objection
in writing and copy all parties, the claimant
can request Administrative Approval from
this department and it maybe granted.
NOTES FOR PI
When reading the doctor's rating and report, make sure
they are using the correct body part.
Upper extremity involves the shoulder, elbow and arm.
Lower extremity involves the leg; the foot is not part of
lower extremity.
Do not convert a rating to whole person if only one
body part is involved.
The spine/back is not whole person, but is still 350
weeks.
Anatomical Planes of the Body
Second, you will consider the planes of the body. Understanding these will
facilitate learning terms related to position of structures relative to each
other and movement of various parts of the body.
FRONTAL (or coronal)
separates the body into
Anterior and Posterior
parts
MEDIAN (or midsagittal)
separates body into
Right and Left parts
HORIZONTAL separates
the body into Superior
and Inferior parts
SAGITTAL any plane
parallel to the median
plan
TERMS OF RELATION OR POSITION
superior (closer to the head
Inferior (closer to the feet)
reference point – horizontal
plane
posterior (dorsal) closer to the
posterior surface of the body
medial
anterior (ventral) closer to the
anterior surface of the body
reference point – frontal or
coronal plane
medial (lying closer to the
midline)
lateral (lying further away from
the midline)
reference point – sagittal plane
Proximal closer to the origin of
a structure
distal further away from the
origin of a structure
reference point – the origin of a
structure
superficial
deep
reference point – surface of
body or organ
median
reference point – along the
midsagittal or median plane
intermediate
between two other structures
external
internal
Refers to a hollow structure
(external being outside and
internal being inside
supine
prone
face or palm up when laying on
back, face or palm down when
lying on anterior surface of
body
cephalad
caudad
Toward the head, toward the
tail (feet)
TERMS OF MOVEMENT
flexion
extension
increasing angle with frontal plane
decreasing angle with frontal plane
abduction
adduction
moving away from or toward the
sagittal plane
protraction
Retraction
moving forward or backward along a
surface
elevation
depression
raising or lowering a structure
medial rotation
lateral rotation
movement around an axis of a bone
pronation
supination
placing palm backward or forward (in
anatomical position)
circumduction
combined movements of flexion,
extension, abduction, adduction medial
and lateral rotation circumscribe a cone
opposition
bringing tips of fingers and thumb
together as in picking something up