2018-11-14
If you are hurt on the job what are you entitled to receive for permanent disability and what things are used to determine the amount? Is there one thing that matters the most?
Since September 1, 2011, the law has required the Workers’ Compensation Commission to consider 5 factors when determining permanent disability. These are: 1) the AMA impairment rating, 2) the occupation of the injured person, 3) the person’s age, 4) the person’s future earning capacity, and 5) evidence of disability corroborated by treating medical records. The list seems short but it has spawned years of legal fighting over the meaning of each factor and whether all of them are required before there can be any award of permanent disability.
We finally have an answer to the last question. On June 28 the appellate court for workers’ compensation claims ruled that no one of the factors counts more than the others and the Commission does not need to have evidence of all of them in order to award permanent disability.
Since the law was changed in 2011 insurance companies have trumpeted the AMA rating as the be all and end all for permanent disability. They hire some doctor to produce a rating and then tell the injured worker that is what you get. Of course, the insurance company doesn’t tell you that the AMA rating, in its own words, is an “impairment” rating and not a disability determination. These two things might sound the same but in the eyes of the law they are not even first cousins.
A typical AMA rating for someone who has rotator cuff repair surgery might be in the area of 4% of the person as a whole, even though the person cannot lift his arm past shoulder height, reach to the middle of his back above the waist or work overhead. For most construction workers the inability to work overhead is the end of a career. Yet, according to AMA guidelines and plenty of insurance companies, that gets you 4% which is 20 weeks of permanent disability. For someone who made $1,000 per week that is $600 per week for 20 weeks. Not much of a deal for a busted career!
Time and again we see injured people who didn’t think they needed a lawyer show up in court to have a settlement approved by the arbitrator. The insurance company, who was sooooo concerned about the person’s welfare, sends their lawyer to tell the arbitrator that the chicken feed settlement is based on an AMA rating so it has to be Ok. The arbitrator asks the person if they want to accept the settlement and then approves it and off they go with a few pennies for a lifetime of pain and disability.
Impairment and disability are not the same thing. Don’t be fooled by an insurance company that points to a number that their doctor calculated based on a book that was never meant to judge disability and says that is what you get and aren’t we great to give it to you without a fight. Insurance companies use experienced claim adjusters trained in how to pay the least amount possible backed up by lawyers who handle claims every day and know how to sell refrigerators to Eskimos with no electricity. Without help of your own the injured person looks like fresh meat at the sausage factory.