Written by attorney Michele Susan Lewane

Impairment Ratings and Functional Capacity Evaluations in Virginia Workers' Compensation Cases

Impairment Ratings and Functional Capacity Evaluations in Virginia Workers’ Compensation Cases

I.Loss of use of a body part.

A. The legal term under workers’ compensation coverage is permanent partial disability benefits

B. The neck and back are not covered body parts under Virginia workers’ compensation coverage; however, many times if the injured worker has a back injury which causes problems with their legs, or if they have a neck injury which causes problems with their arms, there can be a rating to those limbs that is covered under workers’ compensation.

C. There is no impairment rating for pain and suffering

II.Several things must occur before the injured worker can get permanent partial disability benefits.

A. The patient must be at maximum medical improvement.

B. The treating physician has to give them a disability rating to their body part that has been injured.

  1. The doctor can do his own rating; or

2.The doctor can order and FCE be done and then approve the rating recommended in the FCE

C. The insurance company either agrees to the rating or can have another FCE and another rating

D. The injured worker must prove his impairment. The Commission, when confronted with two different ratings, can average them. However, the treating physicians’ opinion is given greater weight.

E. The insurance company is not required to pay for the FCE to get an impairment rating but only has to pay for the FCE to clarify work restrictions.

III.What are the AMA Guidelines?

TheGuides were designed to prove a standard framework and prevent inconsistent results among patients

IV. Why the use of the AMA Guidelines, 6th Edition, is unacceptable.

The AMA Guides for the Evaluation of Permanent Impairment is the gatekeeper to receipt of permanent disability benefits.

A. The term “disability" is redefined in the Sixth Edition. Disability is defined as “activity limitations and/or participation restrictions in an individual with a health condition disorder or disease." This is a significant change from Fifth Edition’s definition of disability as “alteration of an individual’s capacity to meet personal, social or occupational demands or statutory or regulatory requirements because of impairment."

B. Impairment values have been lowered in the Sixth Edition. Impairment is redefined as “significant deviation, loss, or loss of use of any body structure or body function in an individual with a health condition, disorder or disease." The Sixth Edition adds the word “significant" to the definition. Examples of rating reductions in the Sixth Edition include the following:

· Distal biceps tendon rupture, Sixth Edition impairment (WPI%): 4% Fifth Edition impairment (WPI%): 6%

· Total ankle replacement with poor result, Sixth Edition impairment (WPI%) 24%, Fifth Edition impairment (WPI%) 30%

· Total knee replacement, Sixth Edition impairment (WPI%) 15%, Fifth Edition impairment (WPI%) 20%

· Hip fracture, Sixth Edition impairment (WPI%) 12%, Fifth Edition impairment (WPI%) 25%

C. The Sixth Edition takes away range of motion model for ratings. There are two systems for rating impairment in the Fifth Edition: the diagnostic related estimate (DRE) and the range of motion model (ROM). Functional factors like strength, endurance, and coordination are more individualized, and the ROM considers these factors and DRE does not.

D. The Sixth Edition takes away pain as a factor in impairment ratings Perhaps the most egregious take-away in the Sixth Edition is the further deprecation of pain as a factor in impairment ratings. The pain add-ons in the Fifth Edition are no longer permitted in the Sixth Edition.

E. The Sixth Edition forces individuals into specific categories. The demand that all impairment be verified by objective findings is at odds with realistic understanding of how injuries disable people. Apart from a few conditions-such as loss of limb, blindness or a coma – most injuries do not prevent people from working due to mechanical failure. Rather, a worker is disabled by a variety of unbearable sensations attempting to work. It is called the “5gh vital sign," or pain

F. ADL scales are now adequately accounted for in the Sixth Edition. Functional losses, in terms of ADLs, are simply not manifest in the impairment ratings.

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