The ONLY Guide To Impairment Ratings You’ll Ever Need!

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The ONLY Guide To Impairment Ratings You’ll Ever Need!

What Is An Impairment Rating?

What is an impairment rating in workers’ compensation? The term impairment rating is a very generic term and it can mean a lot of different things. It could mean a disability rating as to your period of time while you're temporarily disabled. It could talk about your disability rating when you're permanently disabled and it can also talk about your disability rating if you have a permanent partial disability versus a schedule loss of use.

It generally just means a level of your disability at a particular point in time. However, more specifically, when we use the term impaired rating in the New York workers' compensation world, we are generally referring to a person's permanent partial disability, and that is to be in contrast to what's otherwise known as a schedule loss of use. Okay. As we discussed in earlier videos, there are generally two categories of permanent disability here in New York State.

You have your permanent partial disability. These are injuries stemming from head neck back injuries, psychological disabilities, systemic injuries, core body injuries. They can also be combinations of multiple injuries, schedule loss of use. On the other hand, are injuries to extremities, hands, feet, arms, legs, things like that. A permanent partial disability can be assignable in a case to an extremity, so a really, really horribly injured arm.

If the level of disability is so significant, that could be converted to a permanent partial disability. Or if you have multiple injuries, if you hurt your head neck and back and your left arm and your left leg in an accident and you're still out of work at the time of your permanent disability determination, you would be looking for an impairment rating for permanent partial or permanent total disability.

Why Is An Impairment Rating Important?

Why is the impairment rating so important to your workers' compensation case and how does it affect your benefits? An impairment rating of a permanent partial disability or permanent disability is used to determine your overall LWEC is the term we use. That's loss of wage earning capacity when we combine your disability with your vocational background. So we use this example all the time.

If you take two people, two people with the exact same injury, the same back injury, for instance, they both have a herniated disc and L5 S1 and person number one speaks seven different languages and is a college graduate and person number two cannot read or write and only speaks of particular language, which is not very widely used throughout the world.

If both of those people have the same physical permanent disability, let's just say they both have a 50% permanent disability. The individual with the schooling in the background might have an easier time finding a job given his injury in the future as opposed to the other person. So that 50% disability for the highly educated, multilingual person might actually be more like a 30% disability, whereas the person who has no formal education can't read or write and only swap floors in his entire life, his 50% disability might be more like a 70% disability.

So LWEC, loss of wage earning capacity is when we take your physical disability, the disability resulting from your work accident, we combine your vocational factor in and the judge will determine an overall LWEC loss of wage earning capacity. So your impairment rating is crucial. It's half, if not more, of the determination as to what your overall level of permanent impairment is and how much you're entitled to moving forward.

Now, Schedule Loss of use is different. Your vocational background does not play a role in those awards. A schedule loss of use is paid to you based upon the percentage of impairment to the body part. 50% of a thumb, 40% of a wrist, 10% of a shoulder. It's a flat rate based upon the value of that body part.

Like I said before, a thumb is worth 75 weeks for a total loss of use of the thumb. Total loss of use of an arm is 312 weeks. So if you have a 10% permanent loss of use of your arm, you get 31.2 weeks and that's payable at the maximum rate of compensation. Your total rate, two thirds of your gross salary, your gross weekly salary up to the statutory maximum.

So, they're paid differently. Vocational factors are not considered when determining schedule loss of use.

Who Calculates Your Impairment Rating?

Who calculates your impairment rating and when in your workers' compensation case does it happen? So, maximum medical improvement generally, your assessment for your permanent disability, whether it's a permanent partial disability or an overall head neck back injury or if it's a schedule loss of use, if they're trying to figure out how much damage to your elbow you had from that accident.

Those assessments are made by a doctor when you reach maximum medical improvement. Now they are opinions, they’re medical opinions, and like any opinion, there's differing opinions. So your doctor might find that you're not yet in maximum medical improvement and might think that you still need more treatment and the insurance company might send you out to see their doctor and their doctor might say that you have reached maximum medical improvement and you're done with your treatment. So there might be a difference of opinion there.

Also, both doctors might agree that you have reached maximum medical improvement and might have a differing opinion, as they oftentimes do, as to what your level of permanent disability is. It's funny how, generally speaking, treating doctors find a little higher, career doctors find a little bit lower.

But hey, what did you expect? That's what your lawyer is here to do. And it's to make sure that we can maximize your values and get you as much money that you would be entitled to as possible. So the impairment rating could be calculated by either doctor at virtually any time. Once they determine that you've reached maximum medical improvement, they should be offering that opinion.

A lot of times it comes from the insurance side first when they send you out to see their doctor. But not always. A lot of time it can also come from your doctor. Once they reach to that conclusion that you've reached maximum medical improvement, you don't need any more care, you don’t need any more treatment, they're going to start assessing you for your permanent disability rating, whether it's for permanent partial disability or if it's for schedule loss of use, like we discussed earlier.

How Is Your Impairment Rating Calculated?

How is your impairment rating calculated? Are different body parts calculated in different ways? So again, going back to what we discussed before with schedule loss of use and non schedule loss, permanent partial disability, extremity injuries versus core body head, neck and back, calculations are done differently. The Workers' Compensation board here in New York City has a document called the Medical Treatment Guidelines for Determining Permanent Impairment.

And basically this document outlines for the doctors a framework that they should be using when determining your impairment rating. There's various factors that they consider when determining your impairment rating, whether it's impairment of a head, neck or back injury or if it's an extremity injury and the determining schedule loss of use. These factors include what you're diagnosed injury was, whether you've had surgery, what type of surgery you've had.

There's also, especially with respect to schedule loss, there's things known as special considerations and most importantly for virtually every body part range of motion is is the biggest factor in determining a person's permanent impairment. A shoulder should be able to go 180 degrees up and 180 degrees forward. And if you can't all, it's going to go this high.

You know that that's a factor determining your permanent disability that goes for schedule loss and non schedule injuries, head, neck and back injuries. How far you can flex whether with a bad back, how much you can turn or rotate a neck, all factors in determining your overall level of impairment. So those are generally the considerations that the doctors on either side are going to use to determine what your overall level of disability is.

What If You Injured Multiple Body Parts?

What if you have multiple injured body parts? How is your impairment rating calculated? So if you have multiple body parts, it really depends on what those body parts are, it depends on what your situation is at the time that permanency or permanent disability is being assessed and it also depends on which of the injuries are the are more severe and which are less severe. If you are out of work, a permanent partial disability award.

So an award for an ongoing permanent injury to a neck or back is only compensable if you're not working or if you're working at reduced earnings. So if you hurt your back and you go back to work and you're earning the same amount or more than if than when you got hurt, as bad as your back might be, you're not going to get any additional financial compensation.

You'll still get treatment, but you're not going to get money. If you hurt your back and you go back to work and you're earning half as much as you earned before because you can only work half the hours because you're back as bad, well then you are entitled to workers' compensation, money benefits. You are entitled to up to two thirds of the difference between your pre accident salary and your current salary up to the statutory maximum.

So potentially you could get money even if you do go back to work with a bad back or a bad neck or a stroke or a heart attack or anything like that, a concussion, if you do go back at at reduced earnings. If you are unable to return to work at all as a result of any of those injuries, core body injuries like we discussed, that's when you are entitled to ongoing awards.

Now, by the same token, if you do go back to work and you have a head and neck back injury, but you also have a bad shoulder or bad knee, you might be able to get the value of the shoulder or the knee, depending on the circumstances and the facts of your particular case. And that might be the route to go, that might be the more beneficial route for you and might get you more money overall. If you have multiple body parts, head, neck, back, shoulder, knee, everything, we have to we have to look at your particular set of circumstances.

What's your work status? Which of the injuries are more severe and where's the value? This is where it's crucial to have a lawyer. This is not something you're going to be able to easily figure out on your own. And as helpful as an insurance company might sound on the phone, it might sound in the letters that they send you if you're not represented, they are not there to maximize the money you're going to get. They're there to protect their own interests. So very, very important to have a lawyer at this at this point.

And it's probably a good point in time for me to mention, if you do need a lawyer, if you need help, if you have questions, please give me a call at 212-406-8989.

How Are Head Injuries Calculated?

TBI is a traumatic brain injury, for those who don't know. How are concussions, TBIs, we could just call them “head injuries” calculated into an impairment rating? So clearly with with a head injury, unless there's a associated neck injury, range of motion is not really a factor here.

But the medical treatment guidelines for determining permanent impairment do address that. You want to make sure you're seeing a reputable neurologist who’s able to run you through the proper neurological testing in determining permanent impairment. Your doctor should be recommending, if necessary, a brain scan and MRI with DTI imaging, I believe it's called, where they take a look at the brain to see what type of physical pathology, physical changes occurred as a result of the accident and the injury. The traumatic brain injury, a concussion, is when your brain hits the side of your skull and you bruise your brain. And depending on how severe that is, you know, some of those injuries, as we know, can be permanent in nature. So there is a way to determine permanent impairment for a brain injury. And those types of injuries follow the same path as a permanent partial disability, similar to a neck or a back.

Can A Pre-Existing Injury Affect Ratings?

Can a preexisting injury negatively affect your impairment rating? And the quick answer is yes. Preexisting conditions to the same body part. If you hurt your knee playing football in high school and then you hurt the same knee last year or two years ago at work, yes, it can negatively affect your impairment rating if you did suffer from a permanent injury the first time and that permanent injury was worsened.

What we discuss here is what's known as apportionment. So it could be a 20 year old accident, it could be a two year old accident. If you injured the same body part more than once, ultimately, you're going to want or the judge is going to want a determination as to apportionment, how much of your overall disability today, now that you're sitting here with this 20, 30, 40% loss of use of the knee or the shoulder or whatever, how much of that is apportion-able to the old accident and how much to the new accident?

And again, very, very important to have a lawyer here because they're going to help make arguments. They're going to help you. You know, there's an argument to be made that maybe you did blow out your knee in college playing football 20 years ago, but you've been working ever since you graduated college and you never lost any time from work because of that bad knee.

It never impacted your ability to do work until now. And now this was the straw that broke the camel's back. Or it's this new accident that caused you to go out of work, or it's this new accident that's causing you to lose significant amounts of time or requires surgery. So despite the fact that you might have had that old, old accident, maybe the argument is there to be made that the majority of your disability today is from the new accident and is compensable under that claim.

What If You Disagree With An Impairment Rating?

What if you disagree with an impairment rating in your comp case? Is there a way to challenge it? Well, we got to talk about what stage of the game are we and where are we that you don't agree with the impairment rating. If you just finished seeing your doctor and he files your report, he says, "By the way, you have a 5% permanent loss of use of your knee or you have relatively minor back injury." If you don't like what your doctor has to say, you need to talk to your doctor about that. Your lawyer is not going to get involved there.

If you're at the stage where the judge has already made a decision as to your level of permanent impairment, there is a way to challenge and you potentially could file an appeal. Now, generally speaking, in the legal world, an appeal should be filed if the judge made a mistake as to his application of the law or his or mistake as to his understanding of the facts, if you made a factual error or legal error, then an appeal is warranted. Simply because you don't agree with a judge's decision, doesn't necessitate an appeal.

But that doesn't mean it doesn't happen. People still do it. But generally speaking, appeals come when there are errors of fact and errors in law.

What If Your Disability Worsens?

What if your impairment worsens? What if your disability worsens after an impairment rating is assigned, can your rating be reevaluated? Generally speaking, once a judge has made a decision as to your level of permanent disability and again, whether that's permanent partial disability, an LWEC, schedule loss of use, generally, it's very difficult to to be reevaluated.

You need to show a significant change worsening in your condition in order to do that. It's very difficult because you need to show that something different and much worse happened to you in your circumstance to warrant a reconsideration. You need to show a significant worsening in condition.

How Can You Get A More Favorable Rating?

What can you do to get a more favorable impairment rating in your case?

Are you allowed to get a second opinion? Generally speaking, no. If you're at that level, the point in time in your case where it's time for permanency rating, you've reached maximum medical improvement, your treating doctor is done treating, and it's that doctor that you're relying upon after he's seen you all this time and given you all this treatment to give you an opinion as to your level of permanent disability.

If you don't like what he has to say, you go and run to another doctor and try to get a better opinion that helps you more, it's frowned down upon a lot. It's called “doctor shopping” and generally speaking, the insurance company is going to put up a significant fight if you do that, and the judge probably won't allow it.

If you change doctors halfway through your treatment or at some point in time during your treatment, that's something that's a little more permissible because you're allowed to change your doctors the same way. Like we said earlier, you're allowed to change lawyers. If you're not happy with the way your doctor's treating you. If you have a difference of opinion, if you don't like, you know, the treatment you're getting or if you just don't like your doctor, you're allowed to change doctors. That's not necessarily getting a second opinion, that's starting treatment with a new doctor. So you are certainly allowed to do that. But you can't just go run around, see as many doctors as you want until one of them writes you a report that you find beneficial. That is not permissible.

Impairment Rating Pro Tips

Any pro tips for injured workers who will receive an impairment rating? Yeah, first and foremost, I've said this in 100 different videos, always be upfront and honest about prior accidents, prior injuries, prior conditions. The 20 year old knee injury from college, the car accident five years ago, even if it was minimal, let them, let your doctors know about it. Let the insurance company doctor know about it. Let the judge know about it. Get out in front of it.

It's so much easier to get out in front of a problem and say, “Look, I had this car accident five years ago. I saw a chiropractor for about a month and that was it. I went back to work full duty. I felt fine.” Not a big deal. Then to not bring it up and have the insurance company bring it up, because when they bring it up, they're going to hammer you with it and they're going to try to make you look stupid about it and they're going to make it seem like you're lying to the court and you're lying to the doctors, and it's a horrible thing to do.

Your case gets dragged out for months and months and months. They're going to accuse you of fraud. You've got to stop your whole case, go through a fraud. It's so easy to avoid and you minimize the impact, the negative impact, by just getting out in front of it. It makes you look honest.

It's so helpful. Let your lawyer know. They'll tell you the best way to let everybody know. But very simply, tell all parties involved that you had these old accidents, these old injuries, these old problems so that they don't become a problem later. It's better to take the small hit upfront and to take a huge hit and potentially have your benefits suspended altogether for failure to tell them.

Similarly, when you go for an examination, whether it's your doctor or the insurance company doctor, be truthful in your in your answers to them and give them your full effort. If they think that you're not doing range of motion because, “Hey, Rex said if my arm only goes this high, it shows that I have a permanent problem.” They're going to know, their doctors.

They're not idiots. They're going to know that you're not giving them your best effort. And even if they suspect that you're not giving your best effort, they're going to mention it in the report. So do the best you can. Try to give them hundred percent and it'll come through that you gave a good effort and despite that, whatever your limitations are, will be noted and they'll be noted without an asterisk or a note saying the patient did not give full effort or was malingering.

You don't want that written in your medical reports anywhere because it's going to hurt you. So give your best effort. And lastly, like I said before, and I'm not just tooting my own horn here, get a lawyer. Your lawyers know how to navigate the system. The lawyers know the rules. They know the laws. They know which injuries are worth what, depending on what circumstances you're in.

And you're not going to be able to figure it out on your own. You could. I'm not calling anybody here dumb. It would take a lot of reading and understanding to get to the point where you can understand which way to go. Given your neck back and shoulder injury. It's best to have a lawyer. We've been through this.

We know who we're dealing with. We know the rules, the laws. We know the players. We know the insurance companies. We know the judges. We know how to get through the system and get you the most based upon what you're dealing with. So it's very, very important.

If anybody has any questions, please always feel free to give me a call, I'm Rex Zachofsky and can be reached at 212-406-8989. We're getting calls every day and I'm so happy to help everybody. I want to help you through this complex process, get you what you're entitled to maximize what your rewards can be, get you all the time you need to get your better and let you move on with your life. And that's really what it comes down to.

So again, I appreciate you all. Have a wonderful day. Be safe. Bye bye, everybody.

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