Division of Longshore and Harbor Workers' Compensation (DLHWC)
CHAPTER 5-400 EVALUATION OF IMPAIRMENT
1. Purpose and Scope. This Chapter establishes guidance and procedures governing the medical evaluation of physical impairment. It represents the foundation upon which disability evaluation is based. Physical impairment is a medical concept. Disability is generally an economic concept, or, more specifically, the inability of an employee because of an injury and other factors, to earn the wages which the employee was receiving at the time of the injury in the same or other employment. In evaluating the degree of disability in a given case, the physical impairment is but one factor in the overall evaluation. Non-medical factors, such as age, education, availability of suitable work, and work history, also enter into the disability evaluation. Qualified physicians should be requested to furnish an evaluation of physical or anatomical impairment and the limitations imposed by a given injury.
2. Permanent Impairment.
a. Guidance. CE's should require any physician selected to evaluate permanent medical impairment to utilize the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment, where applicable, and to report the findings in accordance with those guidelines. Any physician who is unwilling or unable to utilize the AMA Guides should not be employed or selected by CE's to evaluate permanent impairment. Nevertheless, their reports not only may but should address as well the impact of any physical factors, such as pain, that cannot be quantified objectively (and hence are not accounted for in the AMA's ratings) on the practical extent of "loss of use" of the member or faculty in question. The District Director (DD) shall be directly responsible for monitoring and ensuring compliance with this policy.
b. Additional Factors.
(1) If the AMA Guides do not evaluate a particular occupational disease impairment, other professionally recognized standards may be utilized (see 20 C.F.R. section 702.601(b)).
(2) Reference to 20 C.F.R. section 410.424 et seq., (Black Lung disability standards) may be useful in evaluating respiratory impairments.
(3) Occasionally injuries occur leaving both objective and subjective residual impairment that cannot be easily measured by the AMA Guides. Some examples are:
(c) Loss of sensation
(d) Marked sensitivity to heat or cold
(e) Loss of strength
(f) Soft tissue damage (scarring, discoloration).
Where such conditions exist, they should be considered along with the measurable permanent impairment under the Guides, in evaluating permanent disability.
(4) Consideration must be given to the claimant's subjective complaints.
3. Basic Elements Required to Evaluate Anatomical Impairment.
a. Guidelines for Physician's Report. Medical examinations are scheduled to obtain information which will enable the CE to evaluate and resolve medical questions regarding the extent of anatomical impairment. Whenever the CE or other party schedules an examination to evaluate anatomical impairment, the CE will request the physician to submit a detailed narrative report containing the following basic information:
(1) An evaluation of impairment in accordance with the AMA Guides, and a percentage rating of the impairment of the injured member, or of impairment of the individual as a whole, as in back or head injuries or retiree occupational disease cases.
(2) A description of any impairment not measured by the AMA Guides (except in retiree claims under section 8(c)(23)).
(3) A description of the physical limitations imposed by the injury with respect to lifting, bending, sitting, walking, standing, stooping, or other activities, and the extent to which such limitations preclude the claimant from performing usual and customary duties. A description of the work limitations would not be necessary in the majority of scheduled injuries, particularly when the claimant has returned to regular full-time work.
(4) Date of maximum medical improvement and/or date employee was able to return to work.
b. Modifications/Deviations in Evaluations. Occasionally, special circumstances will require modification of, or deviation from, the above standards. In the absence of special considerations, the CE should request, and expect, a medical report containing the information in subparagraphs 3a(1) through 3a(4) above.
4. Types of Permanent Disability.
a. Permanent Total Disability (PTD). Disability which is permanent in nature and total in quality is referred to as permanent total disability (section 8(a)).
b. Permanent Partial Disability (PPD). Disability permanent in nature but only partial in quality is referred to as a permanent partial disability. Disabilities of this kind can be subdivided into specific losses (and loss of use of) contained in the section 8(c)(1)-(20) schedule, and the general provisions contained in sections 8(c)(21) and 8(c)(23). Disputes as to the extent of permanent impairment are usually resolved by additional medical evaluations, stipulation of the parties, or by recommendation of the CE following consideration of all of the medical evidence.
(1) PPD Under Section 8(c)(21). Permanent partial disabilities falling under section 8(c)(21) do not generally lend themselves to the simple solution of anatomical impairment. In fact, the Act specifically directs that the amount of compensation payable shall be based on the difference between pre-injury wages and post-injury wage-earning capacity. As a practical matter, the CE must rely on the degree of anatomical impairment as a starting point for the application of non-medical criteria in arriving at a disability determination. However, the examining physician(s) must determine the extent to which the degree of anatomical impairment, based on AMA Guides, places physical limitations on the claimant's ability to perform usual and customary duties or other work. Knowledge of the anatomical impairment, plus a sound medical opinion as to the limitations imposed by this impairment, should enable the CE to better evaluate the extent of disability in a given case. However, if the permanent physical effect of the injury is limited to impairment of a member covered by section 8(c)(1)-(20), compensation may not be paid under the provisions of section 8(c)(21); if the scheduled injury does not foreclose the worker from all employment reasonably available to him or her, a schedule award is the only form of periodic compensation available after permanency begins. (See Potomac Electric Power Company v. Director, OWCP[PEPCO], 449 U.S. 268, 14 BRBS 363 (1980).)
(2) PPD Under Section 8(c)(23). Awards for permanent partial disability under this section of the Act are made for retired workers afflicted with delayed occupational diseases which did not affect their pre-retirement earnings. The percent of impairment, as calculated according to the AMA Guides, and expressed in terms of the whole person, is the basis for the award. Compensation shall be 66 2/3 percent of the claimant's "deemed" AWW times the percent impairment. (See 20 C.F.R. section 702.604.)
c. Permanent Disability Involving Multiple Injuries. Cases involving severe injuries to a single extremity or multiple injuries to more than one extremity may sometimes be more difficult to evaluate in terms of permanent impairment. Whether such injuries should be treated as schedule losses or general economic disability depends not only on the physician's evaluation of impairment expressed as a percentage, but also on whether the injury involves other than schedule members and whether the claimant is able to perform the duties of his/her employment or other work. For example, the medical evidence must be evaluated by the CE in light of these factors as well as such non-medical factors as age, education, work history, etc., in arriving at a decision as to the nature of the disability. However, if the injury is limited to a member covered by the schedule contained in section 8(c)(1)-(20), and the claimant is only partially disabled, recovery is limited to the number of weeks provided for in the schedule, as noted in 4b(1), above.
In Frye v. Potomac Electric Power Co, 21 BRBS 194 (1988) the Board noted that, subsequent to PEPCO, it had held that a Claimant, who sustained two injuries, was entitled to a schedule award and a section 8(c)(21) award but that any LWEC due to the impaired schedule member must be factored out of the section 8(c)(21) award. (See Turney v. Bethlehem Steel Corp., 17 BRBS 232 (1985). The Board concluded that there is no reason to limit the holding in Turney to those cases where two or more work accidents occur. Accordingly, we hold that where the Claimant suffers two distinct injuries, a scheduled injury and a non-scheduled injury arising either from a single accident or multiple accidents, he may be entitled to received compensation under both the schedule and section 8(c)(21). Since the scheduled injury is being compensated separately, any loss in wage-earning capacity due to the scheduled injury must be factored out of the section 8(c)(21) award.Frye at 198.
The Board has never given any concrete guidance on how the factoring out should be done. Please contact the NO for guidance on specific cases.
5. Physician's Use of AMA Guides.
a. Application. Generally, the physicians who treat job-related injuries arising under the LHWCA are familiar with the features of section 8(c). It is imperative, however, that the CE requesting a final evaluation of permanent impairment, makes certain that the evaluating physician's report expresses the percentage of impairment in accordance with the AMA Guides.
b. Degree of Permanent Impairment. It is generally easier for a physician to evaluate the degree of permanent impairment in injuries involving the extremities. Limitation in flexion, extension, etc., can be measured with reasonable accuracy in accordance with the Guides. However, in evaluating permanent impairment in back injuries, other factors may influence the physician's final evaluation.
6. Evaluation When No Conflict Exists in Medical Evidence.
a. Request for Medical Evaluation. As soon as practicable following the date the CE learns that a claimant has reached maximum medical improvement, or is no longer temporarily totally disabled, and suspects some permanent partial disability is present, the CE will request a medical evaluation of permanent impairment. The report of this evaluation should contain the information outlined in paragraph 10, below.
b. Channels of Request. The CE may either write directly to the physician and ask for the evaluation and report, or direct the EC to make the arrangements. In cases where section 8(f) relief is at issue, the referral must be made by the DO. The physician should be asked to submit a report as soon as possible after the claimant is examined.
c. Use of Report. When the medical report is received, the CE should review it carefully (along with the other factors considered in determining disability), decide the extent of disability, and make a recommendation for the consideration of the parties.
7. Evaluation When There is Conflicting Medical Evidence and/or Disagreement. Whenever the CE determines that a medical evaluation is needed to resolve disputes as to the degree of permanent impairment, the CE should immediately arrange for an evaluation. Selection of a physician and scheduling of the evaluation can be handled by phone, letter, or at a conference by any of the parties in interest. Where section 8(f) relief is an issue, all arrangements must be made by the DO.
8. Selection of Physician to Conduct Evaluation. The selection of a physician to conduct the evaluation of impairment can be made in several ways. While any of these methods may be used, it is generally preferable to have the parties participate in the selection of the physician. Please refer to PM 5-200.10 for further guidance on the selection of impartial specialist.
a. Selection by CE. The CE can select a physician for an impartial evaluation pursuant to section 7(e) or section 14(h) of the Act.
b. Selection by Parties. The CE can provide the names of three or more Board-certified specialists in the needed specialty and have the parties select a physician from those named.
c. Mutual Agreement of Parties. The parties can mutually agree on a physician of the appropriate specialty. This method for choosing a physician should not be used in cases where section 8(f) relief is an issue.
9. Selection of Physician by Claims Examiner.
a. Rotation System. Whenever the CE presents names of physicians for selection by the parties, or selects a physician without the participation of the parties, a rotation system of selection will be followed.
b. Suitability of Physician. There will be physicians who are unable or unwilling to conduct evaluations. Other physicians may have become known as being unduly biased in favor of either claimants or employers. Such physicians should be omitted from the rotation system.
c. Section 7(i) Restriction. If the restrictions of section 7(i) and a party’s unwillingness to waive them make the use of that provision impractical, the CE then proceeds with the evaluation under the authority of section 14(h), which is an alternative to section 7(e) for evaluating permanent impairment.
d. Examination Under Section 14(h). Examinations under section 14(h) shall generally be arranged to preclude pre-judgment by the impartial specialist. No physician previously connected with the case should be present, nor may any other physician selected by either party be present.
e. Impartiality of Examinations. The examining physician should not routinely be apprised of the opinions, reports, or conclusions of any prior examining physician with regard to the nature and extent of the employee's impairment and its cause or effect on the employee's wage-earning capacity. (See 20 C.F.R. section 702.411(a) and (b) and PM 5-200.10.)
10. Referral Arrangements.
a. Requirements for Physician's Report. Once the impartial specialist has been selected, either under section 7(e) or section 14(h), the CE will contact the physician's office, preferably by telephone, to determine if the physician is willing to conduct such an evaluation. If so, the arrangements will be formalized by use of a narrative letter which sets forth the essential background data and requests that the report include all or as much of the following information as may be appropriate:
(1) Date of examination.
(2) History given by employee.
(3) Detailed description of findings.
(4) Results of any x-ray or laboratory tests.
(6) An estimate of the percentage of impairment remaining due to the injury in accordance with the AMA Guides, where applicable.
(7) Date of maximum improvement, if reached.
(9) Advice as to the work limitations imposed by reason of injury-related impairment with respect to lifting, bending, stooping, walking, reaching, standing, etc.
(10) Recommendations for further medical treatment, if indicated.
(11) An indication whether the physician would be available to testify at a formal hearing, either in person or by deposition.
b. Arrangements by Party in Interest. If there is mutual agreement by the parties as to the examining physician, one of the parties may arrange the examination, contact the physician's office, make the referral, and request that the medical report contain information which is outlined in subparagraph 10a. As previously noted, this method should not be utilized in cases where section 8(f) relief is an issue.
c. Referrals in Section 8(f) Cases. Where an impartial evaluation is to be used to clarify medical issues in a case where section 8(f) is an issue, the examination should be arranged by the DD. This is not to be done by the private parties. The claimant should be examined by the impartial medical specialist. The DD should frame the questions to be answered by the specialist and the report of the specialist should be sent first to the DD. This procedure should be followed so that the specialist's evaluation will be impartial and not simply reflect the views of the private parties.
11. Receipt of Medical Report of Evaluation. On receipt of the medical report, the CE should make a copy of the report available to the parties, if they have not already been furnished one. The CE will then review the report carefully and, along with other factors necessary in evaluating disability, determine the extent of disability, and make a recommendation for the consideration of the parties.
12. Evaluation Disputed.
a. Request for Reexamination. A party who is dissatisfied with the findings of the evaluating physician may request a review or reexamination of the claimant. The CE should grant the request unless considered unwarranted. When the request is granted, the physician should be chosen using the same procedure as when the initial selection was made.
b. Conduct of Reexamination. The reexamination shall be completed within two weeks from the date ordered, unless it is impossible to complete the reexamination and render a report within such time period.
13. Determination of Disability. Following receipt of medical reports of reexaminations or reviews, the CE should not usually authorize any further evaluations, reexaminations, or reviews, but will carefully evaluate all the medical evidence and non-medical factors necessary in evaluating disability, determine the extent of disability, and make a recommendation for the consideration of the parties.