Chapter 2-1300 Impairment Ratings
Table of Contents. . . . . . . i 09/13 13-06
1 Purpose and Scope. . . . . . . 1 09/13 13-06
2 Policy . . . . . . . . . . . . 1 09/13 13-06
3 Definition of Impairment . . . 1 09/13 13-06
4 General Requirements for
Impairment Ratings . . . . . 1 09/13 13-06
5 Developing an Impairment
Claim . . . . . . . . . . . 5 09/13 13-06
6 Impairment Ratings for
Certain Conditions . . . . . 12 09/13 13-06
7 Receipt of the Impairment
Evaluation . . . . . . . . . 15 09/13 13-06
8 Pre-Recommended Decision
Challenges . . . . . . . . . 16 09/13 13-06
9 Impairment and Tort Offset/
State Workers’ Coordination. . 16 09/13 13-06
10 Issuance of a Recommended
Decision . . . . . . . . . . 19 09/13 13-06
11 FAB Development. . . . . . . . 20 09/13 13-06
12 Additional Filings for
Impairment Benefits. . . . . 21 09/13 13-06
13 Issues Involving Survivor
Election . . . . . . . . . . 23 09/13 13-06
1 Not at MMI Letter. . . . . . . 09/13 13-06
2 Development Form for
Impairment (Form EE-11A/EN-11A) 09/13 13-06
3 Not Claiming Impairment
Letter . . . . . . . . . . . 09/13 13-06
4 Impairment Eligibility
Letter to Physician
with Attachments . . . . . . 09/13 13-06
5 Impairment Rating
Requirements . . . . . . . . 09/13 13-06
6 Required Medical Evidence
Specific to ICD-9 Codes. . . 09/13 13-06
7 Breast Impairment Letter . . . 09/13 13-06
1. Purpose and Scope. This chapter provides guidance on the procedures for evaluating a claim for permanent impairment. It explains the responsibilities of the Claims Examiner (CE) in awarding a covered Part E employee impairment attributable to a covered illness. In addition, the chapter provides information about how the District Office (DO) and the Final Adjudication Branch (FAB) evaluate medical evidence relating to impairment and the evidence necessary to establish a ratable permanent impairment. The chapter concludes with a discussion of the assessment of claims for additional impairment benefits following the previous award of impairment benefits.
2. Policy. The CE is responsible for processing impairment rating determinations and ensuring benefits are appropriately paid under the provisions of 42 U.S.C. 7385s, 7385s-2, 7385s-4, and 7385s-5, and as outlined in the procedures in this chapter.
3. Definition of Impairment.
a. Impairment. The American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA’s Guides), 5th Edition, defines impairment as “a loss, loss of use or derangement of any body part, organ system or organ function.” Furthermore, “Impairment percentages or ratings developed by medical specialists are consensus-derived estimates that reflect the severity of the medical condition and the degree to which the impairment decreases an individual’s ability to perform common Activities of Daily Living (ADL), excluding work.” (Emphasis in original)
4. General Requirements for Impairment Ratings.
a. Covered Employees. The employee must be a covered Department of Energy (DOE) contractor or subcontractor employee, or Radiation Exposure Compensation Act (RECA) section 5 employee found to have contracted a covered illness through exposure to a toxic substance at a DOE facility or RECA section 5 facility.
b. Claiming Impairment. The employee must claim impairment because of a covered illness or illnesses in writing.
c. Maximum Medical Improvement (MMI). An impairment that is the result of a covered illness will be included in the employee’s impairment rating only if the physician concludes that the condition has reached MMI, which means the condition is unlikely to improve substantially with or without medical treatment. Conditions that are progressive in nature and worsen over time, such as chronic beryllium disease (CBD), are considered to have reached MMI when the condition is not likely to improve.
(1) Terminal Employees. An exception to the MMI requirement exists for terminal employees undergoing ongoing treatment for an illness that has not reached MMI. In these situations, the terminal employee could die before the outcome of treatment is known and eligibility for an impairment award would be extinguished. Therefore, if the CE finds probative medical evidence that the employee is terminal, the impairment that results from such a covered illness is included in the impairment rating even if the employee has not reached MMI.
(2) MMI Has Not Been Reached. After reviewing the medical evidence, if the CE determines that the condition has not reached MMI, and the employee is not in the terminal stage, the CE does not make an impairment determination. The CE sends a letter to the employee informing him or her that the claim is administratively closed and that an impairment determination will not be made because MMI has not been reached. The letter should also include a statement that the employee is to contact the DO once medical evidence is obtained indicating MMI (See Exhibit 1).
(a) A treating physician may state that an employee is not at MMI and recommend treatment that could improve the condition. If the employee chooses to forgo the recommended treatment, the CE sends a letter to the employee informing him or her that the claim is administratively closed until the employee is at MMI.
(b) Once the CE receives medical evidence indicating that the employee is at MMI, development is resumed.
(3) Multiple Covered Illnesses. In a case of multiple covered illnesses, where one condition is at MMI and another is not, the CE should proceed with a determination regarding impairment for the condition at MMI. If different covered illnesses affect the same organ, and one condition is not at MMI, the CE cannot proceed with an impairment rating until all conditions in that organ have reached MMI.
d. Impairment Rating. An impairment evaluation performed by a qualified physician is the basis for the CE’s determination of impairment benefit entitlement. Therefore, the physician’s impairment rating report is to include narrative text that clearly communicates the physician’s opinion, and that provides a convincingly descriptive rationale in support of the stated impairment rating.
(1) Evaluation. An impairment evaluation of the employee is to be based upon the 5th Edition of the AMA’s Guides.
(2) Rating Physician Qualification. An impairment evaluation is to be performed by a qualified physician who satisfies the Division of Energy Employees Occupational Illness Compensation’s (DEEOIC) criteria for physicians performing impairment evaluations. In order for a CE to deem a physician qualified, the physician must hold a valid medical license and Board certification/eligibility in his/her field of expertise (e.g., toxicology, pulmonary, neurology, occupational medicine, etc.). The physician is to also meet at least one of the following criteria: certified by the American Board of Independent Medical Examiners (ABIME); certified by the American Academy of Disability Evaluating Physicians (AADEP); possess knowledge and experience in using the AMA’s Guides; or possess the requisite professional background and work experience to conduct such ratings.
(a) In order for a physician to demonstrate that he/she is qualified, there is no need to submit copies of his/her medical license or certificates. Qualifications may be determined by the submission of a letter or a resume demonstrating that the physician is licensed and meets the requisite program requirements.
(b) If a physician does not possess ABIME or AADEP certification, the physician is to submit a statement certifying and explaining his/her familiarity and years of experience in using the AMA’s Guides.
(3) Rating Percentage. The impairment rating is a percentage that represents the extent of a whole person impairment of the employee, based on the organ(s) or system(s) affected by a covered illness or illnesses. A qualifying impairment rating is to account for all Part E accepted covered illnesses and is to include all conditions present in the covered organ(s) or system(s) at the time of the impairment evaluation.
(4) Whole Person Impairment. The physician is to specify the percentage points of whole person impairment resulting from all accepted covered illnesses.
(a) In some instances, there are diseases or life style choices (e.g., smoking), in addition to the covered illness, that affect organ functionality. The DEEOIC does not apportion damage, thus the impairment rating should assess the functionality of the whole organ regardless of other non-occupational factors that influence permanent partial impairment.
(b) If the employee contracted more than one covered illness, the physician should specify the total percentage points of impairment that results from each of the employee’s accepted covered illnesses. The total percentage points of impairment are determined by a combined value chart in the AMA’s Guides. Therefore, the sum of each individual impairment rating may not equal the total combined rating.
(c) An impairment that is the result of any accepted covered illness that cannot be assigned a numerical impairment percentage using the 5th Edition of the AMA’s Guides will not be included in the employee’s impairment rating, and the physician performing the impairment evaluation is to explain why a numerical impairment percentage cannot be assigned.
5. Developing an Impairment Claim. This section discusses the developmental steps and evidence necessary to adjudicate an impairment claim. It is important that the person undertaking development action with regard to a claim for impairment ensures that documents generated or received during the evaluation process are properly maintained either in a physical case file or, when appropriate, bronzed into the OWCP imaging System (OIS). When developing an impairment claim for a case record with an imaged component, it is essential that the assigned CE take the appropriate steps to bronze all outgoing documents (including second requests) and to scan any records received. This guidance applies to any of the procedures described throughout this chapter.
a. Initial Phone Call: After a final decision is issued to an employee with a positive causation determination (See section 12 for developing an impairment claim when two years have elapsed since the last impairment award), the CE contacts the employee to provide information about the potential impairment benefits available, explains eligibility requirements or program procedures, and responds to any questions. The CE advises the employee that an impairment letter and response form (Form EE-
11A/EN-11A. See Exhibit 2) will be sent. The CE then memorializes the phone call in ECS.
b. Impairment Letter and Response Form (Form EE-11A/EN-11A)). Form EE-11A/EN-11A is to be sent to all employees with a new final decision accepting his/her claimed condition as a covered illness under Part E. The CE only sends this form for employee claims. (See section 13 for survivor claims)
(1) Timeframe. The CE sends Form EE-11A/EN-11A after the initial phone call to the employee regarding impairment benefits. If the CE is unable to contact the employee by phone, the CE sends Form EE-11A/EN-11A without the initial phone conversation with the employee.
(2) Explanation. Form EE-11A contains information explaining what an impairment rating is and that the employee may be eligible for an award based on permanent impairment.
(3) Request for Impairment Claim. Form EE-11A provides information that the employee is to advise the DEEOIC in writing as to whether or not he/she wishes to claim impairment for a covered illness or illnesses. If the employee has more than one covered illness, the employee is required to list the specific covered illness(es) he/she is claiming. An employee may not elect to file an impairment claim on some, but not all, covered illnesses in an effort to avoid a tort offset or coordination of state workers’ compensation benefits. Form EN-11A is a response form on which the employee may claim impairment and identify the specific covered illness(es) he/she is claiming.
(4) Physician Choice. Form EE-11A explains that the employee may choose to have his/her own qualified physician or a Contract Medical Consultant (CMC) to perform an impairment evaluation. CMCs are DEEOIC contracted physicians and must be qualified to perform impairment evaluations. The employee indicates this choice on Form EN-11A. If the employee requests his/her own physician, the employee must provide the physician’s name, address and phone number. Form EN-11A contains a space for this information.
(5) Timeframe. The CE is to allot 60 days for the employee to respond to Form EE-11A/EN-11A, with a follow up request sent to the employee at the first 30-day interval. The CE uses Form EE-11A/EN-11A for the follow up request, but the form must be marked “Second Request.” The CE does not develop the impairment issue until he or she receives a completed form
(a) If the employee does not respond to Form EE-11A/EN-11A within 60 days, the CE sends a final Form EE-11A/EN-11A marked as a “Final Request” to the employee. After the CE sends the final request Form EE-11A/EN-11A, the CE updates ECS to indicate that the employee is not claiming impairment.
If at any time the employee informs the CE that he/she does not want to pursue a claim for impairment, the CE sends a letter to the employee advising that the DEEOIC will not undertake further development of the claim for impairment at this time. The CE also notifies the employee of the right to claim impairment in the future (See Exhibit 3).
(b) If the employee responds by Form EN-11A that he/she wants to claim impairment, the CE updates ECS appropriately. The impairment claim date is the postmark date of the form, if available, or the date the CE or Resource Center receives the form, whichever is the earliest determinable date.
c. Impairment Ratings by the Employee’s Own Physician.
(1) Letter to Selected Physician. The CE sends a letter (Exhibit 4 with attachments) to the physician selected by the employee. In the letter, the CE notifies the physician of the employee’s eligibility, and the covered illness or illnesses with respective ICD-9 code(s). The CE explains that in order for the DEEOIC to pay for an impairment evaluation, the evaluation is to be performed within one year of the report’s receipt by the DEEOIC. The letter is also to contain an explanation that the impairment evaluation is to be performed in accordance with the 5th Edition of the AMA’s Guides, and that the rating physician is to reference the appropriate page numbers and tables applied from the AMA’s Guides. Lastly, the CE includes a medical bill pay agent enrollment package, which is to include: an OWCP-1500, Health Insurance Claim Form (Exhibit 4 attachments), OWCP-1168, the EEOICP Provider Enrollment Form (Exhibit 4 attachments), and a SF Form 3381 (Exhibit 4 attachments) to allow the medical bill pay agent to process electronic fund transfers to the provider. The OWCP-1168 contains a written explanation of how a physician enrolls with the medical bill pay agent. If a physician has previously enrolled with the DEEOIC, there is no need to enroll again. If the employee opted to select his/her own physician to perform the impairment rating but does not know of one, the CE may direct the employee to the appropriate Resource Center (RC) for a list of physicians who perform impairment ratings and who are enrolled in the program.
(2) Scheduling an Appointment with the Selected Physician. Upon receipt of the employee’s written choice of physician, the CE sends a letter explaining that the employee is to schedule the impairment appointment within 30 days and the appointment is to occur within six months. The CE also explains that any appointment scheduled to occur later than six months may lead to denial of the impairment claim. If after 30 days, the CE finds no evidence of an impairment evaluation or that the employee scheduled an appointment, the CE makes a phone call to determine the status of the appointment (whether it has been made or is in the process of being made, etc.). The CE advises the employee verbally of the need to schedule the appointment within the next 30 days and to provide written evidence of such to the CE. The CE also explains that if the appointment is not scheduled or is scheduled to occur later than the six months period, a recommended decision to deny the impairment claim may be issued. It is important that the CE record this discussion carefully in the phone calls section of ECS. After this phone call, the CE sends a written summary of the call to the employee.
If at the end of this total 60-day period no evidence exists to show progress in obtaining the necessary impairment evidence and the employee has not provided a valid reason for the delay (e.g. he/she was sick), the CE may issue a recommended decision to deny the impairment claim.
d. Impairment Ratings by a CMC. If the employee does not indicate on the EN-11A form who should perform the impairment evaluation, the CE calls the employee for this information. If the employee chooses the CMC option, the CE reviews the medical evidence in the case file to determine if the evidence is sufficient for a CMC to perform the impairment evaluation.
(1) Required Medical Evidence. Since the employee will not be physically evaluated for impairment by a CMC, the employee’s Activities of Daily Living (ADL) or equivalent information is required. The employee’s physician is to complete the ADL worksheet (Exhibit 5) or equivalent information, preferably within the last 12 months before the impairment evaluation. In addition to the ADL or its equivalent, some conditions require specific medical evidence before impairment evaluation can be completed, as outlined in Exhibit 6. If a condition is not listed in Exhibit 6, the CE should consult with a CMC to determine what medical information is required as outlined in the AMA’s Guides.
The CE sends a letter to the employee attaching a blank ADL (Exhibit 5) and including the information regarding the required medical evidence (Exhibit 6) for certain conditions. If the CE determines that additional evidence and/or diagnostic test(s) is required to conduct an impairment evaluation, the CE is to explain the requirement in this letter. The CE sends this letter after receipt of the notice that the employee has chosen the CMC option. The letter explains that the employee is to return the required evidence within 30 days. If after 30 days, the required evidence is not submitted, the CE makes a phone call to determine the status of the evidence. The CE advises the employee verbally of the need to obtain this evidence. The CE explains that if the required evidence is not submitted within 30 days, a recommended decision to deny the impairment claim may be issued. It is important that the CE record this discussion carefully in the phone calls section of ECS. After this phone call, the CE sends a written summary of the call to the employee.
If at the end of this total 60-day period no evidence exists to show progress in obtaining the necessary impairment evidence and the employee has not provided a valid reason for the delay (e.g. he/she was sick), the CE may issue a recommended decision to deny the impairment claim.
(2) Insufficient Evidence. If the CE determines that the submitted medical evidence is not sufficient, the CE sends a follow-up development letter to the employee explaining the deficiency and the additional evidence and/or diagnostic test(s) required to conduct an impairment evaluation.
(3) Unavailability of Records. If the employee is unable to provide the necessary medical records, the rating physician must determine if an impairment evaluation is possible in accordance with AMA’s Guides given whatever evidence is available. The CE may proceed with a CMC referral to determine if the available records are sufficient to perform a rating. If the CMC is able to perform a rating based on the available medical evidence but states that additional testing could potentially increase the rating, the employee must be notified that the rating is based solely on the present evidence of record, and that additional testing is needed to allow for the highest potential rating. The CE sends the employee a letter and gives the employee the option of obtaining the necessary testing, or of notifying the CE in writing that a decision may proceed based on the available medical evidence. If the employee does not respond, the CE proceeds with the impairment evaluation based on the available medical evidence.
(4) Outdated Evidence. It is in the interest of the employee to ensure that the most contemporaneous medical records are available for the CMC to review for an impairment. If the CE has provided the employee the opportunity to obtain current medical evidence but the claimant has not responded adequately, the CE may use medical evidence in the file that is older than 12 months to obtain an impairment rating from a CMC. In some instances, the CMC may not be able to render an opinion with older or missing medical records.
6. Impairment Ratings for Certain Conditions:
a. Mental Disorders.
(1) Upon receipt of a claim for a mental impairment, the CE must determine whether the claimed impairment originates from a documented physical dysfunction of the nervous system.
(2) Once it has been established that an employee’s mental impairment is related to a documented physical dysfunction of the nervous system, the employee is to obtain an impairment evaluation from the physician based on Table 13-8 of Chapter 13 in the 5th Edition of the AMA’s Guides.
(3) If the mental impairment is not related to a documented physical dysfunction of the nervous system, it cannot be assigned a numerical percentage using the 5th Edition of the AMA’s Guides. The CE communicates this to the employee and provides the employee 30 days to submit documentation from a physician to establish a link between the exposure to a toxic substance at a covered facility and the development of a mental impairment. The report from the employee’s physician is to contain rationalized medical analysis establishing that the mental impairment is related to neurological damage due to a named toxic exposure.
Speculation or unequivocal statements from the physician reduce the probative value of a physician’s report, and, in such situations, the CE may find it necessary to refer the case to an occupational CMC or a DEEOIC toxicologist to determine whether toxic exposure caused physical dysfunction of the nervous system.
(b) Breast Cancer.
(1) Upon receipt of a claim for impairment for the breast in either a male or female, the CE submits a request to the physician undertaking the evaluation, explaining all the criteria that are to be considered and referenced in the final report (See Exhibit 7).
For the purposes of considering impairment due to breast cancer in a female, child-bearing age will not be a determining factor when issuing an impairment rating, as the AMA’s Guides do not define “child- bearing age.”
(2) When the physician returns a completed impairment evaluation, the CE is to review it to ensure that the physician has comprehensively addressed each of the factors necessary for an acceptable rating. The impairment evaluation is to contain written information to show that the physician has considered: (1) the presence or absence of the breast(s); (2) the loss of function of the upper extremity (or extremities if there is absence of both breasts due to cancer), including range of motion, neurological abnormalities and pain, lymphedema, etc.; (3) skin disfigurement; and (4) other physical impairments resulting from the breast cancer. The total percentage of permanent impairment of the whole person is to be supported by medical rationale and references to the appropriate sections and tables (with page numbers) of the AMA’s Guides.
(3) If the CE determines that the physician has not provided a complete rating for a claimed impairment of the breast, the CE sends a follow-up letter to the physician. The letter is to include the CE explanation of the noted deficiency in the assessment, and that the purpose for obtaining a complete response is to ensure that the employee receives the maximum allowable rating provided by the AMA’s Guides.
(c) Pleural Plaques/Beryllium Sensivity.
(1) In the initial phone call to employees with covered conditions of pleural plaques or beryllium sensitivity alone, the CE explains that impairment for these conditions is generally 0%. If the employee intends to pursue an impairment claim based upon pleural plaques or beryllium sensitivity, the CE follows the procedure as established in section 5.
(d) Metastatic Bone Cancer.
(1) In situations where the CE accepts a case under the Special Exposure Cohort (SEC) provision based on metastatic (secondary) cancer, i.e. metastatic bone or metastatic renal cancer, often the primary source of the metastatic cancer will prove to be the prostate. If the CE does not accept the prostate cancer due to a lack of a causative link and because prostate cancer is not an SEC-specified cancer, it is important that the CE ensure that the non-covered prostate cancer is not considered in the impairment rating. Only the accepted condition of SEC metastatic cancer is considered for the impairment rating.
7. Receipt of the Impairment Evaluation. Upon completion of the impairment evaluation and receipt in the DO, the CE reviews the report to assure that all DEEOIC criteria for a valid impairment are met. The CE reviews the impairment evaluation to determine the following: whether the opining physician possesses the requisite skills and requirements to provide a rating as set out in paragraph 4d(2); whether the evaluation was conducted within one year of receipt by the DEEOIC; whether the report addresses the covered illness or illnesses; and whether the whole person percentage of impairment is explained with a clearly rationalized medical opinion as to its relationship to the covered illness or illnesses.
a. Awards. To calculate the award, the CE multiplies the percentage points of the impairment rating of the employee’s covered illness or illnesses by $2,500. For example, if a physician assigns an impairment rating of 40% or 40 points, the CE multiplies 40 by $2,500, to equal a $100,000 impairment award.
b. Incomplete Ratings. If the impairment rating report is unclear or lacks clearly rationalized medical analysis in support of the offered conclusion, additional clarification is required. In such instances, the CE returns the impairment rating evaluation to the rating physician with a request for clarification, indicating what areas are in need of remedy. If the employee’s physician submitted the insufficient report and no response is received, or is returned without sufficient clarification, the CE notifies the physician and the employee of the need for additional justification. If response is not forthcoming, the case is sent to a CMC for a new rating. If the CMC submits an incomplete report, the CE is to notify the CMC of the deficiency and request a more comprehensive report.
8. Pre-Recommended Decision Challenges. Upon request, the CE may provide the employee with a copy of the impairment rating report. The employee may submit written challenges to the impairment rating report and/or additional medical evidence of impairment. However, any additional impairment evaluations are to meet the criteria discussed above in section 7 before the CE can consider it when making impairment determinations. The DEEOIC will only pay for one impairment evaluation unless the DEEOIC directs the employee to undergo additional evaluations. The employee is responsible for the payment of any subsequent evaluations not directed by the DEEOIC. If the additional evaluation differs from the existing rating, the CE must review the two reports in detail to determine which report has more probative value. In weighing the medical evidence, the CE must use his or her judgment in the analysis of the reports. If the reports appear to be of equal value and the impairment ratings are within 10% of each other, the CE accepts the higher rating impairment.
a. Determining Probative Value. If the impairment reports appear to be of equal value and the ratings are not within 10% of each other, the CE may obtain an evaluation from a referee physician.
9. Impairment and Tort Offset/State Workers’ Compensation (SWC)Coordination. If there are impairment benefits due to multiple illnesses, and at least one of those illnesses is subject to a tort offset or coordination of SWC award, the CE is to determine the impairment award by following these steps:
a. Determine that coordination and/or offset is required.
(1) SWC Coordination – In an impairment case based upon multiple covered illnesses, the CE is to confirm that at least one covered illness is based on the same illness as the SWC payment.
(2) Tort Offset – In an impairment case based upon multiple covered illnesses, the CE is to confirm that at least one covered illness is based on the same work-related exposure as the tort payment.
b. Identify the combined impairment rating and calculate the dollar amount. For example, John Doe has a 20% impairment due to his asbestosis and 7% impairment due to his skin cancer. The combined impairment rating according to the Combined Values Chart is 26%, and the potential impairment award is $65,000.00 (26% X $2,500.00 = $65,000.00).
c. Determine the percentage of the combined impairment rating that each separate impairment represents using these steps:
(1) Determine the sum of the individual impairment rating. In the John Doe example case, the individual ratings are 20% due to his asbestosis (lung) and 7% are due to his skin cancer, so the sum of his individual impairment rating is 27% (20% + 7% = 27%)
(2) Calculate the relative percentage of impairment for each organ or body function:
For asbestosis- Divide 20% by 27% to determine that 74.07% of the sum of the individual rating is attributable to asbestosis.
For skin cancer – Divide 7% by 27% to determine that 25.93% of the sum of the individual impairment rating is attributable to skin cancer.
d. Calculate the dollar amount attributable for each organ or body function. In the John Doe example case, the calculation is as follows:
For asbestosis – Multiply 74.07% (the percentage attributable to asbestosis) by the dollar amount of the combined impairment award of $65,000.00 to determine that $48,145.50 is the dollar amount attributable to asbestosis.
For skin cancer – Multiply 25.93% (the percentage of impairment rating attributable to skin cancer) by $65,000.00 to determine that $16,854.50 is the dollar amount attributable to skin cancer.
e. Subtract Offset/Coordination amount from the dollar amount attributable to the organ or body function subject to offset and/or coordination.
Example 1: If the dollar amount attributable to John Doe’s lung impairment has to be reduced by $10,000.00 due to coordination (the eligible amount paid from a state workers’ compensation claim), $10,000.00 must be subtracted from $48,145.50 (the dollar amount attributable to asbestosis), which leaves $38,145.50 payable due to asbestosis after coordination of SWC benefits.
Example 2: If the dollar amount attributable to John Doe’s lung impairment has to be reduced by $50,000.00 due to coordination, $50,000.00 must be subtracted from $48,145.50 (the dollar amount attributable to asbestosis), which leaves $1,854.50 as a surplus after coordination of SWC benefits. His surplus due to asbestosis will not affect his entitlement to benefits for skin cancer.
f. Calculate the Payable Impairment Award. Add the dollar amounts for each organ or body function (after coordination and/or offset) to determine the amount of the impairment award.
Example 1: Add $38,145.50 for asbestosis (after subtracting the coordination amount of $10,000.00) to $16,854.50 for skin cancer for a total impairment award of $55,000.00.
Example 2: If the coordination amount to asbestosis is $50,000.00, the amount of the total impairment award is $16,854.50 from the skin portion of the combined impairment award if skin cancer is not subject to offset or coordination. The surplus of $1,854.50 after coordination of SWC benefits for asbestosis is NOT subtracted from the skin cancer award. This surplus is absorbed from medical benefits for asbestosis and future compensation benefits for asbestosis.
10. Issuance of a Recommended Decision. Once the CE has completed appropriate development, he/she is to proceed with the issuance of a recommended decision concerning the claim for impairment. The recommended decision is to contain a discussion of the relevant impairment evidence submitted in deciding the claim. Moreover, the CE is to explain the sufficiency (or insufficiency) of the evidence justifying the decision outcome. For example, the CE is to include a finding regarding the qualification of the physician providing medical evidence for an impairment rating. In addition, the CE is to describe the sufficiency of the medical evidence in satisfying the necessary procedural requirements for a valid impairment including MMI, use of AMA’s Guides, calculation of rating, citation of AMA tables, etc. For any award of lump-sum impairment, the CE is to clearly explain the calculation of the award.
If a decision recommends denial of an impairment claim based upon an insufficient evaluation, or if one evaluation is relied upon by the DO over another evaluation(s) in the file, the CE is to provide a detailed discussion regarding the probative value of the evaluation(s). The CE is to discuss the weight of medical evidence as to why one report is insufficient, and/or why one report offers more probative value. This is necessary in the event that the employee submits additional impairment evidence to the FAB, as any additional impairment evidence submitted must overcome the weight of medical evidence as assigned by the CE.
11. FAB Development. Once a recommended decision on impairment is issued and forwarded to the FAB, the employee may submit new medical evidence and/or additional impairment evaluations to challenge the impairment determination discussed in the recommended decision.
a. Reviewing Ratings. The employee bears the burden of providing additional impairment evidence that shows an error of procedural application or that provides a probative medical argument to overcome the CE’s assignment of weight of medical evidence as discussed in the recommended decision. However, if the evidence is not from a qualified physician who meets the requirements of paragraph 4d(2) of this chapter, the FAB Hearing Representative (HR) will not consider it probative.
b. FAB Review. The HR must take into consideration the list of factors in section 7 when weighing impairment evaluations for probative value. In addition to the impairment rating(s), the FAB reviews all the relevant evidence of impairment in the case record and bases its determination on the evidence it finds to be most probative. If the employee’s file contains multiple impairment evaluations, the HR reviews each report to determine which provides the most probative value given the totality of the evidence.
c. Final Decision. The final decision is to contain sufficient narrative to clearly describe whether the reviewer feels that the recommended findings comply with the procedural requirements of the DEEOIC for an impairment award and that the findings are reasonably derived from the medical evidence of record.
12. Additional Filings for Impairment Benefits. An employee previously awarded impairment benefits may file a claim for increased impairment benefits for the same covered illness included in the previous award. For such a claim, the claimant is to file using Form EN-10. Upon completion of development, the CE may award lump-sum compensation for the percentage increase. In the rare instance where a claim for increased impairment is developed but the medical evidence establishes a lower whole person impairment than previously determined, the CE is to deny the claim for increased impairment. The CE takes no action to reopen the prior impairment determination because a claim filed for increased impairment after the two-year wait period is considered a new claim.
a. Timeframe. The employee may not submit a Form EN-10 for an increased impairment rating earlier than two years from the date of the last award of impairment benefits (date of the final decision).
(1) New Covered Illness. An exception to the two- year time period requirement exists if the CE
adjudicates an additional impairment claim based upon a new covered illness not included in the previous award. A new covered illness involves a different disease, illness, or injury that was not the basis of the original impairment rating. This includes the acceptance of consequential illness.
b. Untimely Requests for Re-evaluation. If the two-year date is near, the impairment claim can be developed, but not adjudicated, until the two-year mark has been reached. In circumstances in which an employee submits a request for re-evaluation and it is too early to proceed with adjudication(i.e. three months prior to the two year mark),the CE should inform the employee in writing that he/she is not eligible for an impairment decision and that a decision will be deferred until such time as the employee is eligible. The CE enters a call up note in ECS to follow up at the two-year mark, but no action is taken to administratively close out the impairment claim. If the employee submits an untimely request for re-evaluation that is more than three months prior to the two-year mark, the CE is to administratively close out the impairment claim. The CE sends a letter to the employee explaining the administrative closure and the two-year requirement.
(1) ECS Coding of Untimely Requests for Re-evaluation. If an employee claims re-evaluation of a covered illness for which an impairment final decision has been issued prior to the two-year mark, the proper ECS code for impairment claimed should be entered for the postmark date or the date received by the DO, FAB, or the RC, whichever is the earliest determinable date.
c. Time Requirements Not Applicable. If an employee is issued a 0% impairment rating final decision and subsequently obtains new impairment rating greater than 0%, the two-year wait period does not apply. The new evidence for increased impairment is to be reviewed and the final decision with the 0% impairment evaluated for reopening. However, if the two-year wait period has elapsed between the 0% rating and a request for increased impairment, a reopening is not required since it is considered a new claim.
13. Issues Involving Survivor Election. If a covered Part E employee dies after submitting a Part E claim but before compensation is paid, and death is caused solely by a non-covered illness or illnesses, the survivor may elect to receive the compensation that would have been payable to the employee, including impairment and/or wage-loss.
a. Instances Where Impairment is Not Available to a Survivor. In some cases, impairment rating is not possible in accordance with the AMA’s Guides because the necessary diagnostic or medical evidence is unavailable. If there is no way to collect new information following the death of the employee, the CE advises the survivor of the deficiency in a letter. The CE should also advise the survivor that he/she may only elect to receive compensation for wage-loss. If the CE is uncertain as to whether there is sufficient medical evidence to perform an impairment rating following the death of the employee, the case may be referred to a CMC for consideration. Any deficiencies noted by the CMC should be furnished to the survivor in a letter from the CE.