What is permanent disability? Who determines if an injured employee has sustained permanent disability and what can you do if you disagree? "A disability is considered permanent when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment" (8CCR §10150).
The finding of permanent disability will most likely occur near the end of a claim. If by that time, an employee has not completed and returned the Claim Form (DWC 1); they should do so as soon as possible. The return of the form provides for an increase in disability payments if they are provided late. The return of the DWC 1 also allows for additional benefits beyond the basic. For more information about the DWC 1 see: California Workers' Compensation: What to Do If You are Injured at Work.
When an employee suffers an injury in the course and scope of their employment, they may sustain permanent disability (PD) residuals which affect their ability to earn a living. An injured worker may be entitled to permanent disability benefits even if they are able to return to work.
A doctor will make a determination as to when an employee's injury or illness has stabilized and no change is likely. At that time, a permanent disability evaluation will be conducted and the employee's condition will be categorized as permanent and stationary (P&S), another term used is maximal medical improvement (MMI). The doctor will also determine whether the industrial injury or illness caused any permanent disability and whether there are any apportionment factors [LC §4663(b)].
Apportionment refers to permanent disability caused by something other than the industrial injury. "The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment" (LC §4664).
The doctor will send a medical report to the claims administrator, outlining how the injury has affected the injured worker's ability to do normal life activities, whether any permanent disability exists and whether any portion of the disability was caused by something other than the work injury. The report will conclude with an impairment number.
Permanent Disability Rating and Payments
The report is then valuated by the claims administrator, using the impairment number and permanent disability rating formula to calculate a percentage of disability. The formula includes the injured worker's age and occupation at the time of the injury and the future earning capacity. Any portion of the disability caused by something other than the industrial injury (apportionment) is subtracted out of the calculation. A rating specialist from the Disability Evaluation Unit (DEU) may help calculate the rating.
When the medical report has been rated, the claims adjuster will use the rating to determine the amount of money to be paid. Permanent disability payments should commence within 14 days after temporary disability benefit payments have ended. The PD payments should continue until a reasonable estimate of the disability amount has been paid. If an employee has continued to work, permanent disability payments will begin from the date the doctor finds the medical condition permanent and stationary. Payments will continue to be paid every two weeks until a reasonable estimate of the disability amount has been paid.
When the actual amount of PD due has been determined, any amount over the estimate must be paid. If the injured worker is represented by counsel, the insurance company may withhold a percentage of PD money for payment of the attorney's fee.
If the injured worker or the claims administrator disagrees with the doctor's findings, they may seek an examination and opinion from a Qualified Medical Evaluator (QME). The QME is a physician licensed by the appropriate licensing body for the state of California and appointed by the Council pursuant to Labor Code Section 139.2, provided however, that acupuncturist QMEs shall not perform comprehensive medical-legal evaluations to determine disability [8 CCR §1. (t)]. The employee may request a QME panel from the Division of Workers' Compensation (DWC) Medical Unit.
The claims administrator must provide the injured worker with an Employee's Disability Questionnaire (DEU Form 100) prior to the QME appointment. The employee will be instructed in the form and manner prescribed by the Administrative Director to complete the questionnaire and provide it to the Qualified Evaluator at the time of the examination [8 CCR §10160 (b)].
The employer is to pay the cost of the QME examination and the employee has ten (10) days from the date the claims administrator advises them to begin the QME process to submit the request form to the DWC Medical Unit. If the employee does not submit the form within ten (10) days, the claims administrator will do it for them and will also get to choose the kind of doctor they will be examined by.
In cases where an injured worker is not represented and a Qualified Medical Evaluator's formal medical evaluation indicates apportionment of the permanent disability, a summary rating determination will not be made until a Workers' Compensation Judge has reviewed the medical evaluation to determine if the apportionment is inconsistent with the law. The determination of the Workers' Compensation Judge will not be admissible in any judicial proceeding (8 CCR §10162).
Permanent disability benefits are finalized with a settlement or award for benefits. This must be approved by a Workers' Compensation Judge. If an employee is represented by an attorney, the attorney will assist the employee in obtaining a final award. If the employee is not represented, they may ask the claims administrator for assistance or they may contact the Information and Assistance officer at their local Workers' Compensation Appeals Board.
Settlements and Awards
There are two types of settlements an employee can enter into with the claims administrator. Both settlements must be approved by a Workers' Compensation Appeals Court Judge.
1. Stipulation with Request for Award. This type of settlement usually includes a specific sum of money, paid over a specific period of time and includes the provision for future medical care.
2. Compromise and Release. This type of settlement provides the injured employee with a lump sum payment, resolving the entire claim, including any potential future disability or medical treatment.
If the employee and claims administrator cannot agree on a settlement, the employee may go before the Workers' Compensation Appeals Court Judge, he/she will issue a Findings and Award (F&A). This type of an award will generally consist of a specific amount of money, usually paid over a period of time and a finding on whether there is a need for future medical treatment and its extent.
For Workers' Compensation legal issues in Southern California, talk to an attorney who is a Certified Specialist in Workers' Compensation.
*The information contained in this article is general and not intended as a substitute for legal advice. Changes in the law or specific facts of a case may result in legal interpretations different than those presented here.
For additional information on California Worker's Compensation, see the following articles;