Sunday, January 04, 2009
Impairment vs. Disability in Workers Comp
A number of years ago Colorado joined most of the other states in changing permanent disability to permanent impairment. With respect to permanent disability unless you are totally disabled your benefits are limited to what is called impairment. You receive a "rating" from an authorized doctor or a Division IME doctor and unless overturned your benefits are based on this impairment rating. This amounts to the medical people deciding on your legal benefits by determining your impairment. While the judge can decide which rating is correct it is still a function of anatomical damage in almost all cases. The older historical basis of determining your loss of earning capacity was discarded. So let's say you are hurt and lose your trade and it means a true loss of future earnings over your life. The amount you'd receive is still based on the rating although for whole person injuries the formula does include an age factor and a wage factor. Still it is not an individual assessment of your loss of a job or trade. What Colorado and most other states did was say that physicians must use the American Medical Association Guides that are published to perform the rating. In Colorado we use the AMA Guides 3rd edition revised. This is old. They are now publishing the AMA Guides 6th edition. Is this edition better for injured workers? Nope...it's worse. Any edition of the Guides will say that it is not trying to determine disability only damage to the body or psyche. In the real world it is used to determine benefits in what used to be a legal question of disability. Also in my opinion the editorial board assembling the Guides are largely composed of doctors who are not really claimant oriented. The 6th edition seems to now be diagnostic based rather then measurement based on your individual range of motion. Claimant lawyers are highly critical of this and also well aware that the ratings coming out from this are often much lower then the 5th edition. Colorado has stayed with the 3rd edition revised but my concern is that all such impairments are artificial ways of paying benefits. The whole concept of paying for your disability has been hijacked by this impairment rating process. No one seems to care if you lose your trade. All these "reforms" did was to remove permanent disability issues and replace them with artificial ways of calculating benefits. I do understand that insurers wanted to save money but for that we have caps or limits in total benefits. What they did to the purpose of workers comp has always bothered my sense of fairness in compensating injured workers. The only exception is when you are totally disabled. Then the rating is less important and consideration is given to your age, education and lack of employability. I am including an excellent link to an audio discussion that interviews the prime proponent of the 6th edition and also a claimant's attorney. It is long but quite a listen. That link is here. Additionally a crtical review was written and put at the LexisNexis website here.