New Hampshire Permanent Impairment
Scheduled Permanent Impairment Awards in New Hampshire
A. What is Permanent Impairment?
Permanent impairment is the total or partial loss of the use of a member of the body. A permanent impairment award may be given only for damage to one or more “member[s]” of the claimant’s body as enumerated in RSA 281-A:32, Scheduled Permanent Impairment Award. The scheduled members consist of the upper extremities, including arms, hands and digits; the lower extremities, including legs, feet and toes; the ears, eyes and the spinal column or spinal cord. Permanent damage to an unscheduled body part, such as damage to facial muscles not affecting vision, does not entitle a claimant to a permanent impairment award. However, injury to an unscheduled body member, such as the brain, which results in physical manifestations in scheduled body members will entitle the injured worker to a permanent partial impairment award, even if the impairment is episodic, for instance, in the case of recurring seizures. Petition of Paul Blackford, 138 N.H. 132 (1993). New Hampshire recognizes permanent impairment involving scarring, disfigurement, or other skin impairment resulting from a burn or burns. RSA 281-A:32, IX. Also, injuries to the brain may result in a recognized impairment award. RSA 281-A:32, IX. Injury to the brain means central or neurological impairment due to central nervous system injury.
An award for permanent impairment is “separate and distinct from any other benefits available under the workers’ compensation statute.” Petition of Lapinski, 126 N.H., 772, 775 (1985). The award is in addition to any rights to vocational rehabilitation, weekly workers’ compensation benefits, and/or medical, hospital and remedial care provided for elsewhere in the Workers’ Compensation Act. A claimant may be entitled to a scheduled permanent impairment award even if there is no lost time from work as a result of the industrial accident. Corson v. Brown Products, Inc., 120 N.H. 665 (1980).
If an injury causes a permanent loss to more than one member of the body as scheduled in paragraphs I-VIII of the permanency section of the statute, or results in injury to the spinal column or spinal cord to the brain, or involving scarring due to burns, an award shall be given on the basis of a percentage of the whole person, RSA 281-A:32 IX. A 100% permanent impairment of the whole person is the equivalent of 350 weeks worth of benefits at the claimant’s total disability rate. A claimant who receives a permanent impairment award for a body member may not also receive an award for the constituent parts of that member even though those parts are scheduled in the statute. For example, “if there is an award for the loss of an arm, there cannot be an award also for the loss of the hand and fingers from the same extremity.” Corson v. Brown Products, Inc., 119 N.H. 20, 24 (1979).
The claimant bears the burden of proof with regard to the issue of permanent impairment.Knight Broadcasting of New Hampshire v. Kane, 109 N.H. 565 (1969). By statute, any medical opinion regarding permanent impairment must be based upon the most recent edition of The American Medical Association’s Guides to the Evaluation of Permanent Impairment (hereinafter the AMA Guides). RSA 281-A:32 IX.
In accordance with administrative rule making authority, the Labor Commissioner has determined that the AMA Guides “…shall be the exclusive determinant for the assessment of [a] permanency award…” LAB. 511.04 (b)(1). Medical opinions with regard to permanent impairment “…must contain affirmation…” that the physician utilized the most recent edition of the AMA Guides is the 5th Edition, effective November, 2000.
Despite the fact that the AMA Guides has been adopted as the “exclusive determinant” of permanency, there is at least one situation in which the scheduled impairment allowed by the statute exceeds that due under the AMA Guides. Where a claimant has suffered the amputation of the entire distal phalanx of a digit, the statute provides for an award equal to one-half (50%) of the scheduled loss for the entire digit, RSA 281-A:32 II. By contrast, the use of the AMA Guides would result in an assessment of only 45% of the digit for amputation at the DIP (most distal) joint. Department regulations allow the higher award based on statutory language in light of the remedial nature of the statute. It pays to always compare the award specified in the statute to that allowed by the AMA Guides. The injured worker is entitled to whichever is higher where there is a disparity.
B. Going Outside Strict Use of the Guide (Appeal of Paul Rainville)
Appeal of Paul Rainville, 143 NH 624, 732 A.2d 406 (1999), the New Hampshire Supreme Court ruled that a physician may deviate from strict adherence to the AMA Guides since it, “does not and cannot provide answers about every type and degree of impairment” due to the, “infinite variety of human disease,” constant evolution of the medical profession and the complexities of human functioning. The Court was ruling on the WCAB’s decision in a case in which the treating physician had testified that the AMG Guides, “has a couple of sections the allow you to go outside…of basic techniques of range of motion to [assess impairment].” Id.
The Court held that, “if a physician exercising competent professional skill and judgment, finds that the recommended procedures in the AMA Guides are inapplicable to estimate impairment, the physician may use other methods not otherwise prohibited by the” AMA Guides. Id. The Court hastened to add, however, that, “[t]he reasons for such a deviation must be fully explained and the alternative methodology set forth in sufficient detail so as to allow a proper evaluation of its soundness and accuracy.” Id.
C. Death and Permanent Impairment
Until recently, death voided the claimant’s entitlement to a scheduled permanent impairment award under our statute. Previously, if a claimant died prior to a permanent impairment award being made, and not paid in full, entitlement to a permanency award died with the injured worker. Corson v. Brown Products, Inc., 120 N.H. 665 (1980). RSA 281-A:32 XIII, as amended in 2000, provides, “Balance paid to Estate. The balance of an unpaid weekly scheduled award shall, upon the death of the employee, be paid to the Estate of the employee.”
D. Payment of a Permanent Impairment Award
A permanency award approved by the Department of Labor will ordinarily be paid in a single payment. RSA 281-A:32, XI. This section also provides that payment of the scheduled award is due upon prompt medical disclosure, after maximum medical improvement has been achieved. RSA 281-A:32 XI, requires the carrier to notify the Labor Commissioner of its objection to an assessed impairment rating within 15 days after disclosure. The carrier then has 30 days to arrange for a medical examination and to request a hearing.
As with any other award under the workers’ compensation statute, an attorney may not charge a fee in conjunction with obtaining that award unless the Department of Labor approves it. Ordinarily, the Department will not approve a fee in excess of 20% plus allowable expenses.
E. Calculating the Amount of the Permanent Impairment Award
Calculation of the amount of a permanent partial impairment award is a straightforward matter. The decimal equivalent of the percentage of the impairment to the affected body member, or to the whole person, is multiplied by the number of weeks allotted for a complete loss of that body member, or whole person, by the statute. The product is then multiplied by the weekly workers’ compensation rate, which the claimant would be entitled to if the claimant were receiving benefits at either the temporary total disability or permanent total disability rate. For example, an injured worker who suffers a 10% permanent partial impairment to the left leg and whose average weekly wage was $600, with a resulting temporary total disability rate of $400, would be entitled to a permanent impairment of $5,600 as follows:
.10 10% impairment to the leg
x 140 value of total loss of leg (RSA 281-A:32-I(h))
x $400 temporary total disability rate
F. Spinal Impairments
RSA 281-A:32, IX allowing assessment of a whole person permanent partial impairment as the result of a spinal injury specifically precludes an award for a “soft tissue” injury. The Department of Labor has held that a herniated disc is not a soft tissue injury, thus allowing a whole person permanent partial impairment award for a herniated disc. This is true despite the fact that theAMA Guides entry concerning the issue is captioned “Intervertebral disc or other soft tissue lesions.” Table 5311 at 80. A pure sprain or strain of the back or neck does not give rise to a whole person permanent impairment no matter how long the symptoms persist, while fractures, spondylosis and spondyloisthesis are generally considered non-soft tissue injuries by the Department. Our Supreme Court explicitly upheld the “soft tissue” exclusion of RSA 281-A:32, IX, in Petition of Abbott, 139 NH 412, 420 (1995).
A worker with a non-soft tissue injury to the spinal column or spinal cord will sometimes have a permanent loss to a single extremity caused by the spinal injury due to radicular symptoms. The Department has taken the position that a whole person permanent partial impairment award based upon the spinal injury may not be increased by the resultant loss in an extremity unless the spinal injury results in a permanent loss to either both upper extremities or both lower extremities, or there is an independent non-radicular loss to the extremity. One example of a situation in which the Department of Labor might allow a whole person permanent impairment award based upon a spinal injury to be increased is a claimant who sustains both a fractured L-5 vertebra and a trimalleolar fracture of an ankle in a single work related motor vehicle accident. In the absence of an independent injury to the leg or arm, the whole person permanent impairment award could not be increased. This is in accordance with the language of RSA 281-A:32-IX, which provides that an, “[i]njury to spinal column or spinal cord shall not be construed to permit an award…on the basis of more than one permanent loss, unless such injury results in loss of use of upper or lower extremities.”
There are two different methods of evaluating a spinal impairment set forth in the AMA Guides. The AMA Guides provides that the Diagnosis-Related Estimates (DRE) or “Injury” model should be used in evaluating spinal impairments if the patient’s condition is one of those listed in DRE Tables. The Range of Motion model should be used only where the patient’s condition is not one of those listed in any if the eight DRE categories. However, if disagreement exists about the category of the Injury Model in which a patient’s impairment belongs, then the Range of Motion Model may be applied to provide evidence on the question.
The AMA Guides designates the Range of Motion Model as a method to differentiate between one DRE category and another where there is a question as to which one is appropriate. Where the Range of Motion model is resorted to as a differentiator, the impairment percent assigned to the patient under the Injury Model should not be lower than that of the lowest category of the Injury Model in question . The level of impairment due to an injury does not change under the Injury Model, even if surgery is performed and regardless of whether the patient has a favorable or unfavorable response to treatment. An exception to this is where a patient is further damaged as a result of treatment for the original injury and that damage would also entitle the injured worker to a permanent impairment award beyond that occasioned by the initial injury.
The AMA Guides seems to make it clear that the Range of Motion Model is only to be used to differentiate between one DRE category and another. What, if any, impact the Rainville decision will have in this particular area of permanency assessment remains to be seen.
G. The Concept of Maximum Medical ImprovementThe Concept of Maximum Medical Improvement
The statute provides that “[p]ayment of the scheduled award becomes due upon prompt medical disclosure after maximum medical improvement.” RSA 281-A:32-XI. Maximum medical improvement is reached once the ‘healing period’, which is defined as the period during which recovery or lasting improvement of the condition can reasonably be expected” has concluded. A frequently recurring issue is whether and to what extent a claimant whose condition could be improved by surgery, but who refuses surgery, is precluded from being award a scheduled permanent impairment. Dodier v. State Dep’t of Labor, 117 NH 315, 319 (1997).
H . Appeal Rights
The Labor Commissioner, or his duly designated representative is charged with the task of resolving any disputes with regard to the amount of compensation to be paid, or the percentage of permanent partial impairment to be awarded under the permanency statute. Appeals of the Commissioner’s ruling are to the Workers’ Compensation Appeals Board on a de novo basis. RSA 281-A:43, (b). The Supreme Court will overturn a permanency ruling only if it involved an error of law, could not have been reached in accord with the evidence produced at the initial hearing, or if the trier of fact acted capriciously. Petition of Gunzel, 124 NH 495 (1984).