What is "Permanent & Stationary?"
 
Eventually, after you have received appropriate treatment to cure or relieve the
effects of your work injury, you will reach a point of "maximum medical
improvement." Your doctor will then declare you to be "permanent and
stationary." This doesn't necessarily mean that nothing will ever change again.
It does mean that you have reached a level where things are staying pretty much
the same.
Sometimes this will be a conditional determination. The doctor might say that
you could be helped by a particular surgery or other course of treatment but if
you refuse that surgery or other treatment, or if the insurance will not
authorize it, then you are permanent and stationary.
Your doctor will issue a final report when you are permanent and stationary.
This report will include a statement of what disability the doctor believes you
to have now. This is your "permanent disability." The doctor will also indicate
whether or not the doctor believes that your permanent disability prevents you
from returning to the job that you were performing at the time of your injury
and/or your "usual and customary occupation." Your doctor will also indicate
whether or not the doctor believes you will need medical care in the future.
If you have had previous injuries or other conditions which may have caused part
of your permanent disability, the doctor will describe what portion of your
disability the doctor believes to be related to those conditions and what
portion of your disability the doctor believes to be related to the current work
injury claim. This is known as "apportionment."
How will my permanent disability be evaluated?
This section applies to injuries which are rated under the "old" disability
evaluation system, all injuries not subject to evaluation under the A.M.A.
system taking effect about January 1, 2005.
Permanent disability is described in words by your doctor and converted to a
"percentage of disability." This process is called "rating." The Workers'
Compensation Appeals Board has employees known as "raters" who translate the
language of the doctors report into this percentage of disability. The
percentage is intended to be a percentage of the whole person. For instance, you
may have lost 100% of the use of your arm, but this would be a disability rating
of 35% of the whole person. The loss of an entire finger might only be 2% or 3%
disability.
Your attorney has some skill in rating disabilities but will also rely on the
official rater for complicated issues. You may see a rating either in a letter
from your attorney to the insurance company or on an advisory rating from the
rater. It looks like this:
12.1-30-250F-30-32:0
There are five parts to the rating. The first number is the number of the
disability. That is where it is found in the disability rating manual. For
instance, 12.1 is the number for a disability to the spine, back, or neck. The
second number is the percentage value of the disability described by the doctor
before adjusting it for age and occupation. This is known as the "standard"
disability. A "no heavy work" restriction for a back is a 30 standard, as
indicated above. The next number followed by a letter is an occupational
category. Group 250, as indicated above, is the group for Taxi Drivers or Pizza
Deliverers, etc. The F after the group number is the modifier for that group.
The rating manual has a chart where we find the 30% down the left hand column
and go over to the column number F to find that the disability remains a 30% for
this occupational category. If the letter were below F such as C, the 30%
disability would adjust to a lower number. If the letter were above F such as H,
the disability would adjust to a higher percentage of disability. The fourth
number is the adjusted disability after modification for the occupational
category. The fifth number is the adjusted disability after modification for
age. Age 37 to 41 is the middle ground where the occupation does not change. For
a person older than 41, the disability will go up and for a person younger than
37, it will go down. The age used is your age on the date of injury.
It is important for the rater and the attorney to have a full description of
your job to be sure that the correct occupational category is used.
For injuries before April 1, 1997 the system is similar but some of the numbers
are different such as the occupational categories. The most important number is
the final number which is your level of disability.
To convert this to money, we look on a chart which tells the dollar value for
each percentage of disability according to the date of injury. Almost all
changes in workers' compensation law go by date of injury so as the legislature
raises the amount of money you are entitled to, they do it only for those
injuries which occur after a certain date.
This section applies to ratings under the AMA system of rating disability,
effective on or about January 1, 2005
In this system, the doctor will describe your disability as a percentage of
"impairment." This is entirely different from the earlier estimates of work
capacity.
The doctor must follow certain complicated rules contained in the (AMA) Guides
to the Evaluation of Permanent I, 5th Edition. The doctor will, for each
disability, list a percentage of impairment, which will be derived from charts
and calculations. There will be a Whole Person Impairment percentage for each
disability. If you have more than one disability, each one is rated out and the
total is combined by reference to a chart which is designed to keep the total
from ever reaching 100%.
The new ratings will look like this:
The following example is based on a draft copy of the rating manual and may not
be exactly the same as whatever version is finally adopted.
15.01.02.02-8%-10%-470H-13%-17%
The first 8 digits (15.01.02.02) refer to a specific type of injury and where it
is found in the AMA guides. This example is for a soft tissue lesion of the
cervical spine.
The "8%" is the AMA "impairment standard" expressed as a Whole Person Impairment
percentage. The doctor gets this number from the measurements that he makes and
the charts and calculations in the AMA Guides.
The "10%" is the 8% WPI impairment standard after it has been modified for
"earning capacity" by a formula contained in the new rating manual. Different
parts of the body receive different modifiers. For instance, the AMA percentage
(WPI impairment) for a vision injury is only multiplied by 1.1000, but the AMA
percentage for a hearing injury is multiplied by 1.4000. These numbers are
really too low to make this schedule compare at all to the old schedule.
Disabilities will, for the most part, be much lower under this schedule.
The "470H" in the example, refers to an occupational grouping and the modifier
that goes with it. This part of the rating is essentially the same as the old
system.
The "11%" is the rating after adjustment for age. This is, also, essentially the
same as the old system. This final number is what determines how much money you
get.
What if the doctor says I cannot return to my old job?
If you were injured before January 1, 2004, then this section applies to you. If
you were injured after that it does not.
In the event that the doctor determines that you are unable to perform the
duties of your usual and customary occupation or the job you were performing at
the time of the injury, you are eligible for vocational rehabilitation. This
benefit is separate from all other workers' compensation benefits and now you
can settle Vocational Rehabilitation for up to $10,000.
Your employer may satisfy his obligation to provide you with vocational
rehabilitation by offering you a job which is within your work restrictions. For
instance, he might modify your job so that you never have to lift anything over
25 pounds if this is your work restriction or he may offer you an entirely
different job within the company which meets your restrictions. If the job is
within your restrictions and pays no less than 85% of your previous average
weekly earnings and is guaranteed to last for at least one year, then the
employer has met his obligation to provide vocational rehabilitation whether or
not you accept the job.
When the offer is made you have 30 days to accept or reject it. If you reject
it, vocational rehabilitation will be closed and we move onto the next stage of
the case. If you accept it, vocational rehabilitation will be closed and if we
agree on the percentage of permanent disability that you have you will begin
receiving permanent disability advances while you are receiving your paycheck.
If your employer does not have work available within your restrictions, then you
will be assigned a vocational rehabilitation counselor. This is usually done in
cooperation with your attorney. Usually the attorney and the insurance company
are able to agree on a vocational rehabilitation counselor to assist you in your
vocational rehabilitation. The counselor will evaluate your abilities and your
interests and help to prepare a plan that either involves finding a different
job within your restrictions or if this is not practical without training
providing you with some training and then finding a job. You will receive
Vocational Rehabilitation Maintenance Allowance during this process. The
employer is not required to spend more than $16,000.00 on the entire process,
including the money that is paid to you. A separate article deals more
thoroughly with the different money benefits available to you. Another article
more thoroughly explains the vocational rehabilitation process.
If your injury occurred after January 1, 2004, the following applies to you.
For injuries occurring after 1/1/04, there is no longer a vocational
rehabilitation benefit, as described above, but there is a "voucher" to which
all injured workers are eligible. The amount varies depending on the severity of
your injury. It can only be used to pay for school. There is no provision for
income to support you while you use it other than your Permanent Disability
benefits.
What if the insurance company or I do not agree with the doctor's opinion?
The following describes the system, for injuries occurring before January 1,
2005.
If the insurance company does not agree with the doctor's opinion they will be
entitled to send you to be evaluated by another doctor. First they have to try
to agree with your attorney on a doctor. If no agreement is reached, then they
will send you to a different doctor who will evaluate your disability,
apportionment, and need for future medical care.
If you disagree with the opinion of your treating doctor then your attorney must
initiate the process of objecting to the opinion and trying to agree on a doctor
with the insurance company. This process is dealt with more thoroughly in a
separate article about doctors and their reports.
The following describes the system for injuries occurring after January 1, 2005.
If your attorney and the insurance adjuster or lawyer cannot agree on a doctor
to evaluate you, then we must request, from the State, a list of three doctors.
Each side can strike one of the doctors on the list and the one that is left
will evaluate your disability.
Under both systems, there will be either one medical report upon which everyone
agrees or two medical reports describing your disability. Based on the rating of
these reports, your attorney will be able to tell you a range of dollar benefits
which you will get depending on which report is accepted by the judge.
When can I settle my case?
Once we have a final determination of your permanent disability, we can begin
the process of trying to settle your case.
The following applies to injuries which occurred before January 1, 2005. If you
are participating in vocational rehabilitation, it is strongly recommended that
you do not settle your case by compromise and release until vocational
rehabilitation is complete. The reason is that as long as you are in vocational
rehabilitation and your case is not settled, you are allowed to claim medical
benefits and further temporary and permanent disability for any injury which
occurs during the course of your vocational rehabilitation. Even if you are at
the library researching job possibilities and lightning strikes you and you are
rendered paraplegic, you will be covered by the workers' compensation carrier
for all medical and monetary disability just as if the injury happened at work.
While it is not likely that you will get injured in vocational rehabilitation,
it is a valuable enough insurance that you should keep it open as long as
possible.
What if I need more treatment?
The doctor will indicate whether he/she thinks you will need treatment in the
future. Usually if your doctor thinks that treatment now will continue to
improve your condition, then he will not find you permanent and stationary.
However, sometimes the doctor will indicate that during periods of
"exacerbation", times when you feel worse, you may need treatment of some sort
or another. Sometimes the doctor will say that you need to continue taking
medication or that you may occasionally need physical therapy or chiropractic
adjustments, etc. If it takes a long time to settle your case, or if you start
to feel worse during vocational rehabilitation or any time before your case is
closed, you may be able to return to the doctor for whatever treatment the
doctor indicated you might need in the future. There are too many possibilities
to discuss this here. They range from continuing to take over-the-counter
medication to a total knee replacement sometime in the future. Please read the
"future medical care" section of the doctor's report carefully to see what
he/she has indicated.
After January 1, 2005, you may be required to get all medical care from the
employer's or insurer's Medical Provider Network.
What if we cannot settle my case?
Once your attorney has evaluated your case, he will usually make a demand for
settlement upon the insurance company. If the case is not settled promptly, the
attorney will usually request a court hearing. You will receive another article
which describes what happens at these hearings.
As usual, please communicate with your attorney if you have any questions.
© Robert S. Havens, 2005
This article is for general information, and not meant as
specific legal advice. You should always see an attorney for specific legal
questions.
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