Evaluation of Permanent Disability

Permanent disability is intended to compensate an employee for limitations that an employee may physically have from an on the job injury. Many people have a permanent disability, yet still return to their prior job. In this article, our Sacramento Workers’ Compensation Attorney will cover everything you need to know about the evaluation of permanent disabilities. In particular, we will discuss how permanent disability is defined and who decides your percentage of permanent disability. We will also examine everything you need to know about Qualified Medical Examiners and the effect that pre-existing conditions can have on a permanent disability award.

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How is permanent disability defined under the California workers' compensation system?

Permanent disability is the condition that remains when "the employee has reached maximum medical improvement, meaning his or her condition is well stabilized and unlikely to change substantially in the next year with or without medical treatment. 

Measuring disability used to be based on the concept of limitations that an employee would have in the overall workforce. While that concept tends to mirror modern-day measurement standards, the official standard is based on a percentage of whole-body impairment determined using the American Medical Association Guides to Evaluation of Permanent Impairment.

Who decides when someone is permanently and stationary and the percentage of permanent disability?

The ultimate decision as to whether someone is permanently disabled is not the employer or the claims adjuster, but rather a judge from the Workers' Compensation Appeals Board. However, workers' compensation judges are not historically doctors and do not physically exam an injured employee. They make their decisions based on the evidence brought to them by the injured employee or their attorney.

The decision is heavily impacted by the reports prepared by the Qualified Medical Evaluator, or in some cases, an Agreed Medical Evaluator. Those evaluators are neutral physicians that have been chosen to evaluate the employee to determine whether they have reached maximum medical improvement and the percentage of improvement. A decision by the evaluator is not binding on the court, and the court can hear other evidence to vary from that medical evaluation, however that evaluation carries a tremendous amount of weight in determining the questions of disability. 

What is a Qualified Medical Evaluator, and when and how is one selected?

[Caution: If you are at the stage of needing a Qualified Medical Evaluator, this is traditionally the most important time in your case, and it is highly suggested you have a free consultation with one of our Sacramento Workers' Compensation Attorneys! Proceeding without an attorney at this point could hurt your case the most!]

A Qualified Medical Evaluator is a physician or chiropractor who has been certified by the Workers' Compensation Medical Unit to examine an injured worker and to write an objective and neutral report based on the condition of the injured employee. A Qualified Medical Evaluator's opinion is not conclusive about the condition of an employee, but will be heavily considered by a workers' compensation judge who makes the final decision.

There is generally no need for a qualified medical evaluator for a workers' compensation case until there is a dispute as to whether the employee has reached maximum medical recovery, or there is a dispute as to the extent of limitations an employee has after reaching maximum medical improvement. If either of these disputes exists, either the insurance adjuster or the employee can request that a panel of qualified medical evaluators be assigned.

To be assigned a panel of qualified medical evaluators, a request is submitted to the Workers’ Compensation Appeals Board. The WCAB will then solicit from the employee what type of specialty that they would like the Qualified Medical Evaluator to have (e.g., Pain Medicine, Orthopedic Surgery, Internal Medicine). Once a specialty has been selected, the Workers’ Compensation Appeals Board will produce a list of three physicians that meet that criteria. A physician from the list is either elected or eliminated, depending on whether the employee is represented at the time.      

Before selecting either the type of specialty or the specific doctor, to perform the medical evaluation, it is highly recommended that you contact one of our Sacramento Workers’ Compensation Attorneys for a free consultation. This is that time period that you can hurt your case the most by not being adequately represented. 

How is my permanent disability impacted by pre-existing or subsequent conditions?

The effect of pre-existing conditions on a permanent disability award can vary dramatically from case to case. If you have pre-existing conditions, not consulting with an attorney about your workers' compensation case could be disastrous. Generally speaking, the workers' compensation system provides that your disability be apportioned between what your work-related injury and factors that are non-work related such as hereditary, pre-existing, and subsequent non-industrial injuries.  

The tricky part is that the apportionment requirement is based on what caused the permanent disability, not what caused the injury. In other words, the percentage of what an employee's injury is causally related to his or her employment is not necessarily the same as the percentage to which an applicant's permanent disability is causally related to his or her injury.  

The matter is further complicated by who has the burdens of proof showing that apportionment is appropriate. Generally, the employee has the burden of proving that an industrial injury exists and that at least some of the disability is related to the industrial injury. The defendant then has the burden of showing what percentage should be attributed to the industrial injury and what should be attributed to non-industrial factors. 

If you are at a stage in which you need a Qualified Medical Evaluator or maybe be permanent and stationary, we highly recommend you contact one of our Sacramento Workers’ Compensation Attorneys. In this article, we attempted to address questions about the evaluation of permanent disabilities that our Sacramento Workers’ Compensation Attorneys face daily. We hope you will consider contacting one of the attorneys at the Sacramento Workers Compensation Attorneys, P.C. if you have other questions regarding the evaluation of your permanent disability or your workers’ compensation case.