Morgan’s Tip of the week- Impairment confusions
Greetings, one of the more confusing aspects of Florida WC is the handling of permanent impairment benefits under 440.15(3). Here are a few issues that come up:
- Two plus two equals what? When a claimant has multiple injuries you may get a rating for each body part. And while you would think you just add them together…nope. The 1996 FL Uniform Permanent Impairment Guide has a section (15) with a chart on page 116 that shows how to add multiple ratings together, and at the higher ratings it isn’t simple all-American math. You have to use the chart. (If you’d like a copy of the impairment guide please let me know and a good mailing address).
- For that same reason, IIB’s are not due until the claimant reaches overall MMI for all body parts. After overall MMI then “impairment benefits are due and payable within 14 days after the carrier has knowledge of the impairment.”
- The IB rate you pay is 75% of the average weekly Temporary Total Disability benefit. However if the claimant has returned to work for your employer or any other employer, and they are earning exactly the AWW or more, you can cut the IB rate in half, to 37.5% of the TTD rate. The 1st DCA has said this is just math, there are no defenses. So if your claimant was fired for punching his boss, you have to pay the full higher IB rate. There is no voluntary limitation of income defense to the math. You do have to confirm the earnings weekly, even though they are paid bi-weekly, to see if the claimant earned the AWW or not.
- The scale for how many weeks of IB’s a claimant gets for each rating point is confusing. So for each rating point from 1-10% they get two weeks. Then from 11-15% they get 3 weeks, 16-20 is 4 weeks, and 21-99 is 6 weeks. (Why did they skip a 5-week bracket? I don’t know, to mess with you?) So for an 11%, you would pay 23 weeks, 10% x 2 weeks + 1% x 3 weeks = 23 weeks.
The entire statute is below.
(3) PERMANENT IMPAIRMENT BENEFITS.—
(a) Once the employee has reached the date of maximum medical improvement, impairment benefits are due and payable within 14 days after the carrier has knowledge of the impairment.
(b) The three-member panel, in cooperation with the department, shall establish and use a uniform permanent impairment rating schedule. This schedule must be based on medically or scientifically demonstrable findings as well as the systems and criteria set forth in the American Medical Association’s Guides to the Evaluation of Permanent Impairment; the Snellen Charts, published by the American Medical Association Committee for Eye Injuries; and the Minnesota Department of Labor and Industry Disability Schedules. The schedule must be based upon objective findings. The schedule shall be more comprehensive than the AMA Guides to the Evaluation of Permanent Impairment and shall expand the areas already addressed and address additional areas not currently contained in the guides. On August 1, 1979, and pending the adoption, by rule, of a permanent schedule, Guides to the Evaluation of Permanent Impairment, copyright 1977, 1971, 1988, by the American Medical Association, shall be the temporary schedule and shall be used for the purposes hereof. For injuries after July 1, 1990, pending the adoption by rule of a uniform disability rating agency schedule, the Minnesota Department of Labor and Industry Disability Schedule shall be used unless that schedule does not address an injury. In such case, the Guides to the Evaluation of Permanent Impairment by the American Medical Association shall be used. Determination of permanent impairment under this schedule must be made by a physician licensed under chapter 458, a doctor of osteopathic medicine licensed under chapters 458 and 459, a chiropractic physician licensed under chapter 460, a podiatric physician licensed under chapter 461, an optometrist licensed under chapter 463, or a dentist licensed under chapter 466, as appropriate considering the nature of the injury. No other persons are authorized to render opinions regarding the existence of or the extent of permanent impairment.
(c) All impairment income benefits shall be based on an impairment rating using the impairment schedule referred to in paragraph (b). Impairment income benefits are paid biweekly at the rate of 75 percent of the employee’s average weekly temporary total disability benefit not to exceed the maximum weekly benefit under s. 440.12; provided, however, that such benefits shall be reduced by 50 percent for each week in which the employee has earned income equal to or in excess of the employee’s average weekly wage. An employee’s entitlement to impairment income benefits begins the day after the employee reaches maximum medical improvement or the expiration of temporary benefits, whichever occurs earlier, and continues until the earlier of:
1. The expiration of a period computed at the rate of 3 weeks for each percentage point of impairment; or
2. The death of the employee.
Impairment income benefits as defined by this subsection are payable only for impairment ratings for physical impairments. If objective medical findings can substantiate a permanent psychiatric impairment resulting from the accident, permanent impairment benefits are limited for the permanent psychiatric impairment to 1-percent permanent impairment.
(d) After the employee has been certified by a doctor as having reached maximum medical improvement or 6 weeks before the expiration of temporary benefits, whichever occurs earlier, the certifying doctor shall evaluate the condition of the employee and assign an impairment rating, using the impairment schedule referred to in paragraph (b). If the certification and evaluation are performed by a doctor other than the employee’s treating doctor, the certification and evaluation must be submitted to the treating doctor, the employee, and the carrier within 10 days after the evaluation. The treating doctor must indicate to the carrier agreement or disagreement with the other doctor’s certification and evaluation.
1. The certifying doctor shall issue a written report to the employee and the carrier certifying that maximum medical improvement has been reached, stating the impairment rating to the body as a whole, and providing any other information required by the department by rule. The carrier shall establish an overall maximum medical improvement date and permanent impairment rating, based upon all such reports.
2. Within 14 days after the carrier’s knowledge of each maximum medical improvement date and impairment rating to the body as a whole upon which the carrier is paying benefits, the carrier shall report such maximum medical improvement date and, when determined, the overall maximum medical improvement date and associated impairment rating to the department in a format as set forth in department rule. If the employee has not been certified as having reached maximum medical improvement before the expiration of 98 weeks after the date temporary disability benefits begin to accrue, the carrier shall notify the treating doctor of the requirements of this section.
(e) The carrier shall pay the employee impairment income benefits for a period based on the impairment rating.
(f) The department may by rule specify forms and procedures governing the method of payment of benefits under this section.
(g) Notwithstanding paragraph (c), for accidents occurring on or after October 1, 2003, an employee’s entitlement to impairment income benefits begins the day after the employee reaches maximum medical improvement or the expiration of temporary benefits, whichever occurs earlier, and continues for the following periods:
1. Two weeks of benefits are to be paid to the employee for each percentage point of impairment from 1 percent up to and including 10 percent.
2. For each percentage point of impairment from 11 percent up to and including 15 percent, 3 weeks of benefits are to be paid.
3. For each percentage point of impairment from 16 percent up to and including 20 percent, 4 weeks of benefits are to be paid.
4. For each percentage point of impairment from 21 percent and higher, 6 weeks of benefits are to be paid.
Morgan Indek | Managing Partner