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Scheduled Injuries- Module 4 of 6

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Scheduled Injuries

          When determining the amount of benefits that an injured worker is entitled to, state statutes divide injuries into two categories: scheduled and non-scheduled. Scheduled injuries are those for which the laws outline (or schedule) a specific maximum number of weeks of benefits to which the worker may be entitled. Non-scheduled injuries are those for which laws provide other means of calculating benefits. This module addresses the calculation of benefits for scheduled injuries. Although laws vary from state to state, generally the amount of benefits that a worker will receive for a scheduled injury depends upon: average weekly wage and compensation rate, the body part injured, the physician’s impairment rating, and the ultimate disability rating.

Average Weekly Wage and Compensation Rate

Average weekly wage is generally defined as the average weekly earnings of the injured worker, in the employment in which the injury occurred, at the time of the injury.[1] While this seems simple, special rules may apply to determine how long in advance of the injury wages are considered; whether the employee worked for the employer for only a short time prior to the injury; whether the employee earned income from more than one employer at the time of the accident; or even when the employee recently received a promotion, earning more money.[2]

States generally look to the workers’ wages for the year prior to the injury to determine what the average weekly wage is. However, laws often vary as to the details of the calculation. For instance, South Carolina uses earnings from the worker’s last four quarters preceding the quarter in which the injury occurred. Quarters would begin in January, April, July, and October. This means that if the injury occurred in September, you would look to the wages from quarters beginning in October of the previous year, and January and April of this year. Furthermore, South Carolina would not necessarily divide these wages by 52 weeks simply because there are 52 weeks in the year. Instead, the total wages would be divided by either 52 weeks, or the number of weeks actually worked, whichever is less.[3] 

Compare this with North Carolina, which uses the wages earned during the 52 weeks immediately preceding the injury, reducing the number of weeks by which you divide the total wages only if the employee missed more than seven consecutive days of work.[4] Certainly the details of the average weekly wage calculation vary by jurisdiction.

If the injured employee only worked for the employer for a short time prior to the accident, then often states will simply determine the average weekly wage by taking the total wages that the worker did earn with that employer, and dividing them by the number of weeks that the employee actually worked for the employer. However, often this method is applied with the caveat that it can only be used where the outcome is fair and just to both the employee and employer. If the outcome is not fair, then the courts will often consider the average weekly wage earned by a person working the same type of job in the same community, though not necessarily the other workers employed by the same employer. Another alternative is simply to use any method that “most nearly approximates the amount [that] the injured employee would be earning were it not for the injury.”[5]

If the employee earned income from more than one employer at the time of the injury, he is generally entitled to consider wages earned from both employers when calculating average weekly wage, as this would be the fairest approximation of his likely future earnings.[6] The employer that is not related to the injury is not required to pay workers’ compensation benefits, but his wages are used to determine the rate at which the other employer must pay benefits.

Some jurisdictions may have specific methods of calculating average weekly wage where the worker received a recent raise or promotion. However, because statutes cannot address every employee situation, it is common for laws to simply provide a catch-all provision; where other methods of calculation result in average weekly wages that are unjust either to the employer or the employee, any alternative method can be used so long as it will most nearly approximate the wages that the worker would be earning if he had not been injured.[7]

However, workers are not compensated with their average weekly wage. Instead, states use a reduced compensation rate to determine benefits. Generally, the compensation rate is sixty-six and two-thirds percent of the worker’s average weekly wage.[8]  However, states can provide maximum and minimum limits on the compensation rate. These limits can be based upon the date of the work injury (as in California and New York),[9] the average weekly wage in the state (as in South Carolina),[10] or other factors.

Body Part Injured

As stated earlier, scheduled injuries are those for which state law outlines a specific number of weeks of benefits to which an injured worker may be entitled for loss of, or loss of use of a specific body part. Usually scheduled injuries are limited to extremities such as legs, feet, toes, arms, hands, fingers, eyes and ears, and they appear in the statutes as a table. For example, North Carolina law includes the following weeks of benefits for each body part:

Thumb          75 weeks                Great toe      35 weeks

Hand            200 weeks              Foot             144 weeks

Arm              240 weeks              Leg               200 weeks

Eye              120 weeks              Back             300 weeks[11]

The number of weeks of benefits to which a worker is entitled for a particular body part will vary from state to state, as may some of the body parts that are specifically included in the scheduled injury statute.

An injured worker will not necessarily receive the total number of weeks listed, as these are reserved for either the total loss of the body part - for example amputation - or total loss of use of the body part. While “loss of use” is generally given it’s everyday meaning, there can be confusion as to what percentage loss of use a worker has suffered if for instance, there is loss of use of a member even though the accident did not directly impact that body part; or where the body part was imperfect prior to the accident.

For example, some states would allow recovery for loss of use of an arm, even though the work injury broke the collarbone, as the injury to the collarbone left the partially disabled. Other jurisdictions may impose greater limitations on recovery in these circumstances, based upon the body part that was directly or physically impacted by the work accident.[12]

Furthermore, there can be great variance in how jurisdictions treat injuries to body parts that were imperfect prior to the work injury. For instance, confusion would arise if prior to a work injury a worker had 50% impaired vision, then a subsequent work injury caused the total loss of the eye. Some jurisdictions would only compensate the worker for 50% loss of the eye, while others would compensate the worker for total loss of the eye.[13] A subsequent module will address assessment of pre-existing conditions in greater detail.

Instead of necessarily being entitled to the full number of weeks listed for each body part, workers are entitled to a percentage of the listed weeks that is equal to the percentage of loss of use of the body part. For example, if a worker loses 50% of the great toe, he would be entitled to 50% of 35 weeks, or 17.5 weeks of benefits at his applicable compensation rate.

Scheduled injury statutes may also outline presumptions that apply when multiple scheduled members are injured or when injury exceeds a particular percentage. For instance, a worker may be presumed permanently and totally disabled if he losses both arms, legs, or eyes. A worker may also be presumed permanently and totally disabled if he loses more than a specific percentage use of the back. These presumptions may be conclusive or rebuttable, which means that employer may be unable to provide evidence to show that the worker is in fact still able to work, or that the burden of showing continuing ability will shift to the employer.[14]

Often scheduled injury statutes include catch-all provisions. These statutes ensure that an injured worker will be compensated for an injury even if the body part is not specifically listed in either the scheduled injury statute or the unscheduled injury statutes.[15] If a worker suffers injuries to multiple scheduled members, then to calculate benefits you would simply add together the benefits that he is entitled to with respect to the injuries to one body part and the benefits to which he is entitled with respect to injuries to the other body parts. However, state law will limit the total recovery to no more than what someone would be entitled to for permanent and total disability.

Impairment Rating

Once the injured worker’s condition reaches maximum medical improvement or is considered permanent and stationary, the employee’s treating or evaluating physician will assign the worker a percentage impairment rating. Though the terminology varies by jurisdiction, when an employee’s condition is permanent and stationary or at maximum medical improvement it means that the condition is not expected to improve further, and is the best it is ever expected to be.

Generally, the impairment rating is intended to reflect how much decreased function the worker now has as a result of the work-related injury. Although jurisdictions evaluate impairment and assign disability in different ways, as of July 2016 thirty-two states required evaluating physicians to refer to the American Medical Association’s Guides to the Evaluation of Permanent Impairment when assigning impairment ratings, while fifteen more states allowed physicians to use the Guides but did not require it.[16]  

The AMA Guides defines “impairment” as “a loss, loss of use, or derangement of any body part, organ system or organ function.” Furthermore, they provide means by which physicians can assess the impairment to a particular body part or system. Based upon the level of impairment, the physician will assign an appropriate impairment rating that reflects how the injury will affect the worker’s ability to perform activities of daily living, which would include things like personal hygiene, basic physical activities such as sitting, sexual function, sensory function such as hearing and seeing, sleep, and communication, but they do not include work. Activities of daily living are included in the physician’s assessment of impairment because they are common to everyone, and they are well understood. In contrast, occupational activities are excluded from the impairment evaluation because they are complex and diverse.[17]

Impairment is generally seen as a purely medical, objective term, for example as in loss of range of movement of a body part or loss of a certain quantum of vision or hearing.[18] Although the AMA Guides provides a uniform means by which physicians can evaluate an injured employee’s level of impairment, state laws vary as to what additional information the physician can or should consider in assigning an impairment rating.

For example, California law allows physicians to consider not only the claimant’s range of motion, level of pain, and likely future medical treatment, but the patient’s work restrictions, apportionment of causation, and the impact upon activities of daily living as well.[19] Other jurisdictions may limit what physicians can consider, for example only permitting consideration of impact on range of motion, pain, and likely future medical treatment.

Disability Rating

It is not only the impairment rating that determines the amount of benefits that an injured worker is entitled to. Instead, the workers’ compensation judge uses the physician’s impairment rating as just one factor in assigning a disability rating. Workers’ compensation statutes generally define “disability” as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.”[20] However, the AMA Guides more specifically define “disability” as “an alteration of an individual’s capacity to meet personal, social, or occupational demands or statutory or regulatory requirements because of an impairment.” It is important to distinguish the factors considered in assigning disability from those considered by the physician in assigning an impairment rating, specifically activities of daily living.[21]

Disability considerations such as a worker’s specific work requirements and activities are specific to individual, whereas impairment ratings and activities of daily living are generally the same for all people. This is demonstrated in situations where two people could have the exact same injury and impairment rating, but have very different levels of disability and therefore, disability ratings.[22]

For example, suppose two people incur identical injuries to the index finger on their right hand, resulting in only slight impairment as to activities of daily living. They would be assigned relatively small impairment ratings. However, they could be assigned very different disability ratings if, for instance, one worker was a right-handed professional pianist, and the other was a left-handed taxi driver. The activities of daily living of each person would be affected similarly, but subjective factors such as handedness and occupation would result in very different disability ratings.

          How closely or loosely the end disability rating reflects the impairment rating depends upon several factors, which may include: the date of the injury (as in California), the worker’s occupation and education, the worker’s age, and even how liberal or conservative the judge assigned to the case is, among other things.[23] Because all of these factors can affect the ultimate disability rating, all of these factors must be considered when estimating the amount of benefits that an injured worker is entitled to and whether to accept a particular settlement offer.

Some states specifically limit the amount by which a judge can increase an impairment rating to arrive at a disability rating. For example, California law outlines limits on how much an impairment rating can be enhanced based upon the date of the injury. For injuries occurring in 2013 or later, the allowed “adjustment factor” is a 1.4. In other cases the applicable adjustment factor is based upon the worker’s anticipated reduced future earning capacity.[24] Other jurisdictions may have different adjustment factors, or may have no limitations at all. Check the law in your jurisdiction to determine whether there are any similar limitations on awards.

All the pieces of the puzzle come together to calculate the worker’s benefits. The number of weeks assigned to the scheduled injury is multiplied by the percentage disability, resulting in the number of weeks of benefits to which the worker is entitled. Then the worker’s compensation rate is multiplied by the number of weeks of benefits. For instance, if a hand is worth 200 weeks and a worker with $250 compensation rate is assigned 25% disability to the hand, you would multiply 200 weeks by 25%, equaling 50 weeks of benefits. Then multiply the compensation rate, $250 by 50 weeks, equaling $12,500.

[1] Beard, G. L., Poteat, S. T., Lamar, M. J., Sumwalt, V. R., Bluestein, M. M., & Sullivan, A.P. (2012). The law of workers’ compensation insurance in South Carolina sixth edition [p. 382]. Columbia, S.C.: South Carolina Bar Continuing Legal Education

[2] Beard at 382-383, 385-390; California Department of Industrial Relations (2016, April). Workers’ compensation in California: a guidebook for injured workers [6th edition]. Retrieved from http://www.dir.ca.gov/InjuredWorkerGuidebook/InjuredWorkerGuidebook.pdf

[3] Beard At 382-383.

[5] Id. At 97-2, p. 18; Beard at 385-386.

[6] Beard at 391.

[7] Id. at 386-391; NC Workers’ Comp Law, 97-2(5), p. 18.

[8] Beard at 392-393.

[9] CDIR at 21; New York State Workers’ Compensation Board (2014), An employee’s guide to workers’ compensation in New York state [p.6]. Retrieved from http://www.wcb.ny.gov/content/main/Workers/InjuredOnTheJob.pdf

[10] Beard at 392.

[12] Beard at 345-346.

[13] Id.

[14] N.C. Workers’ Comp. Law, Sect. 97-31(17), (23), pp. 284-285.

[15] Id. At Sect. 97-31(24), p. 285.

[16] Robinson, Thomas A., (Jul. 21, 2016). LexisNexis Legal Newsroom Workers’ Compensation Law: Latest Developments in State Handling of AMA Guides. Retrieved from https://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/archive/2016/07/21/latest-developments-in-state-handling-of-ama-guidelines.aspx?Redirected=true

[17] State of California Department of Industrial Relations Division of Workers’ Compensation (2016), Physician’s guide to medical practice in the California workers’ compensation system [4th edition, p. 56]. Retrieved from http://www.dir.ca.gov/dwc/medicalunit/toc.pdf ; See also Department of Labor, https://www.dol.gov/owcp/energy/regs/compliance/PolicyandProcedures/proceduremanualhtml/unifiedpm/Unifiedpm_part2/Chapter2-1300ImpairmentRatings.htm ; CA Physician’s Guide at 56.

[18] California Department of Human Resources (2016, July). Workers’ compensation preview [p.9-10]. Retrieved from https://www.calhr.ca.gov/Documents/workers-compensation-preview.pdf ; CA Physician’s Guide at 54-56; CDIR at 31.

[19] CA Physician’s Guide at 54-56; CDIR at 31.

[20] Beard at 333 (citing S.C. Code Sect. 42-1-120); N. C. Workers’ Comp Law, Sect. 92-2(9).

[21] CA Physician’s Guide at 56.

[22] Id.

[23] CDIR at 32.

[24] Id.