Impairment Rating (I07)

IR means the percentage of permanent impairment of the whole body resulting from a compensable injury. Section 401.011(24); Section 130.1(c)(1) . Impairment means any anatomic or functional abnormality or loss existing after MMI that results from a compensable injury and is reasonably presumed to be permanent. Section 401.011(23). The doctor evaluating permanent impairment must consider the entire compensable injury. APD 043168. If the doctor evaluating impairment determines there is no permanent impairment from the compensable injury a zero percent IR or no impairment is assigned. APD 991083; Section 130.1(c)(1). The doctor assigning the IR shall provide a description and explanation of specific clinical findings related to each impairment, including 0% ratings. Section 130.1(c)(3)(D)(i).

IIBs are based on the IW's IR. Section 408.121(b) . IIBs begin on the day after the IW reaches MMI and end on the earlier of: a period computed at the rate of three weeks for each percentage point of impairment; or the IW's death. Section 408.121(a). IIBs are paid at 70% of the IW's AWW, subject to Sections 408.061 and 408.062 relating to maximum and minimum weekly income benefits. Section 408.126. [Cross reference: Amount of AWW (W01)]. An IW may not recover IIBs unless evidence of impairment based on an objective clinical or laboratory finding exists. Section 408.122.

IIBs may be reduced for contribution under Section 408.084. [Cross-reference: Reduction/Suspension of IIBs or SIBs for Contribution from Prior Compensable Injury (I15)].

MMI must be certified before an IR is assigned. Section 408.123(a); 130.1(b)(2). [Cross-reference: Date of MMI (I06)]. Only permanent impairment may be rated. APD 030091-s. The Guides 4th Ed. p. 3/94 describe a permanent impairment as one that is "stable, unlikely to change within the next year, and not amenable to further medical or surgical therapy." An IR's assignment shall be based on the IW's condition as of the MMI date, considering the medical record and the certifying examination. Section 130.1(c)(3); APD 040313-s; APD 040998-s. A doctor who certifies that an IW has reached MMI shall assign an IR for the current compensable injury using the rating criteria contained in the appropriate edition of the Guides. Section 408.124; Section 130.1(c)(2).

Appropriate AMA Guides Edition.

Section 130.1(c)(2) discusses the appropriate Guides edition to use in determining the IR for a compensable injury. The appropriate edition to use for certifying examinations conducted on or after October 15, 2001, is the Guides 4th Ed. Section 130.1(c)(2)(B)(i). However, the Guides 3rd Ed. is the appropriate edition to use if at the time of the certifying examination there is a certification of MMI by a doctor made prior to October 15, 2001, which has not been previously withdrawn through agreement of the parties or previously overturned by a final decision. Section 130.1(c)(2)(B)(ii); APD 061227.

The Guides 4th Ed.

Adjustments for Effects of Treatment or Lack of Treatment.

The DD assigned 1% impairment for "lack of treatment" referencing page 2/9 of the Guides 4th Ed. based upon his belief that the IW did not receive as much physical therapy as called for by the ODG. The HO adopted the DD's rating, which included the 1% impairment for "lack of treatment." The AP reversed the HO's IR determination and remanded the case back to the HO. The AP determined that the Guides 4th Ed. do not consider whether an IW has undergone the requisite number of physical therapy session in assessing additional impairment under the section the DD relied upon. The AP therefore held that the Guides 4th Ed. do not allow for assessment of additional impairment under the facts of this case. APD 090692-s.

Advisories 2003-10 and 2003-10B.

The issue at the CCH was the IW's IR. The IW sustained a compensable back and neck injury. The IW had a multi-level cervical fusion prior to the date of MMI. The DD certified that the IW reached MMI with a 10% IR, assessing 5% impairment for the neck injury under DRE Cervicothoracic Category II and 5% impairment for the back injury under DRE Lumbosacral Category II. In response to a LOC the DD changed the IR to 25% placing the IW in DRE Cervicothoracic Category IV based on Division Advisory 2003-10. The HO determined that the IW's IR is 25% and the IC appealed. The AP reversed the HO's decision and rendered a decision that the IW's IR is 10%. Division Advisories 2003-10 and 2003-10B were declared invalid and their application an ultra vires act in Texas Dep't of Ins. v. Lumbermens Mutual Cas. Co., 212 S.W.3d 870 (Tex. App.-Austin 2006, pet. denied). The Texas Supreme Court denied the petition for review in the Lumbermens case on June 15, 2007. Therefore, the adoption of an IR that is based on the Advisories is legal error and must be reversed. Prior APDs applying the Advisories to rate impairment for spinal fusion have been overruled by the Lumbermens case. APD 071023-s.

Commissioner's Bulletin #B-0033-07 dated July 18, 2007, withdrew Advisories 2003-10 and 2003-10B.

Conflict Between General Directions and Figures.

Where a conflict exists between the general directions and the figures in the Guides, the general directions control. In this case the IW had a wrist injury and the DD rated radial and ulnar deviation relying on Figure 29, which rates impairment based on 5 degree increments. However, the general directions for rating radial and ulnar deviation provide that the measurements be rounded to the nearest 10 degrees. Because the general directions control, the measurements for radial and ulnar deviation should be rounded to the nearest 10 degrees, not 5 degrees as provided in Figure 29. APD 022504-s.

General Directions Point Elsewhere for Further Clarification.

The HO's determination of the IW's IR was based solely on the fact that the atrophy found was not greater than 2 centimeters but rather 2 centimeters exactly. In reversing and remanding the HO's determination, the AP noted that although the general directions control when a conflict exists between the general directions and the figures in the Guides 4th Ed., in the instant case the general directions for rating lumbosacral radiculopathy on page 3/102 of the Guides 4th Ed. specifically refer to differentiator 3 in Table 71 on page 3/109 of the Guides 4th Ed., which gives a further description of "Decreased circumference, atrophy." Differentiator 3 clarifies that for atrophy to be a significant sign of radiculopathy, for which the IW is entitled to receive a rating, the atrophy must be spine-injury-related and the measurements show loss of girth of 2 centimeters or more above or below the knee. The AP clarified that to receive a rating for radiculopathy the IW must have significant signs of radiculopathy, such as loss of relevant reflex(es), or measured unilateral atrophy of 2 centimeters or more above or below the knee, compared to measurements on the contralateral side at the same location, and the atrophy or loss of relevant reflexes must be spine-injury-related. APD 072220-s.

Guarding as a Differentiator.

Table 71, page 109 of the Guides 4th Ed. states "[p]aravertebral muscle guarding or spasm or nonuniform loss of [ ROM], dysmetria, is present or has been documented by a physician." [Emphasis added]. Because the word "or" is placed between guarding, spasm, and nonuniform loss of ROM, those terms are read as being separate from each other, and the Guarding portion of Table 71 is interpreted as saying guarding can be used as a differentiator if guarding or spasm or nonuniform loss of ROM is present or has been documented by a physician, not that all three items of guarding, spasm, and nonuniform loss of ROM must be present or documented by a physician before it can be used as a differentiator. APD 080966-s.

Hernia.

To assess an impairment for a hernia-related injury under Table 7 "Classes of Hernia-related Impairment", page 10/247 of the Guides 4th Ed., there must be a palpable defect in the supporting structures of the abdominal wall. APD 072253-s.

Lower Extremity Impairment.

The IW sustained a compensable supracondylar fracture of the left knee. The DD measured 48 degrees of angulation and used a DRE under Table 64 of the Guides 4th Ed. and assessed a 28% IR for a displaced supracondylar fracture. The DD was advised in a LOC that an angulation over 20 degrees for a supracondylar displaced fracture results in a maximum whole person IR of 20%; however, the DD did not change his IR of 28%. The RME doctor and another doctor measured 3 degrees of angulation and the RME doctor assessed an 8% IR under Table 41 using the ROMM. The HO determined that the IW's IR was 20%. The AP reversed the HO, finding that the HO erred in determining that the IW's IR is 20% because no doctor had certified a 20% IR, and rendered a decision that the IW's IR is 8% as certified by the RME doctor. The AP also held that the DD erred in determining the IW's 28% IR, because the plain language of the Guides 4th Ed. indicates that between 5 to 9 degrees of angulation results in 5% whole person impairment; between 10 to 19 degrees of angulation results in 10% whole person impairment; and 20 degrees or more of angulation results in 10% whole person impairment plus 1% whole person impairment for each degree of angulation up to 20% maximum whole person impairment. APD 061479-s.

Mental Impairment.

Mental and behavioral disorders may be rated for impairment under the Guides 4th Ed. Although Chapter 14 does not provide impairment percentages in the Table entitled "Classifications of Impairments Due to Mental and Behavioral Disorders", the certifying doctor may consider Chapter 4 relating to the Nervous System to calculate the impairment percentage for mental and behavioral disorders from Chapter 14. Chapter 4 at page 142, first column, provides that the criteria for evaluating the emotional and behavioral impairments in Table 3 of Chapter 4 relate to the criteria for mental and behavioral impairments in Chapter 14. APD 051277. An IR for a mental or behavioral disorder must be supported by objective clinical or laboratory findings. APD 961699. The mental or behavioral disorder must be permanent to be rated for impairment. APD 030622.

Skin Impairment.

Impairment for a skin disorder under Chapter 13 may be combined with impairment for loss of ROM under Chapter 3 using the CVC to determine total impairment. APD 031168.

Impairment for a skin disorder under Chapter 13 may be combined with peripheral nerve impairment under Chapter 4 using the CVC to determine total impairment. APD 071599-s.

Spine Impairment.

The evaluator assessing the IW's spine for assigning an IR should use the Injury Model, which is also called the DRE Model. The conditions within the DRE categories are listed in Table 70 on page 108 of the Guides 4th Ed. Under the Guides 4th Ed., if a doctor determines that an IW meets the criteria to be placed in a particular DRE category, the doctor is to assign the IR set out in the Guides for that particular DRE category. APD 032336-s.

In the event the evaluating doctor must choose between two or more DRE categories that may apply, the ROMM may be used in conjunction with the DRE Model as a "differentiator" to make that choice. APD 022509-s. The evaluating doctor may not merely choose a rating between DRE categories. APD 032336-s.

If none of the categories of the DRE Model are applicable the evaluating doctor may use the ROMM for assigning the IR. The doctor's report must have a specific explanation why the DRE Model could not be used. APD 030288-s. A comment that the evaluator merely prefers "to use the Model that he or she feels is most appropriate" is insufficient justification for using the ROMM rather than the DRE Model." APD 030288-s.

The significant clinical signs of radiculopathy may be verified by electrodiagnostic testing; however, electrodiagnostic testing indicating radiculopathy is insufficient by itself to assign impairment for radiculopathy in the absence of significant signs of radiculopathy (loss of relevant reflexes or unilateral atrophy). APD 051456.

In using the DRE Model, the doctor should select the region primarily involved and rate that region. If the injury is primarily to the cervical spine the rating would be for cervicothoracic spine impairment; if the injury was primarily to the thoracic spine the rating would be for thoracolumbar spine impairment; and if the injury is primarily to the lumbar spine the rating would be for lumbosacral spine impairment. If more than one spine region is impaired, the doctor determines the impairment of the other regions and combines the regional impairments using the CVC to express the total spine impairment. Guides 4th Ed. p. 95 and 101; APD 051306-s.

Table 71, Guides 4th Ed., p. 109, lists DRE Impairment Category Differentiators. The Guarding portion of Table 71 states "muscle guarding or spasm or nonuniform loss of ROM." (Emphasis added) By placing the word "or" between guarding, spasm and nonuniform loss of ROM, those terms are in the disjunctive. The AP held that guarding can be used as a differentiator if guarding or spasm or nonuniform loss of ROM is present or has been documented by a physician, not that all three items of guarding, spasm and nonuniform loss of ROM must be present or documented by a physician before it can be used as a differentiator. Further, normal ROM does not preclude awarding a 5% IR for guarding under DRE Cervicothoracic Category II: Minor Impairment under the Guides 4th Ed. APD 080966-s.

Syncope.

Syncope is rated for impairment under Table 22 entitled "Impairments Related to Syncope or Transient Loss of Awareness" on page 4/152 of the Guides 4th Ed., and not under Table 5 on page 4/143. APD 042912-s.

Upper Extremity Impairment.

It is undisputed by the parties that the IW underwent a distal clavicle resection arthroplasty for the compensable injury. Dr. E, the prior DD assigned 4% impairment based on loss of range of motion (ROM) of the IW’s left shoulder. Dr. E explained he did not assign an impairment under Table 27 on page 3/61 of the AMA Guides for the IW’s distal clavicle resection arthroplasty because of guidance from the Division to consider the final result of the IW in determining whether to assign impairment for the distal clavicle resection arthroplasty. The HO stated that because Dr. E did not give a rating for the distal clavicle resection arthroplasty, the IW was sent to a new DD to address the IW’s IR. The HO adopted the new DD’s certification who assessed 6% UE impairment for loss of ROM of the IW’s left shoulder, and 10% UE impairment for the distal clavicle resection arthroplasty under Table 27 of the AMA Guides, for a combined UE impairment of 15%, which converts to 9% whole person impairment. In affirming the HO’s determination, the AP noted that Table 27, Impairment of the UE After Arthroplasty of Specific Bones or Joints, falls under Section 3.1m. When considering the language on page 3/58 in isolation it would appear that a distal clavicle resection arthroplasty would receive a 10% UE rating under Table 27 only if the other criteria provided in the AMA Guides have not adequately rated the impairment. However, the AMA Guides also provide on page 3/62 the following specifically regarding arthroplasty of a joint:

In the presence of decreased motion, motion impairments are derived separately (Sections 3.1f through 3.1j) and combined with arthroplasty impairments using the Combined Values Chart (p. 322).

The AP concluded that the language on page 3/62 clearly provides that impairment for arthroplasty procedures is to be derived by combining loss of ROM, if any, with arthroplasty impairment under Table 27.

The language contained on page 3/58 is ambiguous, whereas the language on page 3/62 provides more clear instruction regarding the rating of arthroplasty procedures. Therefore, the AP held that impairment for a distal clavicle resection arthroplasty that was received as treatment for the compensable injury results in 10% UE impairment under Table 27, which is then combined with ROM impairment, if any, as provided by the AMA Guides. APD 151158-s.

Upper extremity impairments for a limb are combined using the CVC to determine the total upper extremity impairment and then the total upper extremity impairment is converted to a whole person impairment. APD 061569-s. (Please note that if both upper extremities are involved, derive the whole person impairment percent for each and then combine both values using the CVC. See Guides 4th Ed. page 66.)

RSD/CRPS.

Impairment secondary to causalgia and RSD is derived as set forth on page 3/56 of the Guides 4th Ed. entitled "Causalgia and RSD", not from Table 17 "Impairment of Upper Extremity Due to Peripheral Vascular Disease" on page 57 of the Guides 4th Ed. APD 052243-s.

Certifying Doctor.

Only an authorized doctor may determine whether an IW has permanent impairment, and assign an IR if there is permanent impairment. Section 130.1(a). Authorized doctors are described in Section 130.1(a). It should be noted that a DD's report has presumptive weight and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary. If the preponderance of the medical evidence contradicts the IR contained in the report of the DD chosen by the Division, the Division shall adopt the IR of one of the other doctors. Section 408.125(c); APD 071599-s. In APD 170041, the HO failed to specify which of the three separate certifications of MMI and IR by three separate doctors she was adopting as required by Section 408.125(c) which states that the Division shall adopt the IR of one of the other doctor. The AP reversed the HO's determination and remanded the case back to the HO to determine which doctor’s certification she was adopting.

Disputing the IR.

[Cross-references: Dispute of DD IR (I11); IR Finality/90-Day Disputes (I12)]

Mistakes in Calculating the IR.

The AP has held that a HO may apply a mathematical correction to a certification of IR when doing so merely corrects an obvious mathematical error and does not involve the exercise of judgment as to what the proper figures were. APD 040863. A clerical error made by the doctor in using the CVC of the Guides may also be corrected. APD 041424; Old Republic Ins. Co. v. Rodriguez, 966 S.W.2d 208 (Tex. App.-El Paso 1998, no pet.). A HO may not piecemeal doctors' reports to assemble an IR. APD 050729-s.