The term “Permanent Impairment” is a medical term meaning the permanent loss of or injury to the functioning of a particular body part or system. The permanent effects of an injury cannot be fully evaluated until an injured person reaches “maximum medical improvement” (“MMI”). At some point in treatment, doctors determine that a person’s condition has plateaued, the point at which additional health care will not cause significant improvement, they are then in a position to determine the extent of permanent impairment.
The “Bible” of Permanent Impairment: The AMA Guides
For many years the American Medical Association has published and periodically updated the AMA Guides to the Evaluation of Permanent Impairment (“AMA Guides”). This guide sets forth objective criteria for doctors to consider in evaluating a percentage “permanent impairment rating” to particular body parts or systems. Once a percentage loss is determined, based on the AMA Guides, this rating is often reflected in a written narrative report prepared by the treating physician for the injured party. This percentage rating is used to assist attorneys, insurance adjusters and workers compensation boards and juries in determining compensation due to the injured person.
Disability vs. Permanent Medical Impairment
Disability is a much more broad topic than medical impairment. While the extent of medical impairment reflects a percentage loss of use or function of a body part or system, the extent of a person’s disability includes medical impairment, but also takes into consideration a person’s educational background, occupational history, physical restrictions secondary to medical impairment and other factors. The percentage of disability from an injury is the ultimate question to be answered.
A 9th grade educated, 55 year old physical laborer will suffer greater disability from the same permanent impairment than a PhD college professor, because the laborer relies on his body to work; whereas the professor can suffer the injury and continue to think and speak to students and not have to rely on his body as much as the laborer, to function effectively at work.
What it means to be Permanently and Totally Disabled: State Workers Compensation vs. Social Security
In South Carolina, for purposes of being deemed “permanently and totally disabled” and receive statutory monetary benefits associated with that determination, a worker must establish that given the combination of his work history, educational level, injury and physical and/or mental restrictions, there is no reasonably stable market of jobs in the community available to him.
The Social Security Definition is similar, but has slight differences that are beyond the scope of this article. Essentially, the Social Security Administration will deem a person disabled if a person: (1) cannot do the work he did before; (2) cannot adjust to work in the future; and (3) the disability has lasted for more than one year or will result in death. (See the Social Security Administration web page describing disability, http://www.ssa.gov/planners/disability/dqualify4.html)
Vocational Evaluations Assist in Determining Whether a Person is Disabled
In some cases, disability is clear. The 9th grade educated day laborer in a wheelchair will never work again. However, the wheelchair bound college professor may continue to work. Often, it is helpful for the injured person to meet with a vocational expert to give the injured person some perspective on the opportunities that are available in the workplace, given the combination of factors affecting the person’s ability to acquire and maintain gainful, full-time employment.
In workers compensation cases, it is common for insurance companies to hire their own vocational experts to conduct “labor market surveys” in an attempt to suggest that there is a “reasonably stable market of jobs in the community for the injured person.” These labor market surveys are not complete vocational evaluations. The labor market surveyor rarely meets with the injured party, only submits a survey of jobs available, reviews records, maybe speaks briefly with the injured party, and predictably, when hired by insurance company attorneys, finds that there is work available. These surveys are countered by full blown vocational evaluations typically, if experienced legal counsel is involved in the workers compensation case.
Benefits for Permanent and Total Disability in South Carolina and Federal Social Security Disability
There are two main disability schemes in the United States, state and federal. Workers Compensation disability schemes are creatures of state statutes:
In South Carolina in 1935, industry and labor decided it would be best to minimize injury litigation between industry and workers and agreed on the South Carolina Workers Compensation Act. The Workers Compensation Act creates an exclusive remedy when a worker is injured “during the course and within the scope of employment.” The worker doesn’t have to prove the company was negligent; and the company cannot blame the worker for being negligent, with limited exceptions. The compromise is that the worker cannot receive the same damages that a person would receive in the context of, for example, an auto accident negligence case. There is no provision for the intangible damages such as pain and suffering, loss of enjoyment of life, or punitive damages. Workers Compensation benefits are spelled out in the Workers Compensation Act and the Regulations pertaining to the Act.
Federal Social Security Disability
When a person is deemed totally disabled under Social Security, the Social Security Administration provides weekly disability payments to the disabled person. Of course, there is no requirement of being injured on the job, like in the workers compensation system; and there is an offset system that reconciles the federal and state systems, which is a topic for another article discussing the “life expectancy proration rate,” an interesting concept that reconciles all of the systems.
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