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The Evaluation of Permanent Functional Impairment by External Service Providers
99/03/19-02
THE WORKERS' COMPENSATION BOARD OF BRITISH COLUMBIA
RESOLUTION OF THE PANEL OF ADMINISTRATORS
March 19, 1999
Re: The Evaluation of Permanent Functional Impairment by External Service Providers
WHEREAS:
Pursuant to Section 82 of the Workers Compensation Act, RSBC 1996, Chapter 492 and amendments thereto, the Panel of Administrators (Panel) must approve and superintend the policies and direction of the Workers' Compensation Board (Board) and must:
82(a)(ii) review and approve operating policies of the Board,
82(a)(iii) approve operating and capital budgets of the Board,
82(a)(v) approve major programs and expenditures;
AND WHEREAS:
By resolution dated October 13, 1998, the Panel approved the use of External Service Providers in the evaluation of permanent functional impairment;
AND WHEREAS:
The authority provided by the resolution continues until the Panel has approved required amendments to the Rehabilitation Services and Claims Manual;
THE PANEL OF ADMINISTRATORS RESOLVES THAT:
- The Rehabilitation Services and Claims Manual is amended as shown below.
- The amendments are effective on the date this resolution is signed.
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By the Workers' Compensation Board
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| DON COTT, CHAIR, PANEL OF ADMINISTRATORS |
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REHABILITATION SERVICES & CLAIMS MANUAL PROPOSED AMENDMENTS
[Deletions Struck Through, Additions in Bold Italics]
CHAPTER 6: PERMANENT DISABILITY AWARDS
#38.10 Decision-Making Procedure
The Disability Awards Officer or Adjudicator in Disability Awards is responsible for seeing that the necessary medical examinations and other investigations are carried out with respect to the physical impairment assessment and they make the decision on the degree of impairment disability and whether a pension should be awarded.
Permanent functional impairment evaluations will be conducted by either a Disability Awards Medical Advisor or a Board authorized External Service Provider. The Rehabilitation & Compensation Services Division sets protocols and procedures for these evaluations. The Board determines whether the evaluation is referred to a Disability Awards Medical Advisor or an External Service Provider based on the nature of the injury and other relevant criteria as set out in the protocols.
#39.01 Subjective Complaints
With regard to the question as to what type of evidence will be sufficient to justify a conclusion that a permanent disability exists in these cases, it is not possible to lay down an exclusive list. However, some suggestions can be made. There will, in the first place, be the claimant's own evidence regarding the nature and extent of the complaints and whether that evidence is credible and consistent. Regard must also be had to the claimant's conduct and activities and whether they are consistent with the complaints. There will then be the evaluations of the claimant by the various professional personnel and Board's staff who have been involved in the case, for example, doctors, psychologists, and rehabilitation consultants, and assessors in the Board's Industrial Department. Consideration will have to be given to the objective observations of these persons as well as their subjective assessments. They may be able to comment on whether the claimant's complaints are of a type and extent that might reasonably result from the type of injury which was suffered.
…Sometimes cases occur where, although the worker has subjective complaints of pain and discomfort, the actual impairment which can be objectively seen reported by the Disability Awards Medical Advisor or External Service Provider is negligible or too minimal to justify an award of the lowest percentage of disability ordinarily recognized. Where there is appropriate medical rationale to support the subjective complaints, the Disability Awards Officer or Adjudicator still has some discretion to make an award, having regard to the worker's particular circumstances, and may do so where, for instance, the Disability Awards Medical Advisor is of the opinion there is evidence that the stress of the claimant's occupation or other physical activity could result in an impairment. The Disability Awards Officer or Adjudicator will not grant an award if she or he considers that the impairment is unlikely to affect the claimant's earning capacity. There is, in that situation, felt to be no "impairment of earning capacity" within the meaning of Section 23(1).
#39.10 Scheduled Awards Permanent Disability Evaluation Schedule
…In cases where the specific impairment is not covered by the schedule, but the part of the body in question is covered, the Disability Awards Officer or Adjudicator must first determine the percentage loss of function in the damaged area. This determination is based on the findings of the Disability Awards Medical Advisor permanent functional impairment evaluation and other medical and non-medical evidence available. The final award is arrived at by taking this percentage of the percentage allocated in the schedule to the disabled part of the body. Because the schedule is used in the calculation, this type of award is still considered as a scheduled one. For example, the amputation of an arm down to the proximal third of the humerus or its disarticulation at the shoulder is scheduled at 70% of total disability. Suppose a worker suffers a severe crush injury to the arm which culminates in a permanent loss of half its function. The final assessment would be 50% of 70%, i.e. 35% of total disability.
#39.30 Restrictions of Movement in Arms or Legs
Restrictions of movement in the joints of the body are measured and documented by the Disability Awards Medical Advisor during the permanent functional impairment evaluation. The Disability Awards Officer or Adjudicator in Disability Awards then applies the measurement to the appropriate item in the Permanent Disability Evaluation Schedule.
#39.50 Non-Scheduled Awards
…In the case of non-scheduled awards, the Disability Awards Medical Advisor and the Disability Awards Officer or Adjudicator in Disability Awards use their own judgement to arrive at a percentage of disability appropriate to the particular claimant's impairment. Regard will be had to, inter alia, the permanent functional impairment evaluation, the circumstances of the claimant, medical opinions of Board or non-Board doctors, and to schedules of disability used in other jurisdictions.
#41.10 Commencement of Pension
…A problem of pension retroactivity also occurs when, although the worker had a temporary partial disability, the worker had or could have returned to full employment and has not, therefore, actually been paid any benefits under Section 30. As previously stated, the Act requires that the Board recognize a disability as either temporary or permanent, but not both concurrently. When carrying out the final disability assessment examination, the Officer in Disability Awards Medical Advisor will have the benefit of the earlier examination, or at least some other documentary evidence on file, on which the decision was made to delay the pension. If the findings on the latter examination are the same as the initial findings, or only show a minimal degree of change, it is reasonable to consider the condition as having plateaued from the date of the first examination. In that event, the date of the first examination should be the starting date of the pension. If, on the other hand, the latest examination shows a measurable and significant change since the first examination, the worker will be considered as having been, in the interim, temporarily disabled. In that event, the date of the last examination will be the starting date of the pension.
When there was no examination by either a Board Medical Advisor or an External Service Provider when wage-loss benefits were terminated under Section 30, and there is no other measurable data on file with which to make a comparison with the final assessment of the Officer in Disability Awards Medical Advisor, the pension will be backdated to the date benefits were terminated under Section 30.
#41.11 Commencement Following Medical Review Panel Certificate
…There may be another case where it is agreed by all concerned that the degree of disability has not changed, and yet the Medical Review Panel has concluded that the worker is suffering from a disability more extensive than that which the Disability Awards Medical Advisor or External Service Provider found. In that case too, the pension adjustment must be retroactive.
CHAPTER 12: CLAIMS PROCEDURES
#96.30 Disability Awards Officers and Adjudicators in Disability Awards
…In cases of minor disabilities, the Disability Awards Officer or Adjudicator in Disability Awards may calculate the award without the benefit of a medical examination if this is considered unnecessary having regard to the medical evidence already on file. Except for those cases, the normal practice is for a permanent functional impairment evaluation the medical examination to be conducted for disability awards purposes by a Disability Awards Medical Advisor or an authorized External Service Provider (see item #38.10).
Although the evaluation the opinion of the Disability Awards Medical Advisor is not the only input of medical opinion evidence that the Disability Awards Officer or Adjudicator in Disability Awards may use, it will usually be the primary input.
…However, in those cases where the worker has a permanent functional impairment evaluation is examined by a Disability Awards Medical Advisor, the Disability Awards Officer or Adjudicator in Disability Awards is required to notify the worker indicating the results of the evaluation examination and the conclusions reached regarding the question of pension entitlement.
The final decision on the assessment of a pension on a projected loss of earnings basis is made by the Disability Awards Committee which consists of one senior representative from the Disability Awards, Medical, and Vocational Rehabilitation Services Departments.
#97.40 Disability Awards
In cases of very minor disabilities, Disability Awards Officers or Adjudicators in Disability Awards may proceed to calculate a disability award without a further medical examination permanent functional impairment evaluation, if they consider that this is unnecessary having regard to the medical evidence already available. Except for those cases, the normal practice is for a permanent functional impairment evaluation medical examination to be conducted for disability awards purposes by a Disability Awards Medical Advisor or an External Service Provider.
It is the responsibility of the Disability Awards Officer or Adjudicator to classify the disability as a percentage of total disability. In doing this, it is proper for the Disability Awards Officer or Adjudicator to consider other factual and medical evidence as well as the report of the Disability Awards Medical Advisor or the External Service Provider. However, although the report opinion of the Disability Awards Medical Advisor or the External Service Provider is not the only medical input of medical opinion that a Disability Awards Officer or Adjudicator may use, it will usually be the primary input, and caution will be used in referring to any other medical opinion.
The report recommendation of a Disability Awards Medical Advisor or External Service Provider takes the form of expert evidence which, in the absence of other expert evidence to the contrary, should not be disregarded. This does not mean that a Disability Awards Officer or Adjudicator must adopt the percentage of "disability" as indicated by the Disability Awards Medical Advisor or External Service Provider. It is always open to the Disability Awards Officer or Adjudicator to conclude that, although the functional impairment of the claimant is a certain percentage, the disability (i.e. the extent to which that impairment affects the claimant's ability to earn a living) is greater or less than the percentage of impairment.
Therefore, if, for example, a Disability Awards Medical Advisor finds that a claimant has a functional impairment for which an award of 2.5% of total is recommended, it would be entirely proper for the Disability Awards Officer or Adjudicator to conclude that, although the functional impairment was 2.5%, it had no effect on earning capacity. It would not, however, be proper to conclude that there was no functional impairment to the extent of 2.5%. The expertise exercised by a Disability Awards Medical Advisor can and should only be displaced by evidence provided by another expert in that field, i.e. another Disability Awards Medical Advisor.
#99.24 Notification of Pension Awards
When a permanent disability award is granted, the letter advising of the award will include the permanent functional impairment evaluation report medical conclusion on which the award has been based. It will also contain the percentage rate of disability assessed. Where the case is one of Proportionate Entitlement, the letter will state the nature and extent of the pre-existing disability and the nature and extent of the further disability. A copy of the letter is sent to the employer. This letter will include the standard notification regarding the right of appeal.