Fourth Quarter 2017
By: Paul Berard and Josh Stegeman
Question: Under Missouri law, can an impairment rating be submitted into evidence and how effective are the ratings in mitigating permanency exposure?
Short Answer: Missouri Workers’ Compensation Statutes do not have a provision for impairment ratings. However, there are “ratings” that are given by physicians that can be introduced into evidence to address permanency, and thereby in some instances mitigate permanency exposure.
Discussion: In Missouri, impairment ratings are not required to be derived from published medical literature or guides, but a physician may rely upon these to formulate a rating. The ratings supplied by the physician may be introduced at a hearing to address the amount of permanency to which an Employee is entitled. Instead, Employers and Employees request a “rating” from a physician when an Employee has reached maximum medical improvement. The ratings are a physician’s opinions as to what the permanent disability is for the injured part of the body. The rating can be for either 1) permanent total disability (PTD), which means the physician does not believe the claimant will be able to return to any employment in the open labor market based on the Employee’s disability, or 2) permanent partial disability (PPD), which means the Employee has permanent physical complaints, impairments, or restrictions, that result in a disability that.
A physician’s opinion as to PTD or PPD is based upon several factors including: 1) his or her experience with people who have had similar injuries and treatment, 2) the type of injury and treatment received, 3) the extent of the disabilities affecting the Employee’s injured body part and its use, and 4) possibly a calculation of disability based on a guide or medical literature regarding that type of injury. However, the statutes do not require the physician to be bound by any constraints upon which the rating must be based.
The “rating” is one physician’s opinion and another physician may agree or disagree with that opinion. A physician’s rating is not binding on anyone. Typically, the Employee’s rating physician and Employer’s rating physician will have very vastly different opinions on the amount of PPD as a result of a work injury. In this case, a judge is more likely to award PPD somewhere between the two ratings, but it is not always splitting the difference between the two ratings. In other words, if the Employer’s physician gives a 0% rating, and the Employee’s physician gives a 50% rating, the judge will not necessarily award 25% of the body part. Rather, the judge is likely to examine the type of injury, treatment received, and resulting disability, as well as the credibility and reliability of each rating physician.
A treating physician’s rating is not necessarily given more deference than an independent physician’s rating. A rating does not take into consideration “pain and suffering,” as this is not included in Missouri workers’ compensation claims.
Missouri recently enacted SB 66 affecting workers’ compensation ratings on August 28, 2017. The change requires all Employees (pro se included) to obtain a rating from a physician of his or her own choosing within 12 months of reaching MMI and receiving a rating from the Employer’s physician. If the Employee has not obtained a second rating within 12 months, any settlement will be based on the Employer’s physician’s rating unless there are extenuating circumstances. The Employer has the right to waive this requirement with or without cause.
Practice Tip: In Missouri, the Employer has the right to choose the treating physician and the rating normally should come from the treating physician. Therefore, it is important for Employers choose physicians who are familiar with workers’ compensation claims and providing ratings. Otherwise, the Employer can resort to obtain a separate rating and evaluation, but this usually costs additional money, and could be construed as doctor shopping. There is no requirement that an Employer submit a rating as part of a settlement or trial. However, if the case should proceed to trial, the best practice for an Employer is to always have a rating upon which the judge may rely to formulate an award regarding PPD.
Additionally, the employer should also be careful in requesting a rating immediately after an Employee reaches MMI from the treating physician. There are some minor injury claims that do not necessitate a rating to assess valuation. Furthermore, if the treating doctor is not familiar with workers’ compensation ratings in Missouri, it could result in an excessively high rating. Once this rating is obtained from the Employer’s physician, it generally sets the minimum value of what the claim is worth. Also, in minor injury claims, a rating’s cost may eclipse any expected savings from obtaining a rating, so that is a consideration for an Employer prior to requesting one.
Finally, the recent 2017 amendments to the ratings are likely to cause more confusion and litigation than mitigating exposure for the Employer. Therefore, the Employer should not expect that if it obtains a rating immediately, and the Employee fails to obtain a rating within 12 months of that time, that the rating obtained by the Employer will actually be the rating awarded as part of a settlement or award at trial. The best practice is to continue to consult counsel to assess whether a rating should be obtained for the injury based on its degree of severity, and if a rating should be obtained, whether it should be obtained from the treating physician or another IME physician.