77 O.W.C. 92 (1998). I talked about what MMI means in this context, and why the statute requires permanency in the last post. Today, I would like to take a closer look at this element of the PPD claim which is key to the process, specifically, the “rating” of the degree of permanency and functional loss of use of the member.
As noted previously, to award PPD to the claimant, functional capacity is required to be quantified or rated.
Although everyone who participates in the award of benefits for PPD refers to the physician’s process of developing a “rating” by that term, the only “rating” that counts for anything is that delivered by the Commission. The benefits provided for by 65.2-503 are awardable upon a rating by the Commission of the percentage of incapacity which the claimant has suffered. This rating determines the ultimate amount of compensation which the claimant is entitled to recover.
76 O.W.C. 196 (1997).
The physician’s rating is medical evidence like so much other evidence which the Commission hears, and like all other medical evidence, it is subject to weighing. As with other medical issues, the Commission generally give greater weight to the opinions of the treating physician on the basis that the treating physician is more familiar with the claimant’s injury, long-term treatment, and current condition, especially where there is a wide discrepancy between the treater’s rating and that given by a physician hired by the Employer for the sole purpose of expressing an opinion. However, where the estimates of permanent partial disability are in close proximity, the Commission will often average the ratings and award the average.
75 O.W.C. 203 (1996).
There is one issue surrounding a physician’s rating which periodically arises which is surprising in that the Commission has consistently responded to the issue in the same fashion and has not given any sign of wavering in that circumstance. The issue that will not go away is whether a physician must base his rating on a recognized standard manual such as the AMA Guidelines. Although the Commission has observed such dependence on recognized medical treatises with approval at times, see
75 O.WC. 68 (1996).
That completes my foray into the world of permanency ratings, and the intrigue and drama which often surrounds them. I’m not sure where the blog and I are headed for the time being, but we will keep an eye open for interesting material both from the legal world of workers’ comp, and from the wider world out there. I hope you will rejoin us at that time.