Impairment Benefits

Below are the head notes for the FAB decisions and orders relating to the topic heading, Impairment Benefits. The head notes are grouped under the following subheadings: Apportionment, Assessing impairment evaluations at FAB, Impairment evaluations, In general, and Filing for increase in impairment. To view a particular decision or order in its entirety, click on the hyperlink for that decision or order at the end of the head note.

Apportionment

• Where the claimant settled a state workers’ compensation claim based on his CBD and FAB subsequently accepted his EEOICPA claims for that same covered illness and for consequential illnesses causally related to that covered illness, it was not necessary to apportion the claimant’s impairment award between his CBD and his consequential illnesses.  EEOICPA Fin. Dec. No. 20230602-58887-5 (Dep’t of Labor, August 15, 2023).
• The regulations provide that when an employee’s impairment rating is comprised of multiple impairments and at least one of those impairments is subject to offset and/or coordination, a potential Part E impairment award must be reduced proportionately.  EEOICPA Fin. Dec. No. 20221201-48314-5 (Dep’t of Labor, December 13, 2022).
• While the employee was entitled to $2,500.00 for every percentage point of his 87% whole-person impairment rating, his impairment award had to be apportioned and proportionately reduced because one of his four impairments was subject to both offset and coordination, while the other three were not.  EEOICPA Fin. Dec. No. 20221201-48314-5 (Dep’t of Labor, December 13, 2022).

Assessing impairment evaluations at FAB

• Impairment evaluations must be performed by a physician who meets DEEOIC’s criteria and must be in accordance with the AMA’s Guides. In this case, FAB assigned more probative weight to an impairment evaluation that satisfied those two requirements than they assigned to the claimant’s testimony and other evidence that did not satisfy those requirements. EEOICPA Fin. Dec. No. 10005910-2006 (Dep’t of Labor, July 31, 2007).
• The district office recommended an award for a 26% whole-body impairment, based on a DMC’s report that considered the employee’s pulmonary function testing only. The claimant objected to the recommended decision and presented his own medical evaluations that found a 35% whole-body impairment based on the same pulmonary function testing, as well as the employee’s need for oxygen and the fact that his lung conditions affected his activities of daily living. FAB found that the new medical evidence submitted by the claimant was of greater probative value than the DMC’s report, and awarded the claimant an impairment award under Part E based on the higher rating of 35%. EEOICPA Fin. Dec. No. 10006507-2006 (Dep’t of Labor, November 25, 2009).
• In assessing the probative value of an impairment evaluation, FAB considers several factors, including whether the rating physician possesses the requisite skills and requirements to provide a rating, whether the evaluation was conducted within one year of its receipt by DEEOIC, whether the evaluation addresses the covered illnesses, and whether the percentage of whole body impairment is listed with a clearly rationalized medical opinion as to its relationship to the covered illnesses. EEOICPA Fin. Dec. No. 10010178-2007 (Dep’t of Labor, March 25, 2008); EEOICPA Fin. Dec. No. 10033309-2006 (Dep’t of Labor, November 9, 2007).
• The district office recommended an award of $47,500.00 in impairment benefits based on a DMC’s report. However, following a hearing at which the employee objected to the recommended decision and introduced his physician’s impairment evaluation, FAB awarded $167,500.00 in impairment benefits when it found that the employee’s physician’s impairment evaluation was of greater probative value than the DMC’s report. EEOICPA Fin. Dec. No. 10010178-2007 (Dep’t of Labor, March 25, 2008).
• FAB found that DMC’s written impairment evaluation and 21% rating had more probative value than claimant’s written objection and letters from friends that argued that claimant could only do 30% of what he should be able to do. EEOICPA Fin. Dec. No. 10017018-2006 (Dep’t of Labor, July 18, 2007).
• The district office had received a report from a contract medical consultant who opined that the employee had a 0% impairment due to his accepted covered illness of chronic obstructive pulmonary disease (COPD). FAB noted that the regulations contemplate that a successful challenge to an impairment rating before FAB will be based on an additional impairment evaluation submitted by the claimant which is of greater probative value than the evaluation relied upon by the district office. Because the claimant did not submit an additional impairment evaluation to FAB that differed from the evaluation relied upon by the district office, the only issue before FAB was whether the impairment evaluation of 0% for the employee’s COPD was correct. EEOICPA Fin. Dec. No. 20160211-20001255-5 (Dep’t of Labor, June 16, 2016).

Filing for increase in impairment

• Employee must wait at least two years after he receives an impairment award to file a request for increased impairment benefits, unless the request is based on a new covered illness. In this case, after FAB awarded impairment benefits for lung cancer on August 31, 2007, employee filed for increased impairment benefits based on new covered illness of asbestosis on February 5, 2008. FAB awarded the increased impairment benefits on April 7, 2008. EEOICPA Fin. Dec. No. 10013332-2007 (Dep’t of Labor, April 7, 2008).
• When calculating the amount of an award for increased impairment benefits, the FAB only awards an amount representing the increase in whole body impairment. In this case, FAB awarded $25,000 for 10% whole-body impairment for lung cancer in 2007. In 2008, FAB awarded an additional $67,500 for a 27% increased impairment based when the combined whole-body impairment for the lung cancer and the employee’s asbestosis was 37%. EEOICPA Fin. Dec. No. 10013332-2007 (Dep’t of Labor, April 7, 2008).
• FAB denied employee’s request for increased impairment benefits because the medical evidence established that he did not have an increase in impairment even though he had been diagnosed with an additional skin cancer. EEOICPA Fin. Dec. No. 20140122-69339-1 (Dep’t of Labor, April 7, 2014).

Impairment evaluations

• There is a very clear condition precedent to the awarding of impairment benefits under Part E of EEOICPA in 20 C.F.R. § 30.900(b), namely, the existence of medical evidence which establishes that the employee has an identifiable and ratable impairment of either an organ or body function “that is the result of the covered illness.” It is only after such medical evidence of impairment due to a covered illness has been obtained that any consideration can be given to possible additional impairment to the same organ or body function due to something other than a covered illness. In the course of evaluating the employee’s claim for impairment due to COPD, a contract medical consultant opined that the employee had 0% impairment due to COPD and 22% impairment due to asthma, a non-accepted illness. Under these circumstances, FAB denied the claim for impairment benefits. EEOICPA Fin. Dec. No. 20160211-20001255-5 (Dep’t of Labor, June 16, 2016).

In general

• Employee made a claim for permanent impairment based on CBD, bladder cancer and throat cancer. Since he had more than one covered illness, the physician determined the percentage of whole person impairment for each covered illness, and used the combined values chart in the AMA’s Guides to the Evaluation of Permanent Impairment to assign a combined rating of 94% impairment of the whole person based on all three covered illnesses. EEOICPA Fin. Dec. No. 24496-2003 (Dep’t of Labor, March 14, 2006).
• Covered Part E employee was determined to have a minimum impairment rating of 50% due to asbestosis and was awarded $2,500 for each of the 50 percentage points for a total Part E impairment award of $125,000. EEOICPA Fin. Dec. No. 10001639-2005 (Dep’t of Labor, October 21, 2005).
• Employee was found to have a Class 2 lung impairment, which has a variable range of from 10% to 25% impairment of the whole person. Given his physical findings, current treatment and severely compromised activities of daily living, employee’s minimum impairment rating was determined to be 25%. EEOICPA Fin. Dec. No. 10001749-2005 (Dep’t of Labor, December 14, 2005).
• A consequential condition of a covered illness must have reached maximum medical improvement before it can be included in the impairment rating with the covered illness. EEOICPA Fin. Dec. No. 10005910-2006 (Dep’t of Labor, July 31, 2007).
• The role of a DMC in an impairment evaluation is not to question, or to seek to disprove, an adjudicatory agency’s determination that the medical evidence is sufficient to establish that an employee has a compensable illness, particularly when that agency must use a legal/administrative definition of a disease rather than one that is generally accepted in the medical profession. EEOICPA Order No. 10007316-2007 (Dep’t of Labor, February 4, 2008).
• Allocating the impairment of an organ or body function between a covered illness and a non-covered illness is prohibited. Instead, if any portion of the permanent impairment of an employee’s organ or body function is due to a covered illness, the entire extent of impairment for that organ or body function is accepted as compensable under Part E. EEOICPA Order No. 10007316-2007 (Dep’t of Labor, February 4, 2008); EEOICPA Fin. Dec. No. 20221201-48314-5 (Dep’t of Labor, December 13, 2022).
• Employee who received an award under Part B and was found to have a minimum impairment rating of 10% was entitled to receive both impairment compensation of $25,000 and medical benefits under Part E for CBD. EEOICPA Fin. Dec. No. 10015379-2006 (Dep’t of Labor, March 16, 2006).
• Employee was found to have a 60% impairment rating due to Alzheimer’s disease using the clinical dementia rating system in tables 13-5 and 13-6 of the AMA’s Guides to the Evaluation of Permanent Impairment for rating physiological deficits of the central and peripheral nervous systems.  When asked, the rating physician noted that table 13-8 for rating emotional and behavioral disorders is in no way appropriate to use in this rating for a neurodegenerative disease.  EEOICPA Fin. Dec. No. 20200904-50023826-3 (Dep’t of Labor, December 23, 2020).