Disability is Inclusive of Impairment

By Fred J. Lewis

On November 23, 2016, the Idaho Industrial Commission decided to substitute their opinion for the findings of fact and conclusions of law authored by Referee Alan Taylor. The Commissioners felt compelled to do so because of the competing opinions of Terry Montague and Dr. Mary Barros-Bailey. Apparently the Commissioners believed that there was still some ambiguity over the Supreme Court’s decision in Corgatelli v. Steel West, Inc. They included the following discussion:

The workers’ compensation laws recognize a distinction between permanent impairment and permanent disability. Sund v. Gambrel, 127 Idaho 3, 896 P.2d 329 (1995); Corgatelli v. Steel West, Inc., 157 Idaho 287, 335 P.3d 1150 (2014). Quoting from Seiniger Law FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER – 25 Offices, P.A. v. State of Idaho ex rel Industrial Commission, 154 Idaho 461, 299 P.3d 773 (2013), the Corgatelli Court observed:

In worker’s compensation cases, the claimant’s recovery is typically categorized into types of benefits, such as medical expenses, temporary disability, permanent impairment, and permanent disability (disability in excess of impairment). Because those benefits are determined separately, the claimant’s recovery for each type of benefit is an identifiable sum of money.

Permanent impairment is defined at Idaho Code § 72-422 as follows: “Permanent impairment” is any anatomic or functional abnormality or loss after maximal medical rehabilitation has been achieved and which abnormality or loss, medically, is considered stable or nonprogressive at the time of evaluation. Permanent impairment is a basic consideration in the evaluation of permanent disability, and is a contributing factor to, but not necessarily an indication of, the entire extent of permanent disability. (Emphasis supplied.)

Permanent disability is defined at Idaho Code § 72-423 as follows: “Permanent disability” or “under a permanent disability” results when the actual or presumed ability to engage in gainful activity is reduced or absent because of permanent impairment and no fundamental or marked change in the future can be reasonably expected.

Under Idaho Code § 72-424, the rating of permanent impairment is a medical appraisal of the nature and extent of the injury or disease as it affects claimants’ functional abilities. Permanent disability is evaluated pursuant to Idaho Code § 72-425 and Idaho Code § 72-430. Idaho Code § 72-425 provides: “Evaluation (rating) of permanent disability” is an appraisal of the injured employee’s present and probable future ability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by pertinent nonmedical factors as provided in section 72-430, Idaho Code.

Idaho Code § 72-427 also speaks to the role of permanent impairment in evaluating disability: The “whole man” for purposes of computing disability evaluation of scheduled or unscheduled permanent injury (bodily loss or losses or loss of use) for conversion to scheduled income benefits, shall be a deemed period of disability of five hundred (500) weeks.

Idaho Code § 72-428 addresses the numerical calculations for disability and impairment: SCHEDULED INCOME BENEFITS FOR LOSS OR LOSSES OF USE OF BODILY MEMBERS. An employee who suffers a permanent disability less than total and permanent shall, in addition to the income benefits payable during the period of recovery, be paid income benefits for such permanent disability in an amount equal to fifty-five percent (55%) of the average weekly state wage stated against the following scheduled permanent impairments respectively: . . .

Therefore, permanent impairment is a “basic consideration” in evaluating disability and is a contributing factor to, but not necessarily a measurement of, the entire extent of an injured worker’s permanent disability. Similarly, Idaho Code § 72-425 makes it clear that disability is assessed by considering how the injured worker’s ability to engage in gainful activity is impacted by two things; the injured worker’s permanent impairment and the relevant non-medical factors identified at Idaho Code § 72-430. Finally, the calculations used to establish scheduled and unscheduled impairments are not the exclusive measure of permanent disability.

In Corgatelli, the Idaho Supreme Court held that a Claimant’s impairment rating was not a part of or included in the definition of total and permanent disability, and therefore refused to give the Idaho State Insurance Fund a credit for impairment rating monies that were paid to Mr. Corgatelli prior to the date that he was found to be totally and permanently disabled.

At the oral argument on Corgatelli, I had argued to the Idaho Supreme Court that we were not asking for a major change in Idaho Workers’ Compensation law and that the only scenario in which the surety would not be allowed a credit for PPI or impairment rating benefits paid would be in the instance where the Claimant was paid impairment rating benefits prior to the finding that the Claimant was totally and permanently disabled. I conceded at the oral argument in Corgatelli that in permanent partial disability cases, the surety should receive a credit for PPI benefits paid to the claimant and agreed that impairment ratings were inclusive of permanent partial disability. The Corgatelli case does not discuss the permanent partial disability scenario.

The Commission went on to hold that in cases that are less than total permanent disability cases, or where the disability is only partial in nature, this partial disability is inclusive of the Claimant’s impairment rating. Since the Idaho Supreme Court did not comment on whether the Corgatelli rule applied to less than total and permanent disability cases, the Commission held that in permanent partial disability cases, the claimant’s overall disability is inclusive of their impairment rating.

The Commission found that Mr Lableu was 60% disabled and that this disability rating included his 15% whole person impairment rating.

I believe that Idaho Workers’ Compensation attorneys will agree that this is the law in the Idaho Workers’ Compensation system and that Corgatelli did nothing to change how permanent partial disability benefits are calculated.

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