What is a permanent disability rating?
Some injuries heal completely. Others leave something behind, like a back that can't lift what it used to or a shoulder that won't reach overhead anymore. California workers' comp pays permanent disability benefits for that lasting loss, and the rating is how the system measures it.
The rating is a percentage between 0 and 100. It estimates how much the injury limits the kinds of work you can do and your ability to earn a living. Pain matters only as far as it affects what you can do. A rating of 100 percent means permanent total disability, and that's rare.
The process starts when your doctor says your condition is "permanent and stationary," also called maximum medical improvement. That means treatment isn't expected to change much anymore, even if you still need care. At that point the doctor writes a report describing what's left.
How does the doctor's report turn into a percentage?
For injuries from 2005 on, California uses the 2005 Permanent Disability Rating Schedule. For an injury on or after January 1, 2013, the steps look like this:
- The doctor measures your impairment using the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition. The result is called whole person impairment, or WPI.
- The WPI is multiplied by 1.4, as Labor Code section 4660.1 requires.
- The number is adjusted for the job you had when you were hurt.
- It's adjusted again for your age on the date of injury.
- If part of the disability wasn't caused by work, that part comes out. This is called apportionment.
When more than one body part is hurt, the ratings are usually combined with a chart in the schedule instead of simply added. Two 10 percent ratings, for example, typically combine to less than 20.
Injuries from 2005 through 2012 use a different adjustment in step 2, based on lost future earning capacity, instead of the flat 1.4.
Why do your job and age change the rating?
The same injury affects people differently depending on the work they do. A knee injury matters more to a roofer than to someone who works at a desk. The schedule sorts jobs into occupational groups, and each group gets its own adjustment for each kind of injury. Jobs that demand more of the injured body part rate higher, and jobs that demand less can rate lower.
Age works in a similar way. The schedule assumes an older worker has a harder time adapting to a permanent limitation, so older workers usually get a small increase and younger workers a small decrease.
So two coworkers with what sound like the same injury can end up with different ratings. Your actual duties decide which group you fall in, and a job title on its own can put you in the wrong one. Make sure the doctor and the claims administrator know what you really did all day.
What is apportionment?
Under Labor Code section 4663, the doctor has to say what percentage of your permanent disability was caused by the work injury and what percentage came from other things, such as an earlier injury, arthritis, or a condition you already had. Only the part caused by work is paid.
Say the doctor finds that 75 percent of your disability comes from the work injury and 25 percent from other causes. Then only 75 percent of the rating counts toward your benefits. Earlier awards matter too. Under section 4664, if you already received a permanent disability award, the law presumes that disability is still there when you're hurt again, and apportionment is presumed when the new injury involves the same part of the body. All your awards for one region of the body, such as the spine or the upper extremities, also can't add up to more than 100 percent over your lifetime.
Apportionment is one of the most disputed parts of a case. The doctor has to explain how and why they reached the percentages. A conclusion without real reasoning behind it can be challenged.
How does the rating turn into payments?
For ratings under 100 percent, the rating decides how many weeks of permanent disability payments you get. For injuries from 2005 on, Labor Code section 4658 gives more weeks per percentage point as the rating goes up:
- 0.25 to 9.75 percent: 3 weeks for each percent
- 10 to 14.75 percent: 4 weeks for each percent
- 15 to 24.75 percent: 5 weeks for each percent
- 25 to 29.75 percent: 6 weeks for each percent
- 30 to 49.75 percent: 7 weeks for each percent
- 50 to 69.75 percent: 8 weeks for each percent
- 70 to 99.75 percent: 16 weeks for each percent
The weeks add up band by band. You don't multiply your whole rating by one row. A 20 percent rating, for example, works out to 75.5 weeks, not 100.
The weekly amount is two-thirds of your average weekly wage before the injury, within a minimum and maximum that the law sets by date of injury. A rating from 70 to 99.75 percent also brings a life pension after the weekly payments run out. A 100 percent rating, permanent total disability, is paid for life. For some injuries from 2005 through 2012 at larger employers, payments could go up or down 15 percent depending on whether the employer offered you work.
If you were getting temporary disability, the first permanent disability payment is generally due within 14 days after the last temporary disability payment. If you weren't, it's due within 14 days after the claims administrator learns you have a permanent disability. After that, payments come every two weeks. One exception: if your employer offers you work that pays at least 85 percent of your wages and benefits from before the injury, or you're already working at 100 percent or more, these payments can wait until your case is settled or decided. The money is still owed. It just isn't paid in advance.
What if you disagree with your rating?
Different people reading the same medical report sometimes come up with different ratings, and ratings are often negotiated.
If the problem is the medical report itself, you can challenge it through a Qualified Medical Evaluator (QME), or through an Agreed Medical Evaluator (AME) if you have a lawyer and both sides agree on one. If you don't have a lawyer and you saw a QME, a rater at the state's Disability Evaluation Unit rates the report automatically. If you think the evaluation or the rating has mistakes, you can ask the Administrative Director of the Division of Workers' Compensation to reconsider it. That's a different step from appealing a judge's decision. You have 30 days after you receive the rating to ask for it (Labor Code section 4061), and the division's Information & Assistance unit can help.
If you and the claims administrator still can't agree, a workers' comp judge decides. The usual rating method can sometimes be challenged, too. A doctor can use any chapter, table or method within the four corners of the AMA Guides that best describes your disability, and a judge can accept that rating when solid medical evidence backs it up.
One limit to know about: for injuries on or after January 1, 2013, sleep problems, sexual dysfunction and psychiatric conditions that come from a physical injury can't raise the rating. There's an exception for psychiatric conditions only: they can add to the rating if they came from being the victim of a violent act, from direct exposure to a significant violent act, or from a catastrophic injury such as losing a limb, paralysis, a severe burn or a severe head injury. You can still get treatment for all of these conditions.
When should you talk to a workers' comp lawyer?
Ideally before the doctor writes the permanent and stationary report, or as soon as you receive one. An objection to a doctor's permanent disability findings has to be made within a reasonable time, so it's best not to wait. An early look can catch a wrong job description, a body part the doctor left out, or apportionment that doesn't hold up.
It's worth talking to a lawyer even if your claim was accepted and your checks arrive on time. The insurance company's calculation has to follow the medical evidence and the law, and it can be checked and disputed. You can request a free case evaluation and go over your report and your rating with our office.
This article is general information about California workers' compensation, not legal advice about your situation. Every case is different.
Yazdchi Law, P.C. — Eman Yazdchi, responsible attorney. Office: Palmdale, California. Attorney advertising.