§ 10.404 When and how is compensation for a schedule impairment paid?
Compensation is provided for specified periods of time for the permanent loss or loss of use of certain members, organs and functions of the body. Such loss or loss of use is known as permanent impairment. Compensation for proportionate periods of time is payable for partial loss or loss of use of each member, organ or function. 5 U.S.C. 8107(b)(19). OWCP evaluates the degree of impairment to schedule members, organs and functions as defined in 5 U.S.C. 8107 according to the standards set forth in the specified (by OWCP) edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment.
NOTE:
The edition of the AMA Guides used by OWCP changes from time to time, and does not necessarily correspond to the edition used by any state workers’ compensation system.It has also been the unfortunate situation where a doctor completes an impairment rating under, e.g., the 3rd edition of the AMA Guides, but when the OWCP receives the report and starts its analysis of that rating, the Claims Examiner receives a directive to have the impairment rated under the 4th edition. Invariably, the newer editions provide different standards and methodologies for the doctor making the impairment rating – which means the rating process starts over from the beginning.A newer edition almost always provides lower recoveries for claimants. |
(a) 5 U.S.C. 8107(c) provides compensation for loss to the following list of schedule members:
Member | Weeks |
Arm ……………………………………………. | 312 |
Leg …………………………………………….. | 288 |
Hand ………………………………………….. | 244 |
Foot ……………………………………………. | 205 |
Eye …………………………………………….. | 160 |
Thumb ………………………………………… | 75 |
First Finger lost ……………………………. | 46 |
Great toe …………………………………….. | 38 |
Second finger ……………………………… | 30 |
Third finger …………………………………. | 25 |
Toe other than great toe ………………. | 16 |
Fourth finger ……………………………….. | 15 |
Hearing, one ear ………………………….. | 52 |
Hearing, both ears ……………………….. | 200 |
(b) Pursuant to the authority provided by 5 U.S.C. 8107(c)(22), the Secretary [of Labor] has added the following organs to the compensation schedule for injuries that were sustained on or after September 7, 1974, except that a schedule award for the skin may be paid for injuries on or after September 11, 2001:
Member | Weeks |
Breast (one) ………………………………… | 52 |
Kidney (one) ……………………………….. | 156 |
Larynx ………………………………………… | 160 |
Lung (one) ………………………………….. | 156 |
Penis ………………………………………….. | 205 |
Testicle (one) ………………………………. | 52 |
Tongue ……………………………………….. | 160 |
Ovary (one) …………………………………. | 52 |
Uterus/cervix and vulva/vagina ………. | 205 |
Skin ……………………………………………. | 205 |
(c) Compensation for schedule awards is payable at 66-2/3 percent of the employee’s pay, or 75 percent of the pay when the employee has at least one dependent.
(d) The period of compensation payable under 5 U.S.C. 8107(c) shall be reduced by the period of compensation paid or payable under the schedule for an earlier injury if:
(1) Compensation in both cases is for impairment of the same member or function or different parts of the same member or function, or for disfigurement; and
(2) OWCP finds that compensation payable for the later impairment in whole or in part would duplicate the compensation payable for the preexisting impairment.
(e) Compensation not to exceed $3,500 may be paid for serious disfigurement of the face, head or neck which is likely to handicap a person in securing or maintaining employment. Under 5 U.S.C. 8107(21), a disfigurement award may be paid concurrently with schedule awards.
Body Part
Arm
Leg
Hand
Foot
1st Finger
2nd Finger
3rd Finger
4th Finger
Thumb
Great Toe
Other Toes
Eye
Tongue
Maximum Weeks
312
288
244
205
205
30
25
15
75
38
16
160
160
Body Part
Hearing Loss
1 Ear
2 Ears
Vision Loss
Breast
Kidney
Larynx
Lung
Penis
Testicle
Ovary
Uterus/Cervix
Vulva/Vagina
Maximum Weeks
52
200
160
52
156
160
156
205
52
52
205
205
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So how does this process work? And what do claimants need to watch out for?
To begin with, your injury must have resulted in the loss, or loss of use, of the parts of the body, now including skin, listed in the table above. Loss of a body part simply means that a specific part of your body was cut off, or was amputated because of your work related injury. For example, people lose fingers in accidents with knives of saws; feet, legs, fingers and hands are lost in any number of ways through accidents.
Loss of use of a body part means, for example, your hearing was permanently damaged because you worked in a noisy environment, you have permanent reduced lung capacity because you inhaled toxic chemicals spilled by your office’s janitor, or your arms and hands have permanent diminished strength, range of motion, and sensitivity or numbness because of your repetitive motion injury/ies.
Now that you found your body part in the table/s above, the first question that comes to mind is how much money is this worth to you?
To figure out the monetary value of you schedule award you need a rating examination by a physician – via which she will evaluate your loss using the appropriate edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment.
Often your treating physician will refer you to another doctor who works with permanent impairment rating on a regular basis.
The specifics of an impairment rating examination are beyond our purposes here.
Once your physician writes her report of your impairment rating, those documents then go to OWCP for its review. At OWCP the rating paper work will go to its Medical Advisor for review. If your doctor’s report is solid, OWCP will probably accept it, and compute the monetary amount of your award.
Sometimes, the OWCP’s Medical Advisor will find errors in an impairment rating and he will make adjustments and send his report to the Claims Examiner.
This area is ripe for argument over which report most accurately rates your permanent impairment. To win such an argument, you may need your physician to provide supplemental reports explaining why her report is more valid than that of the OWCP Medical Advisor.
For skin or disfigurement claims, you may well need to submit photographs of the affected area.
What to watch out for?
You will notice that backs and necks are not listed in the tables above. In and of themselves, backs and necks are not eligible for a scheduled award.
Back and neck injuries are compensated via full wage loss compensation, a limited duty job position that accommodates the limitation and restrictions caused by the neck or back injury or a Loss Of Wage Earning Capacity (LWEC) decision. Granted, that does not seem like much when you hear stories of people getting hundreds of thousands of dollars in settlement for their back injury under a state workers’ compensation claim. Unfortunately, the concept of “settlements” for neck and back injuries does not exist in the federal system.
Fortunately, you can receive a scheduled award due to the effects a back or neck injury has on a body part that does appear in the tables above. For example, a back injury may permanently affect a nerve in your arm or leg, causing permanent weakness, loss of sensation, loss of range of motion, and the like. This nerve damage may entitle you to a scheduled for the affected arm or leg – but not the back.
On a very different level there have been cases where a lower back injury has permanently damaged nerves that, in turn, caused people to lose the use of their reproductive organs for sexual activity. Men have suffered erectile dysfunction, and women have suffered complete loss of sensation – leaving both sexes with a loss of sexual activity – which may entitle you to a schedule award.
Why are schedule awards denied?
The usual reason for denial of a schedule award, or you receiving a lower rating than you should [and hence less money], is a poor medical report, usually caused by a physician’s inexperience with impairment ratings, or her failure to properly, use, or follow, the current edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment.
Remember, the better the report from your doctor, the less there is for the OWCP’s Medical Director to disagree with.