Permanent Partial Disability is defined in Missouri as a disability that is permanent in nature and partial in degree.[1] Understanding the impact of injuries and assessing workers’ entitlement to Permanent Partial Disability, however, is not an exact science. Most workers’ compensation systems try to provide a method that is administratively easy and produces fair and adequate compensation for workers’ injuries. Workers’ compensation laws in all states address the issue of PPD, but there is no common system or agreement on valuation.

Scheduled Body Parts

Missouri’s Workers Compensation Act provides a schedule of 29 body parts with assigned values set out in weeks.[2] Injuries to teeth have a separate “schedule” set out by Regulation and found at 8 CSR 50-5.010 of the Department of Labor and Industrial Relations rules. If the disability suffered in any of the 29 body parts listed in  Section 287.190.1, RSMo., is total by reason of amputation or complete loss of use, then the number of weeks of compensation allowed in that schedule for such disability is increased an additional 10%.[3] Loss of hearing and loss of sight are listed as a schedule loss. Both of those losses have specific rules set forth for the determination of loss.[4]

Non-Scheduled Body Parts

Anything not listed in the schedule is considered a non-scheduled loss. Non-scheduled losses include injuries to the head, neck, back, organs, skin conditions etc. Non-scheduled losses are based on the “Body as a Whole” which is assigned a value of 400 weeks.[5]  For example, a psychological/mental condition has been found to be an unscheduled loss.[6] Tinnitus, a neurological condition that causes ringing/buzzing or uncontrollable noise in the ears is considered an unscheduled loss.[7] Section 287.190.3 also directs that non-scheduled injuries shall include permanent injuries causing loss of earning power.

Requirements to Establish PPD

Permanent Partial Disability is decided after temporary disability compensation is stopped, and the injured worker has reached maximum medical improvement (MMI). MMI is the point where an injury or medical condition will no longer improve with medical treatment and no further progress is expected.[8] It should be noted here that more medical care should not be denied simply because an employee may have achieved maximum medical improvement. The statute contemplates medical treatment that gives comfort and relief even though a cure of residual conditions is not available.[9] In addition, to be entitled to future medical benefits, an employee need not show conclusive evidence of a need for future medical treatment. A claimant needs only to show a reasonable probability that future medical treatment is necessary because of the work-related injury.

Multiple Injuries

If a claimant sustains injury to two or more portions of the body (scheduled or unscheduled), depending on the degree of disability to each part of the body, they may be entitled to more compensation based on the “multiplicity factor.”   A multiplicity factor is a special or added allowance for cumulative disabilities resulting from a multiplicity of injuries arising from one accident or exposure. An ALJ and/or the Commission has the discretion to include a “multiplicity” factor in assessing cumulative disabilities. This method is not specifically set out in the Act but has been upheld as an acceptable consideration by case law.[10] 

In Lowery v. ACF Industries, Inc.,[11] the claimant sustained a crushing injury to two (2) fingers which left the fingers weak, atrophy and in a fixed contracted position with limited ability to grasp. The Commission awarded disability to the hand (175 level) rather than base the award on a scheduled loss of use of the individual fingers.[12] Often with multiple injuries to various parts of the body, the injuries will be treated as an unscheduled loss and the award is a loss to the body as a whole. Keep in mind, the total amount of PPD compensation has been held to not exceed 400 weeks. In Swartz v. Shamrock Dairy Queen, the claimant sustained severe injuries making him paraplegic.[13] He continued to work, however, and sought compensation for PPD. A physician rated his disability as 100% loss of use of each leg (which equaled over 400 weeks), 60% loss of use of the body as a whole for neurogenic bladder, 20% loss of use of the body as a whole for sexual dysfunction, and 15% loss of use of the body as a whole for psychological injuries.[14] The court held that according to the Act he was limited to recovery of only 400 weeks.[15]

Factors to Consider in Determining PPD

Missouri courts have incorporated a variety of measurements to equitably decide PPD. In Loven v. Greene County, the Southern District of the Missouri Court of Appeals found the definition of “disability” to include:

… the inability to do something, a deprivation of lack of physical, intellectual, or emotional capacity or fitness, the inability to pursue an occupation or to perform services for wages because of physical or mental impairment, or physical or mental illness, injury, or condition that incapacitates in any way.[16]

What is not compensated is the  “pain and suffering” an injured worker endures during and after the healing period.[17]  In Missouri, the courts have held that the purpose of the Workers Compensation Act is not to provide indemnity for any pain and suffering or physical ailment. The focus is on a claimant’s loss of earning power and/or  loss of the ability to perform or participate in non-work activities.

Awards for all scheduled and unscheduled injuries are based on disability prior to artificial correction.[18] A finding of PPD does not need to require an actual loss of earnings.[19]

Proving Up PPD

When seeking PPD benefits, the claimant has the burden of proof to show that a disability resulted and the nature of such disability.[20]  This must be shown by a reasonable degree of probability.[21]  Reasonable probability means probability founded on reason and experience which inclines a person to believe it, but may leave some room for doubt.[22] The determination of a specific amount or percentage of disability awarded to a claimant is a finding of fact within the province of the Commission and ALJ.[23]  A claimant may sustain a PPD despite having no work restrictions, medication or other treatment regiments, if it appears there is an injury that caused a partial loss of bodily function and an impairment of the efficiency of the person in the ordinary pursuits of life.[24] In Sapienza v. Deaconess Hosp., the court found that an injured employee’s return to full work did not render an award of 400 weeks for PPD excessive, where the evidence showed the employee was impaired in ordinary pursuits of his life due to many injuries.[25]

Missouri’s statute and courts have  utilized a broad range of assessment tools to make sure that settlements and awards accurately provide reasonable monetary compensation, and require that medical care adequately provides services that cure and relieve the effects of the injury or medical condition. Missouri considers both diminishing performance and participation in both work and non-work activities in assessing PPD.  Missouri’s approach has always provided the opportunity in mediation for discussion with the claimant on the effects of the injury.

Not all people have the same physical or psychological resilience. Human frailties may predispose a person to more severe damage than others and result in variation of need for treatment and the extent of PPD. An experienced ALJ will be familiar with what adequate medical care and testing is needed for most injuries. They also will recognize when the medical care offered is inadequate and focused on short term gains to limit treatment costs and promote premature return to work. Delays by insurance companies in authorizing medical tests or treatment creates distrust and agitation that adversely affect the success of injured workers’ outcomes.   

Medical Evidence

The Act provides that PPD shall be proven and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In deciding compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective findings. Objective medical findings are those findings demonstrable on physical examination or by proper test or diagnostic procedures.  The ALJ and Commission are not bound by the exact percentages of disability estimated by medical witnesses, and are free to deviate from those percentages.

The court in Quinlan v. Incarnate Word Hospital held that the Commission/ALJ are not bound by the exact percentages of PPD estimated by medical providers.[26] The impact of an injury upon the employee’s ability to work or take part in non-work activities involves considerations which are not exclusively medical in nature.[27]

Disfigurement

Disfigurement is additional to any PPD caused by injuries or medical conditions, and is required to be considered if the employee is seriously and permanently disfigured about the head, neck, hands or arm, up to a maximum amount of 40 weeks.[28]

Aggravation of Pre-Existing Conditions

Missouri courts have long held an employee can be compensated when a work injury aggravates a preexisting condition to the level of a disability, provided proof of the requisite statutory standard of causation: that the work accident was the prevailing factor in causing the resulting medical condition and disability.[29]  The prevailing factor is defined to be the primary factor in relation to any other factor, causing both the resulting medical condition and disability. The aggravation of a pre-existing condition or its symptoms should show a sufficient change in pathology to qualify for compensation.[30]

If a claimant suffers a work injury to a part of the body that was previously injured or disabled, the assessment of PPD for the work injury requires apportionment of the disability between the two conditions requiring expert opinion.[31]

Section 287.190.6(3) provides any award of compensation shall be reduced by an amount proportional to the PPD determined to be a pre-existing disease or condition or attributed to the natural process of aging sufficient to cause or prolong the disability or need for treatment. If a preexisting condition bears upon a claim for PPD, expert testimony should provide a conclusion as to the extent of the preexisting condition to decide what percentage of PPD is attributable to the work-related disability. A failure to offer expert testimony may result in no recovery.[32]

Disability is a Legal Determination

Medical evaluations that describe and quantify the lost  capabilities and burdens added do help judges analyze the impact of the impairment on the claimant’s life and assess whether any disability benefits are owed and how much.  However, disability is a legal and not a medical determination.  Non-medical factors such as age, education, work experience, transferable skills, intellect, support network, psychological resilience, the economy and geographic area of residence will be considered in context with the law.

The decision is ultimately in the hands of the ALJ and Commission. An assignment of PPD is within the expertise of the Labor and Industrial Relations Commission and Administrative Law Judges and is considered a finding of fact.[33]