Current through Register Vol. 71, No. 24, June 14, 2024
Rule 7-140 - PERMANENT DISABILITY140.1 A claimant may be eligible for permanent disability compensation pursuant to Section 2307 of the Act (D.C. Official Code § 1-623.07 ) upon reaching maximum medical improvement (MMI). A claimant may apply for such compensation after:
(a) Reaching MMI for a disability;(b) Receiving four hundred-forty-eight (448) weeks of temporary total or partial disability wage- loss compensation, pursuant to Section 2306a of the Act (D.C. Official Code § 1-623.06 a); or(c) Loss of use of both hands, both arms, both feet, or both legs, or the loss of sight of both eyes.140.2 A claim for permanent disability compensation by a claimant who is eligible to request an award pursuant to § 140.1(a) of this chapter shall be filed with the Program by submitting Form 12:
(a) Within one hundred and eighty (180) days after the termination of temporary disability wage- loss benefits by the Program where the claimant has reached MMI. A claimant who fails to file a claim for permanent disability within one hundred and eighty (180) days after termination of temporary disability wage-loss benefits shall not be entitled to permanent disability benefits thereafter, unless there is good cause found by the Program to excuse the delay; or(b) At any time within one (1) year after a claimant is determined to have reached MMI where temporary disability wage- loss benefits ceased before MMI was reached, or where a claimant never received temporary wage- loss benefits.140.3 A claim for permanent disability compensation by a claimant who is eligible to request an award pursuant to § 140.1(b) of this chapter shall be filed as a hearing for permanent disability with the Office of Administrative Hearings by submitting Form 9 within fifty-two (52) weeks after payment of the four hundred forty-eighth (448th) week of temporary total or partial disability wage-loss benefits. The Form 9 submission shall include the documents required under § 140.5. Any hearing request that is filed or refiled after the last fifty-two (52) weeks of five hundred (500) weeks of temporary wage-loss benefits shall be denied.
140.4 A claimant who is eligible to request permanent disability compensation pursuant to § 140.1(c) of this chapter may be awarded a schedule award for permanent disability in lieu of temporary disability wage- loss benefits. Such an award may be made upon filing a claim for temporary total disability wage- loss compensation, where the claimant has been determined to have a permanent impairment involving the loss of use of a member or function of the body, or disfigurement in accordance with the most recent edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), subject to limitations provided at Section 2321 of the Act (D.C. Official Code § 1-623.21 ).
140.5 To file a claim for permanent disability compensation pursuant to § 140.1(a) or (b) of this chapter, the claimant shall complete Form 12 and provide supporting information and documentation, including a permanent disability rating performed in accordance with the most recent edition of the AMA Guides from a qualified physician, if a permanent disability rating has already been provided to the claimant. If a permanent disability rating has not been provided, the claimant may request on Form 12 that the Program obtain a permanent disability rating for the claimant, and the Program will designate a qualified physician to evaluate the claimant and complete From 12 with supporting documentation accordingly.
140.6 If a claimant requests a schedule award pursuant to § 140.1(a) of this chapter, the Program shall:
(b) Request additional information or action as necessary, including the scheduling of a physical examination(s), to evaluate the extent of permanency;(c) Apply the burden of proof standard provided at §119.4; and(d) Issue a written decision within thirty (30) days of receipt of all required documents that shall:(1) Set forth the basis for accepting or denying the request; and(2) Be accompanied by information about the claimant's right to appeal the Program's decision to the Chief Risk Officer, as provided in § 156 of this chapter. 140.7 (a) Hearings conducted in response to requests for permanent disability schedule awards filed pursuant to § 140.1(b) of this chapter shall:
(1) Be conducted pursuant to the provisions of Section 2324(b) of the Act (D.C. Official Code § 1-623.24(b) ) and be subject to the requirements of this chapter;(2) Allow for the scheduling of physical examination(s) of the claimant upon the filing of a hearing request to evaluate the extent of permanency of impairment and relationship to the accepted work injury;(3) Be subject to OAH Rules, including those governing hearings of Public Sector Workers' Compensation matters;(4) Allow for post- hearing briefing to be filed within seven (7) business days after the hearing upon request of either party;(5) Be subject to the burden of proof standard provided at § 119.4 of this chapter; and(6) Result in the issuance of a written final decision within thirty (30) days of the hearing or later briefing date, where applicable. (b) Awards for permanent disability compensation issued by the Program or OAH shall: (1) Be based solely on a permanent disability rating performed in accordance with the most recent edition of the AMA Guides from a qualified physician;(2) Be limited to a disability rating arising out of a condition that has been previously adjudicated as compensable and apportioned in accordance with Section 2307(d) of the Act;(3) Exclude awards for attorney's fees;(4) Be computed by the Program in accordance with the schedule provided at Section 2307 of the Act (D.C. Official Code § 1-623.07 ), pursuant to § 129 of this Chapter, and not be subject to cost-of- living- adjustments. Adjustments to t he Program's computed rate shall be made pursuant to Section 2341, as they become available after payment on the schedule award begins ; and(5) Set forth the basis for accepting or denying the request, in whole or in part, and be accompanied by information about the parties' right to appeal the decision, as provided in §§ 156 or 163 of this chapter, as applicable.(c) Costs for physical examinations ordered by the tribunal or requested or obtained by the Program shall be paid by the Program, unless a permanent impairment rating performed in accordance with § 140.5 has already been provided by the Program or the order requires an examination to be conducted by a non-Panel physician;140.8 Awards for permanent disability compensation shall be computed by:
(a) Calculating the monthly compensation less COLAs pursuant to § 129 of this Chapter;(b) Converting the monthly compensation to weekly compensation by multiplying the monthly compensation rate by twelve (12) and dividing the product by fifty-two (52); and(c)(1) In the event of a total loss of use of a member or function of the body, multiplying the weekly compensation rate computed by § 140.8(b) by the number of weeks indicated in the schedule for such member or function under Section 2307(c) of the Act; or(2) In the event of a partial loss of use of a member or function of the body, adjusting the award schedule for partial disability by multiplying the total number of weeks available for the impaired member or function under Section 2307(c) of the Act by the percentage impairment rating provided by the physician, as awarded by the Program or OAH, and multiplying the adjusted award schedule for partial disability by the weekly compensation rate computed pursuant to § 140.8(b). 140.9 Any medical report or evidence submitted in support of a determination of eligibility for a schedule award under Section 2307 of the Act (D.C. Official Code § 1-623.07 ) shall be prepared by a physician with specific training and experience in the use of the most recent edition of the AMA Guides. The medical report must identify the clinical diagnosis, diagnosis code, current clinical symptoms, current examination findings, and diagnostic testing results, as well as how the medical records are interpreted with citation to the specific page number, paragraph, and table relied upon within the AMA Guides to establish how the physician arrived at the impairment rating.
140.10 A claimant who requests or receives a schedule award pursuant to Section 2307 of the Act (D.C. Official Code § 1-623.07 ) shall be ineligible for further wage- loss compensation for temporary disability arising out of the same injury for which the schedule award has been approved or paid, unless the request is made pursuant to Section 2306a of the Act. Requests for schedule awards made pursuant to Section 2306a of the Act shall not result in immediate termination of temporary wage- loss compensation until the expiration of five hundred (500) weeks of entitlement to temporary wage- loss compensation or the issuance of a final decision accepting a claimant's request for permanent disability benefits, whichever is sooner.
140.11 A claimant may not receive wage- loss compensation for temporary disability and a schedule award for the same injury at the same time.
140.12 Permanent disability compensation shall be limited to those body parts and functions listed in the schedule set forth in Section 2307 of the Act (D.C. Official Code § 1-623.07 ).
Final Rulemaking published at 59 DCR 8766, 8809 (July 27, 2012); amended by Final Rulemaking published at 64 DCR 6325 (7/7/2017); amended by Final Rulemaking published at 66 DCR 4246 (4/5/2019); amended by Final Rulemaking published at 67 DCR 7481 (6/12/2020)Authority: Chief Risk Officer of the Office of Risk Management (ORM), Executive Office of the Mayor, pursuant to the authority set forth in section 2344 of the District of Columbia Government Merit Personnel Act of 1978 (CMPA), effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code § 1-623.44 (2012 Supp.)); section 7 of Reorganization Plan No. 1 of 2003 for the Office of Risk Management, effective December 15, 2003; and Mayor's Order 2004-198, effective December 14, 2004