Chapter E-900 Impairment Ratings

1. Purpose and Scope. This chapter provides guidance on how the CE determines the extent of a covered Part E employee’s impairment that is attributable to a covered illness, how the District Office (DO) and the Final Adjudication Branch (FAB) will evaluate medical evidence of impairment in the case record, what is considered to be a ratable permanent impairment, and the potential eligibility of a covered Part E employee for additional impairment benefits following an initial award of impairment benefits.

2. Policy. The CE is responsible for processing impairment rating determinations and ensuring benefits are appropriately paid under the provisions of 42 U.S.C. 7385s, 7385s-2, 7385s-4, and 7385s-5.

3. General Requirements for Impairment Ratings. For an employee to be qualified for an impairment award under Part E of the EEOICPA, the CE must first determine that the employee is a covered Part E employee found to have contracted a covered illness through exposure to a toxic substance at a DOE facility or RECA section 5 facility. The CE then determines if the covered Part E employee is claiming impairment as a result of an accepted covered illness or illnesses. In general, an impairment is a decreased function in a body part(s) or organ(s) established by medical evidence. The employee will not be able to claim impairment on the Form EE-1, so the CE must be cognizant to develop for impairment when applicable. The determination of impairment must not delay the issuance of a recommended decision to accept on other issues. The Secondary CE assigned to the FAB may develop and adjudicate an impairment claim while a case with a recommended decision to accept is pending FAB review.

a. The CE determines the extent of an employee’s impairment that is the result of a covered illness contracted through exposure to a toxic substance at a DOE facility or a RECA facility. An impairment rating performed by a qualified physician who satisfies DEEOIC’s criteria for physicians performing impairment evaluations is the basis of such a determination. The physician’s impairment rating report must be clearly rationalized and grounded in sound medical opinion.

(1) An impairment evaluation of the employee must be based upon the most current edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA’s Guides).

(2) An impairment evaluation must be performed by a qualified physician who satisfies the DEEOIC’s criteria for physicians performing impairment evaluations. In order for a physician to be deemed qualified, he/she must hold a valid medical license and Board certification/eligibility in the appropriate field of expertise (i.e. toxicology, pulmonary, neurology, occupational medicine, etc.). He/she must also show that he/she meets at least one of the following criteria: is certified by the American Board of Independent Medical Examiners (ABIME) and/or American Academy of Disability Evaluating Physicians (AADEP) and/or possesses knowledge and experience in using the AMA’s Guides and/or possesses the requisite professional background and work experience to conduct such ratings. Evidence of criterion satisfaction is either requested from the rating physician (see Exhibit 2) or gathered by DEEOIC National Office when evaluating a physician for participation in the District Medical Consultant (DMC) program.

(a) As noted above, evidence is requested of all rating physicians to determine whether or not they meet the required qualifications. The physician submits evidence of his/her medical license and certifications. If a physician does not possess either the ABIME or AADEP certification, he/she submits a statement certifying and explaining his/her familiarity and years of experience in using the AMA’s Guides.

(3) The impairment rating is a percentage that represents the extent of a whole-person impairment of the employee, based on the organ(s) or system(s) affected by an accepted covered illness or illnesses. The rating accounts for all accepted covered illness related impairments and includes all conditions that are present in the covered organ(s) or system(s) at the time of the impairment evaluation.

(4) As part of any impairment evaluation, the physician must specify the percentage points of a whole-person impairment that are the result of any accepted covered illness. As such, the physician must exclude any percentage points that are due to pre-existing and/or non-employment related impairments to the organ or body part being evaluated, insofar as that is possible. If the CE finds that the employee contracted more than one covered illness, the physician should specify the total percentage points of impairment that are the result of all of the employee’s covered illnesses.

(a) An impairment that is the result of any accepted covered illness, that cannot be assigned a numerical impairment percentage using the most current AMA’s Guides, will not be included in the employee’s impairment rating, and the physician performing the impairment evaluation needs to explain the rationale as to why a numerical impairment percentage cannot be assigned.

(b) A neurological impairment producing mental deficits, as a result of a documented exposure (i.e. exposure to heavy metals and chronic solvents) can be assigned a numerical percentage using the most recent edition of the AMA’s Guides, and will be included in the impairment rating for the employee. However, mental deficits that are not related to a neurological impairment cannot be assigned numerical percentages using the AMA’s Guides, and will not be included in the impairment rating for the employee, but may possibly be accepted as a consequential injury and eligible for medical benefits per Chapter 2-1000, of the procedure manual. A further discussion in regard to mental deficits that are not related to a neurological impairment is forthcoming.

(c) An impairment that is the result of a covered illness will be included in the employee’s impairment rating, only if the physician concludes that the condition has reached maximum medical improvement (MMI), which means that it is well-stabilized and unlikely to improve substantially with or without medical treatment. Conditions that are progressive in nature, and worsen over time, such as chronic beryllium disease (CBD), are considered to have reached MMI when the condition is not likely to improve. The only exception to this is if the CE finds, based upon probative medical evidence, that an employee’s covered illness is in the terminal stages. In this instance, the employee may be undergoing ongoing treatment and thus not have reached maximum medical improvement (MMI). However, if DOL were to wait for the outcome of the treatment to be known, the employee could pass away, and the eligibility for an impairment award extinguished. Therefore, in this case, the impairment that results from such a covered illness is included in the impairment rating for the covered Part E employee, even if maximum medical improvement (MMI) has not been reached.

(i) After reviewing the medical evidence, if the CE determines that the condition has not reached maximum medical improvement (MMI) or that it is not in the terminal stages, then the CE does not make an impairment determination. A letter is sent to the claimant informing him/her that an impairment determination will not be made at this time because MMI has not been reached.

4. Developing Medical Evidence. As part of the development process for impairment, and in order for an employee to undergo an impairment evaluation, the DEEOIC must obtain factual and medical evidence for the specific covered illness, if the evidence has not already been submitted by the employee. The development letters discussed below provide the claimant with options concerning the method of obtaining an impairment evaluation. The DEEOIC will pay the cost for obtaining the required evidence and medical tests required to undergo an impairment evaluation, and the cost for an impairment evaluation obtained by an employee, if it meets the criteria discussed in this section. In most claims, the DEEOIC will only pay for one evaluation by a physician or physician group, whether the evaluation was obtained by the employee or by the DEEOIC. However, it is at the CE’s discretion to have the employee undergo additional evaluations at the DEEOIC’s expense.

a. The CE initiates development by sending a development letter (Exhibit 1) to the employee, advising that he/she may be eligible for an award based on permanent impairment. This letter is only sent for employee claims, survivors are not entitled to benefits for permanent impairment. The letter requests that the employee advise the DEEOIC as to whether or not he/she wants to claim impairment as a result of the covered illness or illnesses. The letter also explains that the employee has two options, if he/she elects to claim impairment. Option one, the employee notifies the DEEOIC that they wish to choose a qualified physician of his/her own to perform an impairment evaluation. Option two, the employee is requesting that the DEEOIC arrange for an impairment evaluation to be conducted based upon specific medical evidence. This letter describes the evidence and physician information that must be submitted for each option. The employee is directed to contact the district office by phone and in writing, to communicate his/her wish to pursue a claim for impairment. The employee is allotted a total of sixty days to respond, with a follow up request sent to the employee at the first thirty day interval. The CE does not develop the impairment issue any further until a response is received from the employee.

(1) If the employee does not respond to the development letter within the allotted 60 days, or informs the CE that he or she does not want to pursue a claim for impairment, the CE sends a letter to the employee advising that the DEEOIC will not develop the claim for impairment at this time. The CE also notifies the employee of his/her rights to claim impairment in the future. Lastly, the CE places a note in the Case Note History Screen in ECMS that impairment will not be developed until further notice is received from the employee.

b. If the employee claims impairment, and elects option one, the CE sends a letter (Exhibit 2) to the physician the employee has selected. The letter notifies the physician of the employee’s eligibility, and the covered illness or illnesses with respective ICD-9 code(s). The letter also explains that in order for the DEEOIC to pay for one impairment evaluation, the evaluation must not have been performed more than one year prior to the date the report is received by DEEOIC. The letter also explains that the impairment evaluation must be performed in accordance with the most current edition of the AMA’s Guides, and that specific reference to the appropriate page numbers and tables used from the AMA’s Guides is required in the report. The letter further notifies the physician that he/she must submit evidence to support that he/she meets the eligibility criteria required by DEEOIC to perform ratings. Lastly, the CE includes a medical bill payment contractor enrollment package, which includes: an OWCP-1500 Health Insurance Claim Form (Exhibit 5) and the EEOICP Provider Enrollment Form (OWCP-1168). The EEOICP Provider Enrollment Form explains how a physician enrolls with the medical bill pay provider. The form also discusses how to submit charges related to the impairment rating. If a physician is already enrolled, there is no need to enroll again.

c. If the employee claims impairment and selects option two, the CE reviews the medical evidence in the case file, to determine if the documentation is sufficient for the DEEOIC to request an impairment evaluation by a District DMC. If the CE determines that the medical evidence of record is not sufficient, the CE sends a development letter (Exhibit 3) to the employee explaining the evidence/diagnostic test(s) required in order to conduct an impairment evaluation. The CE refers to the “Required Medical Evidence for Specific ICD-9 Codes” (Exhibit 4) job aid reference, for the specific covered illness and associated required evidence. The CE should provide the employee with a copy of the specific section of Exhibit 4 that relates to the employee’s covered illness or illnesses. Please note that Exhibit 4 is not complete and further guidance will be forthcoming in regard to conditions not listed in Exhibit 4. The CE also explains to the employee that the cost associated with obtaining the required evidence will be paid by the DEEOIC. If the tests are obtained prior to a recommended decision, the CE takes actions for payment of such bills as discussed in this section.

d. When the CE determines the medical evidence of record is sufficient for referral to a DMC for an impairment evaluation, the CE prepares a Statement of Accepted Facts (SOAF) and a memorandum with a request to the DMC that an impairment rating evaluation be performed based on the evidence of file. The CE forwards the request for an impairment rating evaluation along with the appropriate medical evidence, to a DEEOIC approved DMC via the District Office DMC scheduler.

5. Receipt of the Impairment Evaluation. Upon completion of the impairment evaluation and receipt in the DO, the CE reviews the report to assure all the DEEOIC criteria have been met, as previously discussed in this section. The employee is entitled to an award of impairment benefits, if one or more percentage points of the impairment are found to be related to a covered illness or illnesses.

a. To calculate the award, the CE multiplies the percentage points of the impairment rating that are the result of the employee’s covered illness or illnesses by $2,500. For example, if a physician assigns an impairment rating of 40% or 40 points, the CE multiplies 40 by $2,500, to equal a $100,000 impairment award.

b. If the impairment rating report submitted by the claimant is unclear or lacks clearly rationalized medical evidence as support, additional clarification is required. In such instances, the CE returns the impairment rating report to the rating physician with a request for clarification, indicating what areas are in need of remedy. If the report is returned without a sufficient response, or no response is received, the CE may seek DMC review and opinion as to the proper impairment rating value.

6. Procedure for Submitting Charges. When the CE sends the development letter (Exhibit 2), EEOICP Provider Enrollment Form (OWCP-1168), and the OWCP-1500 (Exhibit 5) to the physician, the OWCP 1500 must be clearly marked at the top “PROMPT PAY” in red ink. The CE must complete the following items on the OWCP-1500: sections 1a, 2, 3, & 5 (employee’s social security number, name, address, birth date, and sex). “Signature on file” should be indicated in sections 12 & 13, and in section 21 the CE enters the ICD-9 code V70.9. Please see EEOICPA PM 2-300 for additional guidance.

a. Upon receipt of the completed medical bill payment contractor enrollment package discussed above, the CE reviews the OWCP 1500 to be sure the physician has provided all the necessary information for the medical bill payment contractor provider to process the payment. The CE annotates in block #11 the PPA date (7 calendar dates from receipt at the District Office). The following sections must be completed: section 24A date service was performed; section 24B place of service; section 24C type of service; section 24D procedure code annotated with PE001; section 24E diagnosis code; sections 24F and 28 the amount of the charge(s); section 25 the physician’s tax ID number; section 30 total amount of charge(s); section 31 signature of the physician and date; section 32 name and address of facility where services were rendered; and section 33 physician’s name and address of the billing facility and their nine digit provider number (if the physician already has a number on file). The CE approves the bill by writing “APPROVED” in the top right hand corner along with his/her signature and date. The writing must not be placed over any relevant bill information.

b. ECMS Coding for prior authorization. The CE must take the following steps to complete the prior authorization process if a final decision approving at least one medical condition has not been issued at the time an impairment rating evaluation has been done;

(1) The CE must first access the “claim update screen”.

(2) The CE highlights any area in the “medical condition” box and presses the insert key. The next screen should have “medical condition (insert)” written at the top.

(3) The CE must click the down arrow in the box next to “reported ind” and change the Y (Yes) to N (NO). Tab to the next field and click on the down arrow in the “cond type” field and select “cond type” field and select “PA-Prior Approval.” Tab to the ICD-9 field and enter note field and enter the phrase, “Impairment Evaluation/Testing conducted by {Enter the Physician’s Name}.” Tab to the “status effective date” and “elig end date” fields and enters the dates listed in item 24A of the OWCP-1500. Save the entries and close the record. The CE must also update ECMS with the “V70.9” under the Employee Medical Condition Screen.

c. Submission of Approved charges to the Medical Bill Payment Contractor. Once the ECMS coding is input, the CE forwards the completed package (EEOICP Provider Enrollment Form (OWCP-1168) and the approved OWCP-1500) to the FO, who mails to the medical bill payment contractor at:

Division of Energy Employees

Occupational Illness Program

Prompt Pay

PO Box 8305

London, KY 40742-8305

These bills must be processed no later than twenty one (21) days upon receipt in the District Office, in order to comply with the Prompt Payment Act.

d. The DEEOIC will not pay for an impairment evaluation if the above listed criterion is not met, and/or if the impairment evaluation was performed by a physician prior to the date that the claim for Part E benefits is filed.

7. ECMS Coding for Impairment.

a. Developing for Impairment Claims. The CE utilizes the following ECMS coding when developing for impairment.

(1) When the CE sends an impairment development letter, the CE enters the “DO” (Developing Other) code into ECMS. The status effective date of the “DO” entry is the date on the letter that is sent to the claimant. Upon entry of the “DO” code, the CE selects “IM-Impairment” as the reason code in the drop down box. If a follow up letter to the claimant is required, the CE codes another “DO” in ECMS as discussed above.

(2) If a follow up letter to the employee and/or to the physician is required, the CE codes another “DO” in ECMS as discussed above.

(3) ‘IC – Impairment Claimed’. This code is used when the claimant informs DEEOIC in writing of intent to pursue an impairment claim. The status effective date is the postmark date of the letter, if available, or the date the letter is received in the DO/RC.

b. When the CE sends the request for an impairment rating evaluation to a DMC, a “MS” (Sent to Medical Consultant) development action code is entered into ECMS. The status effective date of the “MS” code is the date of the memorandum to the DMC. Upon entry of the “MS” code, the CE selects “IM-Impairment” as the reason code in the corresponding drop-down box.

c. When the district office receives the impairment report, it is date stamped and forwarded to the CE. Upon receipt of the report, the CE enters a “MR” (Received from Medical Consultant) development action code into ECMS. The status effective date of the “MR” code is the date stamp of the date the report is received into the DO. Upon entry of the “MR” code, the CE selects “IM-Impairment” as the reason code in the corresponding drop-down box.

d. Rules for Impairment without Maximum Medical Improvement (MMI).

(1) When impairment is claimed, but the employee has not reached MMI, the CE codes C2 (Administrative Closure) with the corresponding reason code “NM-Not at MMI”. The status effective date of the code is the date of the letter to the claimant informing him/her that an impairment rating cannot be made at this time due to the fact that he/she has not reached MMI.

(2) Once medical evidence is received in the DO indicating that the claimant is at MMI, development is resumed. When development for impairment is resumed, the ‘RD’ (Development Resumed) code will be entered into ECMS. The status effective date will be the date such evidence of MMI is received in the DO.

8. Pre-Recommended Decision Challenges. The CE may provide the claimant with a copy of the impairment rating report if he/she specifically requests a copy. The employee may either submit arguments making the challenge, and/or additional medical evidence of impairment. However, any additional impairment evaluation must meet the criteria discussed in above before the CE considers it when making impairment determinations. In this instance, if the additional evaluation differs from the one already in the file, the CE must review the two reports in detail to determine which report has more probative value. In weighing the medical evidence, the CE must use his or her judgment in the analysis of the reports. If the reports appear to be of equal value, the CE may wish to refer the file to a DMC for additional consideration.

a. If the DMC opines that both impairment evaluations are of the same probative value, the CE may obtain a referee medical examination (please refer to Chapter 2-0300 “Developing and Weighing Medical Evidence” in the Procedure Manual).

9. Issuance of a Recommended Decision. The recommended decision must contain a thorough discussion of the impairment evidence submitted in the case. Therefore, if there is more than one evaluation in the file, the CE must provide a detailed discussion of the reason why one report was found to have more probative value (see discussion below) than another. This detailed discussion of probative value is necessary because if the employee submits additional impairment evidence to the Final Adjudication Branch, he or she will have the burden to prove that the additional impairment evidence has more probative value than the evaluation relied upon by the district office. Therefore, it is important for the discussion in the recommended decision to be thorough and complete.

10. Final Adjudication Branch (FAB) Development. Once the recommended decision on impairment has been issued and forwarded onto the Final Adjudication Branch for review, the employee may submit new medical evidence or an additional impairment evaluation to challenge the impairment determination in the recommended decision.

a. The employee bears the burden of proving that the

additional impairment evidence has more probative value

than the evaluation used by the district office to determine the impairment rating.

b. Probative Value Determinations. The FAB representative must take many variables into consideration when weighing impairment evaluations for probative value. While by no means exhaustive, the FAB representative reviews impairment evaluations to determine the following: that the opining physician possesses the requisite skills and requirements to provide a rating as set out under the regulations; that the evaluation was conducted within 1 year of receipt at DEEOIC; whether the report addresses the covered illness; and whether the whole body percentage of impairment is listed with a clearly rationalized medical opinion as to its relationship to the covered illness. In general, probative means “believable” and the FAB representative reviews each report to determine which one, on the whole, is more believable based upon the medical rationale provided and the evidence at hand overall.

(1) Example. The RD is based upon Dr. X’s impairment rating of the employee, 20% whole body due to the covered illness asbestosis. Dr. X’s opinion is clearly rationalized and provides a detailed analysis as to how the medical findings were deduced, addressing the covered illness and its relation to the rating. The employee submits an impairment rating from Dr. Y that finds a 30% whole body impairment due to asbestosis and other unrelated conditions. The report provides little analysis as to how the medical findings were reached and does not provide a rationale as to why the 30% rating is related to the covered illness of asbestosis. Both doctors possess the requisite skills and the reports were submitted timely. The FAB representative gives credence to the impairment rating prepared by Dr. X that was accepted in the recommended decision, as it of more probative value than the report submitted by Dr. Y. The clear medical rationale provided by Dr. X lends more “believability” to the rating than that provided by Dr. Y. In such an instance the FAB accepts the rating accepted by the DO in the RD as having more probative value.

c. In addition to the impairment rating(s), the FAB reviews all the relevant evidence of impairment in the case record and bases its determination on the evidence it finds to be most probative.

d. The Final Decision must contain detailed rationale and discussion for any determination concerning multiple impairment evaluations. The final decision also includes the evaluation of all relevant evidence and argument(s) in the record.

11. Additional Filings for Impairment Benefits. A covered Part E employee previously awarded impairment benefits may file a claim for additional impairment benefits. This claim must be based on an increase in the impairment rating from the impairment rating of the accepted covered illness or illnesses that formed the basis for the last award of impairment benefits.

a. The covered Part E employee may not submit a Form EE-10 (Exhibit 6) for an increase in the impairment rating earlier than two years from the date of the last award of impairment benefits (i.e. date of the final decision). However, there is an exception to this requirement when the DO adjudicates a claim for additional impairment based upon a new covered illness not included in the previous award.

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