Impermanent Issues in Permanent Impairments – Dana K. Smith, Esq.

In theory, permanent impairments can be simple. The claimant suffers a work-related injury, reaches maximum medical improvement (“MMI”) after a period of treatment, and the treating doctor assigns an impairment rating based on the AMA Guides to the Evaluation of Permanent Impairment.

The claimant discloses the evaluation to the carrier and, from there, it’s just a basic math problem – the number of weeks assigned to the body party under RSA 281-A:32 times the percentage of loss assigned by the doctor times the workers’ compensation rate. The Memo of Permanent Impairment Award is filed by the carrier, approved by the Department of Labor, and the injured worker is paid the award. But, as we all know, it’s rarely (if ever) that easy due to a myriad of potential pitfalls that complicate the seemingly straightforward process. However, despite those complicated issues, in some cases there are practical solutions.

First, what if the claimant’s treating doctor doesn’t perform permanent impairment evaluations? Lab 506.02(k)(2) provides some guidance on this, noting that if the treating doctor doesn’t perform permanency evaluations, “the physician may refer the employee to a physician that does.” In some cases, this issue is easily resolved by the treating provider referring the claimant to a different doctor at the same provider.

However, there’s often no doctor that performs permanency evaluations at that office. For practice purposes, we’ve had mixed success sending letters to treating doctors asking for a formal referral to an outside doctor. It’s mixed because some doctors are happy to do it, but others either just don’t respond or simply flat out refuse to provide the referral.

I buried the lede a bit, but the reason why these referrals are so important is that under Lab 506.02(k)(3), the carrier is only responsible to pay the cost of the “initial permanent impairment evaluation by the treating or referring physician.” Evaluations are expensive – especially so for an injured employee who in most cases is earning substantially less than they would be working. So, ensuring reimbursement is an important cost saving measure for claimants.

To the carrier’s credit, even cases where the treating doctor can’t do it and won’t refer it, they’re generally pretty good about reimbursing the cost if the claimant can show they tried to follow Lab 506.02(k)(2). So, make sure to copy them on those letters to the providers. Reaching out to the opposing counsel/adjuster to see if the parties can mutually agree to a doctor to perform the evaluation also may make practical sense to address the cost.

Another issue injured workers consistently run into with permanent impairment awards is whether their specific injury even qualifies for one under RSA 281-A:32. Put simply, while an injury may certainly affect the worker permanently, it does not mean they’re entitled to a permanent impairment award. Unless their injury is to a specifically referenced body part under the statute, they’re probably out of luck.

In my opinion, the most glaring examples are permanent mental health injuries or injuries to internal organs. While RSA 281-A:32, IX does permit awards for certain injuries to the brain, it’s limited to “cerebral or neurological impairment due to central nervous system injury.” Thus, things like post-traumatic stress disorder arguably fall outside the available awards. And the statute simply doesn’t reference things like injuries to the lungs or heart.

There has, however, been some recent movement on permitting awards for these types of injuries in certain cases. More specifically, RSA 281-A:32-a establishes the First Responder’s Critical Injury Benefit, which allows an additional payment of up to $125,000.00 for group II retirement members that suffer permanent losses to things like the lungs, heart, brain, or other internal organs along with impairments to certain senses such as speech, touch, taste, or smell. The process is different than a standard award, so if you represent police officers, EMTs, firefighters or other group II retirement member, this should be on your radar.

Another issue is the inverse — while the injury may to a body part listed under RSA 281-A:32, the AMA Guides may not account for it. More specifically, “[i]n order to reduce litigation and establish more certainty and uniformity in the rating of permanent impairment,” RSA 281-A:32, XIV specifically requires that evaluations be performed under the 5th Edition of the AMA Guides to the Evaluation of Permanent Impairment.

While it’s great to have uniformity, medical treatment is constantly evolving. For whatever reason, the one that always sticks with me is the Human Genome Project being in 2003 while I was in high school (which feels like forever ago now). But here’s a fun fact — the book doctors still use to determine permanency ratings in New Hampshire is older than the completed Human Genome Project, with the 5th Edition first being published in early 2001.

As a result, there are obviously certain treatments and surgeries that the guides never address. Thankfully, Rainville bridges that gap as the New Hampshire Supreme Court addressed a permanent impairment performed by a doctor for “an injury not recognized by the AMA Guides.” In re Rainville, 143 N.H. 624, 631 (1999).

Upon review, the honorable Court noted that the guides themselves specifically allowed a doctor to “deviate from the guidelines if … necessary to produce an impairment rating more accurate than the recommended formula can achieve.” Id. at 631-32. Resultingly, the Court held that the evaluating doctor “may use other methods not otherwise prohibited by the AMA Guides” where necessary, leaving the door open for many claimants where their injuries are not specifically recognized by the guides.

Obviously, these are just some of the issues that arise from the many moving parts associated with permanent impairment awards. We didn’t even get to objections and permanent impairment hearings, which could be a full day CLE all by themselves. And while there certainly isn’t a solution for everything, hopefully this provided a little bit of practical support to at least make some permanent impairment concerns only temporary.

About the Author: 
Dana K. Smith, Esq. is a Partner at Ward Law Group, PLLC in Manchester and focuses his practice solely on representing injured workers in the granite state. He’s currently serving his third term as Chairman of the New Hampshire Bar Association’s Workers’ Compensation Section and has been named one of New Hampshire’s Rising Stars in the legal field by Super Lawyers Magazines for six consecutive years.

Published in the NH Bar News, Vol. 37 No. 3, Page 30, August 19, 2026

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