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WPI155.08Permanent Partial Disability—Categories of Impairment

6A WAPRAC WPI 155.08Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 155.08 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
July 2019 Update
Washington State Supreme Court Committee on Jury Instructions
Part XI. Workers' Compensation
Chapter 155. Workers' Compensation
WPI 155.08 Permanent Partial Disability—Categories of Impairment
Permanent partial disability is a loss of bodily function to a part or parts of the body, proximately caused by the [industrial injury] [occupational disease].
If the part of the body involved is a part that cannot be amputated, then loss of bodily function is measured by levels called “categories of impairment.” Assessment of loss of bodily function is made by comparing the condition of the injured worker with the conditions described in the categories and selecting the most appropriate category.
Based on the evidence, select the one category that most accurately indicates the level of permanent impairment proximately caused by the [industrial injury] [occupational disease] for each area of the body listed. When more than one category may be applicable to impairment of a given area of the body, select the category that most accurately reflects the overall level of impairment of that area.
The following categories are to be compared in this case:
(Insert applicable WAC categories.)
NOTE ON USE
Use this instruction for injuries occurring, and occupational diseases deemed to have arisen, after October 1, 1974 for which a category rating system exists. To determine the date upon which an occupational disease is deemed to have arisen, see the Comment.
Use WPI 155.08.01 (Permanent Partial Disability—No Categories of Impairment) for (1) injuries occurring and occupational diseases deemed to have arisen between July 1, 1971, and October 1, 1974, and (2) injuries or diseases arising thereafter if they involved only conditions that have not been assigned a category and must be rated as a percentage of amputation value or total bodily impairment.
If the case involves, in addition to a condition ratable by category, a condition ratable by comparison to amputation value or by comparison to total bodily impairment, instructions for both rating systems must be given using this instruction as well as WPI 155.08.01 (Permanent Partial Disability—No Categories of Impairment), with appropriate modifications.
Do not use this instruction for cases involving loss of sight or hearing only. If mental disability is involved, or the case is an aggravation case, this instruction will also have to be modified.
Use bracketed material as applicable.
COMMENT
RCW 51.32.080; WAC 296-20-220.
Permanent partial and permanent total disability are two separate concepts. See Ellis v. Dep't of Labor & Indus., 88 Wn.2d 844, 567 P.2d 224 (1977). The determination to be made by the jury in establishing permanent partial disability is whether the worker has suffered a loss of bodily function, whereas permanent total disability involves a determination whether the worker's earning capacity is lost as a result of an occupational injury or disease. See Franks v. Dep't of Labor & Indus., 35 Wn.2d 763, 215 P.2d 416 (1950); Fochtman v. Dep't of Labor & Indus., 7 Wn.App. 286, 499 P.2d 255 (1972). It is error to consider loss of earning power in fixing a permanent partial disability award. Cayce v. Dep't of Labor & Indus., 2 Wn.App. 315, 467 P.2d 879 (1970).
RCW 51.32.080(3) directs the Department of Labor and Industries to establish rules classifying permanent partial disabilities in proportion to total bodily impairment. Pursuant to this direction the Department has promulgated a categorical rating system found at WAC 296-20-200 et seq. to be used by physicians for specified disabilities. The regulations establishing these categories were upheld in Brannan v. Dep't of Labor & Indus., 104 Wn.2d 55, 700 P.2d 1139 (1985), and Vliet v. Dep't of Labor & Indus., 30 Wn.App. 709, 638 P.2d 112 (1981). Moreover, it is not error to instruct that disability is to be determined according to the categories set forth in WAC 296-20-200 et seq. Vliet v. Dep't of Labor & Indus., 30 Wn.App. 709. If the WAC categories are to be used by the jury in determining disability, appropriate instructions must be provided to the jury that set forth the categories.
In actions involving the loss of sight or hearing, the jury should be instructed under RCW 51.32.080(2) to determine the percentage of loss of sight or hearing. In actions involving disabilities for which no category, amputation value, or other special rating method is specified, a rating for unspecified disability is done by comparison to total bodily impairment. See WPI 155.08.01 (Permanent Partial Disability—No Categories of Impairment). Persistent variable respiratory impairment was ratable under WAC 296-20-370(1)(d) as a percentage of total bodily impairment prior to March 1, 1994. If an action involves an “aggravated” injury or disease, see WPI 155.11 (Aggravation—Prior Award) or WPI 155.12 (Aggravation—No Prior Award).
WAC 296-20-220 provides guidance for the selection of categories of impairment. Further instruction in this regard is left to the discretion of the judge.
To determine the date when an occupational disease is deemed to have arisen, see RCW 51.32.180 and WAC 296-14-350. See also Dep't of Labor & Indus. v. Landon, 117 Wn.2d 122, 814 P.2d 626 (1991).
For the applicability of this instruction when total permanent disability is also in issue, see Allison v. Dep't of Labor & Indus., 66 Wn.2d 263, 401 P.2d 982 (1965); Dowell v. Dep't of Labor & Indus., 51 Wn.2d 428, 319 P.2d 843 (1957); and Orr v. Dep't of Labor & Indus., 10 Wn.App. 697, 519 P.2d 1334 (1974).
WAC 296-20-220(1)(g) provides in part that when more than one category may be applicable, the category that most accurately reflects the overall level of impairment shall be selected.
This instruction was formerly numbered WPI 155.08.01.
[Current as of November 2016.]
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