Assessment of Disability & Compensation

7/31/2019 Assessment of Disability & Compensation

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Assessment and Quantum of Compensation


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Categories of cases

The assessment of compensation in a Motor Vehicleaccident may be for the following categories :

1. Injury cases.

2. Fatal Cases.

3. Loss of Property.


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Compensation in personal Injury cases

Compensation forpecuniary loss

Compensatio

n forNon-Pecuniary Loss

Medical ExpensesLoss ofearning orProfit

Loss of futureearning or profit


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Compensation for Non-Pecuniary Loss

Mental andPhysicalpain,shock &suffering

Loss of amenitiesof life

Loss ofexpectation oflife


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How to assess compensation in injury cases.

The following factors have to be considered whileawarding compensation:

1. Nature of injury.2. Status and age of the person injured.

3. Percentage of Disablement.

4. Occupation of Injured.


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Personal Injury Cases

For Personal Injury cases compensation can be claimedunder the Heads:

1. Pecuniary Damages.

2. Non-Pecuniary Damages.


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Pecuniary Damages

Pecuniary damages are known as special damages andare generally designed to make good the pecuniaryloss which is capacable of being calculated in terms ofmoney.


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Pecuniary Damages

1. Expenses incurred by the claimant in respect ofinjury which may include medical attendance.

2. Loss of earning or profit upto the date of trail.

3. Loss of earning capacity which may include

incapability to earn in future years and alsoincapability in the labour market, loss of earning onaccount of termination of service or discontinuance ofany trade, business or profession.

4. Other material loss which may, require a specialtreatment or aid to the injured or claimant for the riskof life.


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Non-Pecuniary Damages

Non Pecuniary damages are those which are incapableof being answered by arithmetical calculations


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Non-Pecuniary Damages

Non-Pecuniary damages or general damages include anumber of sub-heads such as :

1.Damages for mental and physical shock, pain, sufferingalready suffered by the claimant or likely to suffer infuture.

2.Damages to compensate for the loss of amenities of lifewhich may include a variety of matters such as claimant

may not be in position to walk, run, sit or loss of marriageprospects, sexual intercourse and other amenities in life;

3.Damages for loss of expectation of life i.e.,on accountof injury the normal life of the person is shortened; and


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Contd..

4.inconvenience, hardship, discomforts, disappointment,frustration and mental agony in life.


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Calculation of Percentage of disability in Injury cases.

At present only the medical aspect of disabilityi.e.,Physical impairment is evaluated by the doctor.

Social, Physiological and vocational activities/potentialsare never considered while assessing disability.

Physical impairment leads to functional limitation and

functional limitation in turn leads to disability. Henceimpairment,functional limitation anddisability haveto be examined in light of their definitions by theW.H.O.


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Impairment

Is a permanent or transitory physiological, oranatomical loss and/or abnormality. A missing ordefective part, tissue organ, or mechanism of the body,such as an amputed limb, paralysis after polio,myocardial infraction, cerebralvascular thrombosis,restricted pulmonary capacity, diabetes, myopia,disfigurement, mental retardation, hypertension andperpetual disturbances all come under this category.


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Functional Limitation

Impairment may produce functional limitation(whichmay beprogressiveorregressive) and or the total orpartial inability to perform those activities necessaryfor motor, sensory or mental functions within the

range and manner of which human being is normallycapable such as walking, lifting loads, seeing,speaking, bearing, reading, writing, counting. Afunctional limitation may last for short time, a long

time, may be permanent or reversible. It should bequantifiable whenever possible.


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Disability

Is an existing difficulty in performing one or more activities which,in accordance with the subjects age, sex and normative social role,are generally accepted as essential, basic components of dailyliving such as self-care, social relations & economic activity.Disability may be short, long or permanent depending on functional

limitations duration. It should be noted that functionallimitationorimpairment is causative/contributory factor in disability.

In legal parlance disability is a permanent injury to body for which

the person should or should not be compensated.

In medical sense of the term disability is physical impairement andinability to perform physical functions.


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Kinds of disability

Temporary total disability:The period during which the injured person is totally unable towork and received orthopedic or other medical treatment.

MAKES THE PATIENT BED RIDDEN.LONG PLASTERED LIMBS.

LARGE OPEN WOUNDS.

MAJOR FRACTURES OF LOWER LIMBS.
http://www.hwbf.org/hwb/conf/georg18/F1.jpg


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Kinds of disability

Temporary partial disability:

The period when recovery has reached a stage of

improvement so that the person may begin some

gainful occupation.DISABILITY IS LIMITED .

CAN ATTEND SOME PORTION OF THE JOB,DUTY-EARNING MAY BE

STARTED.

PLASTER REMOVED AND PHYSIOTHERAPY GOING ON.

PERSON WITH TOURING DUTY CAN ATTEND OFFICE WORK BUT NOT

TRAVELLING.


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Kinds of disability

Permanent disability:

causing life long limitation on the victim.

Permanent loss or damage of use of some part of the body after the stage of

maximum improvement from treatment has been reached and the condition

stationery constitutes.

Permenant partial disability:

Amputation of a finger.

Loss of one eye.

Shortening of a limb.

Restristed or stiff joint.

Permenant Total disability :equivalent to 100%.

Permenant paralysis of all 4 limbs due to spinal injury.

Loss of both the eyes.


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GOVERNMENT BENEFITS:

RESERVATIONS IN

JOBS, SCHLORSHIPS.

CONVEYENCE & RELATED FACILITIES RAIL,ROAD.

INCOME TAX EXEMPTIONS. 80U.

OTHER :

COMPENSATION FOR: MOTOR INDUSTRIAL,ACCIDENTS, NEGLIGENCE.


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DEGREES OF DISABILITY

MILD = Below 40%

MODERATE = Above 40%

SEVERE = Above 75%

TOTAL= 100%

FOR GOVT. CONCESSIONS Above 40% IS REQUIRED.


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DISABILITY CERTIFICATE SHOULD INCLUDE:

Name, Age, Sex, Address, identification mark.

Existing disabilities, deformities -calculation

% of disability of the limb or whole body.

Issued for -------- purpose only.

Mention scale or law used for calculation.

Comments if any.


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FRACTURE: LONG BONES LIKE TIBIA FIBULA MORECOMMONLY AFFECTED


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Medical records

The hospital medical record is a complete

written record of a patients history, condition,treatment and results of hospitalization.


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Medical Records

Medico-legal register

Outpatient record

Inpatient record


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Medico-legal register

Personal particulars

Time of arrival

Identification mark

Consent

Patient accompanied

History of accident with time

and place

Conscious

Smell of alcohol

Physical examination finding

Treatment

Nature of Injury

Simple or Grievous


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Out- Patient record

Personal particulars

History of illness or accident

Past history of any disease

Clinical examination findings

Probable diagnosis

Investigations

Treatment

Doctors initials


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Inpatient record

Hospital identification sheet

History sheet

Treatment order sheet

Progress sheetNursing sheet

Anesthesia notes

Surgery notes

investigations

Additional sheets

Temperature chart

Pulse,BPchart

Input ,output chartHead injury chart

Miscellaneous.


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INPATIENT RECORDS-HISTORY SHEET

Personal dataChief complaint

History of present illness

Past history

Personal history

Family history

Physical findingsGeneral examination

Systemic examination

Local examination

Detail description of injury

Diagnosis

Initials


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INPATIENT TREATMENT SHEET

Date

Drugs, Dosage, Route of administration

Investigation required

Doctors initials


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INPATIENT PROGRESS SHEET

Every day progress of patient

Initials of doctor

Cross reference to other doctors and their opinion

From day of admission to discharge


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INPATIENT ANESTHESIA NOTES

Identification data

General condition of patient

Type of anesthesia

Duration

Recovery


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INPATIENT-OPERATION NOTES

Identification data

Preoperative diagnosis

Procedure name

Surgeons name

First and second assistants name

Details of surgery ,

Initials of doctor


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INPATIENT-NURSES NOTES

Identification data

Every day progress of patient nursing aspect

Any time SOS to doctor

Initials


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INPATIENT RECORDS-INVESTIGATION REPORTS

Blood investigations

Urine investigation

Miscellaneous investigation


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Discharge summary

Identification data

Diagnosis

Brief history of illness ,and patents progress during hospital stay

Investigations

Treatment advised

Follow-up

Condition on dischange


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Medical record

Good record

Accurate

Appropriate

Chronological

Relevant

complete

Bad record

Tampering

Alteration

No initials


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What to look for in case sheet

Identity

History

Smell of alcohol

Initials of treating doctor

in all sheets

Operating surgeons

Prescriptions initials

Investigations asked

Proof of reading report

Check the x-ray report

and date

Comment on the age of

the injury

Cross check the bills and

investigations.


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JUST THINK IT OVER?

The doctor deposing:

Not able to identify the patient

No proof in case sheets

No proof of operation

No proof of interpretation of results

No prescription issued

No counter signature


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MEDICO-LEGAL AUTOPSY

AIMS

Identification

Cause of death

Time since death

Age of injuries

Ante mortem or postmortem injuries


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Cause of death

Furnish opinion

Reserved pending

No opinion


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Just think about it

Age of the patient

Age of the injury

Cross check autopsy findings and case sheet findings

Can similar injury produced by other mechanisms

Is death due trauma or disease


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Orthopedics

The chief essential of any operation is that

it should not make the patient worse than

he was before submitting to it


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Diagnosis of orthopedic disorders

History

Clinical examination

Radiological examination

Special investigation


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Treatment of orthopedic disorder

No treatment

Non operative treatment

Operative treatment


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Non-operative treatment

Rest

Support

Physiotherapy

Local injection

Drugs

Manipulation

radiotherapy


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Orthopedic-operative treatment

Osteotomy-cutting a bone

Arthodesis-joint fusion

Arthoplasty-construction of a new movable joint

Bone grafting

Tendon transfer operation

Tendon grafting operation


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Fracture is break in a bone

Greenstick fracture

Closed fracture

Open fracture

Pathological fracture

Stress fracture

Birth fracture

Clinical types

Fresh fractureMalunited fracture

Un-united fracture

pathological

Anatomical typesTransverse oblique

Spiral

Comminutated

Stellate

Avulsion

Impacted

depressed


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Fractures influencing healing

Imperfect mobilization

Distraction

Surgical interventionInfection

Inadequate blood supply

Interposition of soft tissues

Type of fracture

Type of bone


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Duration of immbolisation

Children: upper limb 3-4 weeks

lower limb 6-8 weeks

Adults: upper limb 6-8 weeks

lower limb 12-14 weeks


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Complication of fractureLate complication:

Malunion

Nonunion

Cross union

Stiffness

Contracture

Post traumatic osteo arthrodesis


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Disability Questionnaires

Example of Questionnaires: -Whether you has examined victim?

Whether you are was treating Doctor?

When was the injured for the first and last examined by

you?

What is his position as on today?

Are you authorized to issue a disability certificate?

I suggest to you that only a medical board constituted byGovt. is authorized to issue a certificate?

What was the Length of the leg before surgery?

What is the Length of the Leg after surgery?


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Disability Questionnaires - Contd

You have not mentioned in your certificate or chief

examination, whether the disability is permanent or

partial?

Whether the disability is for the Particular Limb or whole

body?

What are the Guidelines as per MCBRIDES for assessing

the disability of lower limbs? Have you stated the same in

your chief examination?

Whether the fracture is external or internal? Have you

mentioned so in your medical records?


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Do you admit that the disability in case of lower limbs

depends on stability and mobility components? Have you

stated the same in your chief examination?

Do you agree that disability depends upon impairment and

functional Limitation?

Functional limitation can be progressive or regressive,

what is the position on the date of the certificate and what

the position today?

Do you agree that the estimation of disability must be

assessed when the physical condition is fixed and

unchangeable?


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Do you agree that the estimation of disability is not an

expression of personal opinion?

Whether the Petitioner requires more active treatment or

rehabilitation treatment?

Has the injury reached its maximum improvement? Have

you stated the same in your chief examination?

Whether you have taken fresh X-Rays?

How the disability was calculated?

Which Method you have followed?


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Any improvement is possible?

Any treatment is possible?

Will the treatment improve the disability?

Has the injury reached the stationery condition? Have you

stated the same in your chief examination?

Are you aware of the guidelines issued by the Govt. India

(Ministry of Social Justice and Empowerment) for

assessment of Physical and mental disability?

Are you aware of Persons with disabilities (equal

opportunities, Protection of rights) and full Participation

Act, 1995?


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Whether the patient was advised for physiotherapy?

Whether the patient has followed the advice of

physiotherapy?

Whether non performance of physiotherapy lead to higher

disability?

If physiotherapy is advice, where it has been mentioned?

When was the patient examined for assessment of

disability?

When was the certificate issued?

How many patient you examined per day?


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How many disability certificate you issue per day?

What is your style of noting the ROM and assessment of

disability?

Whether those noting is brought together today?

When the patient comes at your hospital, whether his

entry is recorded in OPD register?

If not, are you ready to produce these documents?


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Had you checked Out Patient / Inpatient Records?

Can you produce Out Patient / Inpatient Records? (if injured has

taken treatment in his hospital)

Had you checked inpatient progress sheet? (if so)

Can you produce inpatient progress sheet? (if injured has taken

treatment in his hospital)


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Had Checked inpatient operative notes? (if so)

Can you produce inpatient operative notes?

Had you checked Case Sheet & Discharge card?

Can you produce Case Sheet & Discharge card?

Had you checked OLD X-Ray Films & Radiological reports?

If need be, we need to stop the cross examination and

recall after the documents are being submitted by the

witness


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Guidelines for Evaluation of Permanent PhysicalImpairment in Upper Limbs:

1.The estimation of permanent impairment dependsupon the measurement of functional impairment and is

not expression of personal opinion.2.The estimation and measurement must be madewhen the clinical condition is fixed and unchangeable.

3.The upper extremity is divided into two component

parts: the arm component and the hand component.

4.Measurement of the loss of arm component consistsin measuring the loss of motion, muscle strength andco-ordinated activities.


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Contd

5.Measurement of loss of function of hand componentconsists in determining Prehension, sensation &strength. For estimation of prehension Opposition,lateral pinch, cylindrical grasp, spherical grasp and

hook grasp have to be assessed.

6.The impairment of the entire extremity depends onthe combination of the functional impairment of both

components.


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Arm Component

Total value of arm component is 90%.

A)Principles of evaluation of Range of motion of joints:

1.The value for maximum R.O.M. in the arm component is 90%.

2.Each of the three joints of the arm is weighed equally 30%.Ifmore than one joint is involved,same method is applied,and losses

in each of the affected joints are added. For example

Loss of abduction of the shoulder=60%

Loss of extension of the wrist=40%

Then,loss of range of motions for the arm=

(60x0.30) + (40x0.30)=30%


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B)Principles for Evaluation of strength of muscles:

1.Strength of muscles can be tested manually like 0-5 grading.

2.Manual muscle gradings can be given percentages like:

0-100%

1-80%2-60%

3-40%

4-20%

5-0%

3.The mean percentage of muscle strength loss is multiplied by0.30.If there has been loss of muscle of more than one joint,thevalues are added as has been described for R.O.M.


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C)Principles of Evaluation of Co-ordinated activities:

1.The total value for co-ordinated activities is 90%

2.Ten different co-ordinated activities are to be tested as given inthe proforma.

3.Each activity has a value___%.

D)Combining values for the Arm component:

The value of loss of function of arm component is obtained bycombining the values of R.O.M, Muscle strength & Co-ordinatedactivities.Using the combining formula: a+b (90-a)/90

a=higher value

b= lower value


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Hand component

The total value of Hand component is 90%.The functional

impairment of hand is expressed as loss of Prehension, loss ofsensation, loss of strength.

Principles for Evaluation of Prehension:

Total value of prehension is .30%.It includes:

a)Opposition-8%,tested again.Each finger is given 2%.

b)Lateral Pinch-5%,tested by asking the patient to hold a key.

c)Cylindrical grasp-6%,tested for large object of 4(3%),smallobject of 1(3%)

d)Spherical grasp-6%,tested for large object of 4(3%),smallobject of 1(3%)

e)Hook grasp-5%,tested by asking the patient to lift a bag.


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Principles of evaluation of sensation:Total value of sensation is

30% it includes:

1.Radial side of thumb-4.8%

2.Ulnar side of thumb-1.2%

3.Radial side of each finger-4.8%

4.Ulnar side of each finger-1.2%

Principles of Evaluation of strength;

a)Grip strength-20%

b)Pinch strength-10%

Strength will be tested with hand dynamo-meter or by clinicalmethod.


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Guidelines for Evaluation of Permanent Physical Impairment in

Lower Limbs: The lower extremity is divided into twocomponents:Mobility component and stability component.

The total value of mobility component is 90%.It includes range ofmovement and muscle strength.

The value of maximum R.O.M in the mobility component is 90%.

Each of the three joints hip,knee,foot-ankle component isweighted equally-0.30%


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Stability component:

The total value of stability component is 90%

It is tested by 2 methods:

a)Based on scale method.

b)Based on clinical method.

Three different readings in Kgs are taken measuring the totalbody weight(W), scale A reading and scale B reading. Thefinal value is obtained by formula:

Difference in body weight/Total body weight x 90In the Clinical method of evaluation nine different activitiesare to be tested as given in the proforma. Each activity is givena value of 10%


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Extra Points

Extra Points are to be given for pain,deformities, contractures, loss ofsensation and shortening, Maximum points to be added are10%(excluding shortening.Details are follows:

a)Deformity: In functional position 3%

In non-functional position 6%

b)Pain: Severe(grossly interfering with function) 9%

Moderate(moderately interfering with function) 6%

Mild(mildly interfering with function) 3%

c)Loss of sensation: complete loss 9%

Partial loss 6%

d)Shortening:First Nil

Every beyond first 4%

e)Complications:Superficial Complication 3%

Deep Complication 6%


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Similarly we have guidelines for Evaluation ofPermanent Physical Impairment of:

1.Trunk(Spine)

2.Amputees.

3.Neurological Conditions.

4.Facial Injuries.

5.Burns of Head and Neck.

6.Burns of Trunk and genitalia.

7.Cardio-Pulmonary diseases.


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Assessment of compensation in fatal cases

In fatal Accident cases (death ) cases compensationmay be claimed under the following heads:

1.Loss of Dependency.

2.Loss of estate of the deceased.

3.Loss of Gratuitous services.

4.Loss of consortium.

5.Mental agony and shock.

6.Loss of Happiness affection ,love and care.


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1.Loss of dependency: Means loss of income to theclaimant due to the death of the deceased

Meanings :

2.Loss to estate: Loss of supervision of immovableproperty,inability to continue the business,expenses for

medical treatment,transportation damages to theproperty due to accident and funeral expenses comeunder this head

3.Loss of gratuitous Services: Due to the death ofthe wife the husband may incur expenses to employservants,cooks to do the house hold jobs.Theseitems may be brought under this head.


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Contd

4.Loss of consortium: Means loss of life partner.For theloss of service,society & intercourse compensation maybe claimed under this head.

5.Mental agony and shock: Due to the death ,theclaimant might have suffered mental agony orshock.The quantum of Compensation may be grantedunder this head.

6.Loss of happiness, love, affection and care: Due to thedeath of the deceased the claimant may lose happiness,love and affection. compensation may be granted underthis head.


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Modes of assessment in fatal cases

There are three methods for assessment ofcompensation in fatal cases and they are:

1.Multiplier Method.

2.Discounting Method.3.Interest Capitalisation Method.


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Multiplier Method

Of all the methods the courts in India adopt multiplier method.In

computing the amount of compensation the reasonable expectationof pecuniary benefits reducible to money value is taken intoaccount.The circumstances which may pleaded in diminutionshould also be taken into account.In determining the quantum,theactual pecuniary loss of each claimant shall have to be balanced by

any pecuniary advantage which might come to him by reason of thedeath person viz.against the actual pecuniary loss suffered byhim.Sentimental damage,bereavement,pain& suffering have noplace in calculation.From the income of the deceased the amountrequired for his personal living expenses shall be deducted.The

balance will be turned into a lumpsum adopting a certain numberofyears purchase.Even this sum is brought down on the basis offuture uncertainties.


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Contd

This method is illustrated by following the formula

Known as Lord Wrights Formula:

(A-E) x Y=Total compensation for loss of dependency aswell as loss to the estate;

A represents the amount of net wages which thedeceased was earning;

E represents the expenditure incurred by the deceasedfor his own self and;

Y represents the number ofyears purchase.


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Discounting Method

Under discounting method,the claims are grouped

under two heads:

1.The sums,the deceased would have probably appliedout of his income to the maintenance of his wife andfamily if he had not been killed and would have lived

his full span of life;

2.The additional savings which the deceased would ormight have left but for premature death and wouldhave probably accrued to his wife and family.


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Interest capitalisation Method

According to this method the annual loss to thedependants by the death of the deceased is determinedand compensation is awarded in a sum which wouldfetch that amount of interest annually.

It may be noted that his method is rarely used by thecourts.


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THANKS

Assessment of Disability & Compensation

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