Assessment and Quantum of Compensation

Categories of cases The assessment of compensation in a Motor Vehicle accident may be for the following categories : 1. Injury cases. 2. Fatal Cases.

3. Loss of Property.

Compensation in personal Injury cases

Compensation for pecuniary loss

Compensation for Non-Pecuniary Loss

Medical Expenses Loss of earning or Profit

Loss of future earning or profit

Compensation for Non-Pecuniary Loss

Mental and Physical pain,shock & suffering

Loss of amenities of life

Loss of expectation of life

How to assess compensation in injury cases.

The following factors have to be considered while awarding compensation:
1. Nature of injury. 2. Status and age of the person injured. 3. Percentage of Disablement. 4. Occupation of Injured.

Personal Injury Cases For Personal Injury cases compensation can be claimed under the Heads: 1. Pecuniary Damages. 2. Non-Pecuniary Damages.

Pecuniary Damages
Pecuniary damages are known as special damages and are generally designed to make good the pecuniary loss which is capacable of being calculated in terms of money.

Pecuniary Damages
1. Expenses incurred by the claimant in respect of injury 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 also incapability in the labour market, loss of earning on account of termination of service or discontinuance of any trade, business or profession. 4. Other material loss which may, require a special treatment or aid to the injured or claimant for the risk of life.

Non-Pecuniary Damages
Non Pecuniary damages are those which are incapable of being answered by arithmetical calculations

Non-Pecuniary Damages Non-Pecuniary damages or general damages include a number of sub-heads such as : 1.Damages for mental and physical shock, pain, suffering already suffered by the claimant or likely to suffer in future.

2.Damages to compensate for the loss of amenities of life which may include a variety of matters such as claimant may not be in position to walk, run, sit or loss of marriage prospects, sexual intercourse and other amenities in life;
3.Damages for loss of expectation of life i.e.,on account of injury the normal life of the person is shortened; and

Contd…..

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

Calculation of Percentage of disability in Injury cases.

At present only the medical aspect of disability i.e.,Physical impairment is evaluated by the doctor.
Social, Physiological and vocational activities/potentials are never considered while assessing disability. Physical impairment leads to functional limitation and functional limitation in turn leads to disability. Hence “impairment,”functional limitation and “disability “ have to be examined in light of their definitions by the W.H.O.

Impairment
Is a permanent or transitory physiological, or anatomical loss and/or abnormality. A missing or defective 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 and perpetual disturbances all come under this category.

Functional Limitation
Impairment may produce functional limitation(which may be „progressive‟ or „regressive‟) and or the total or partial inability to perform those activities necessary for motor, sensory or mental functions within the range and manner of which human being is normally capable such as walking, lifting loads, seeing, speaking, bearing, reading, writing, counting. A functional limitation may last for short time, a long time, may be permanent or reversible. It should be quantifiable whenever possible.

Disability
Is an existing difficulty in performing one or more activities which, in accordance with the subject‟s age, sex and normative social role, are generally accepted as essential, basic components of daily living such as self-care, social relations & economic activity. Disability may be short, long or permanent depending on functional limitation‟s duration. It should be noted that „functional limitation‟ or „impairment 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 and inability to perform physical functions.

Kinds of disability
Temporary total disability: The period during which the injured person is totally unable to work and received orthopedic or other medical treatment. •MAKES THE PATIENT BED RIDDEN. •LONG PLASTERED LIMBS. •LARGE OPEN WOUNDS. •MAJOR FRACTURES OF LOWER LIMBS.

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.

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.

GOVERNMENT BENEFITS: RESERVATIONS IN JOBS, SCHLORSHIPS. CONVEYENCE & RELATED FACILITIES RAIL,ROAD. INCOME TAX EXEMPTIONS. 80U. OTHER : COMPENSATION FOR: MOTOR INDUSTRIAL, ACCIDENTS, NEGLIGENCE.

DEGREES OF DISABILITY

MILD = Below 40%
MODERATE = Above 40% SEVERE = Above 75% TOTAL= 100% FOR GOVT. CONCESSIONS Above 40% IS REQUIRED.

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.

FRACTURE: LONG BONES LIKE TIBIA FIBULA MORE COMMONLY AFFECTED

Medical records The hospital medical record is a complete written record of a patients history, condition,

treatment and results of hospitalization.

Medical Records

Medico-legal register

Outpatient record

Inpatient record

Medico-legal register Personal particulars Time of arrival Identification mark Consent Conscious Smell of alcohol Physical examination finding Treatment

Patient accompanied
History of accident with time and place

Nature of Injury
Simple or Grievous

Out- Patient record

Personal particulars History of illness or accident Past history of any disease Clinical examination findings

Probable diagnosis Investigations Treatment Doctors initials

Inpatient record
Hospital identification sheet History sheet Treatment order sheet Progress sheet Nursing sheet Anesthesia notes Surgery notes Additional sheets Temperature chart Pulse,BPchart Input ,output chart Head injury chart Miscellaneous.

investigations

INPATIENT RECORDS-HISTORY SHEET
Personal data Chief complaint History of present illness Past history Personal history Family history Physical findings General examination Systemic examination Local examination Detail description of injury Diagnosis Initials

INPATIENT –TREATMENT SHEET
Date

Drugs, Dosage, Route of administration

Investigation required

Doctors initials

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

INPATIENT –ANESTHESIA NOTES

Identification data General condition of patient

Type of anesthesia
Duration Recovery

INPATIENT-OPERATION NOTES
Identification data Preoperative diagnosis Procedure name Surgeons name First and second assistants name Details of surgery , Initials of doctor

INPATIENT-NURSES NOTES
Identification data
Every day progress of patient nursing aspect Any time SOS to doctor

Initials

INPATIENT RECORDS-INVESTIGATION REPORTS Blood investigations Urine investigation Miscellaneous investigation

Discharge summary
Identification data Diagnosis Brief history of illness ,and patents progress during hospital stay

Investigations
Treatment advised Follow-up Condition on dischange

Medical record

Good record
Accurate
Appropriate

Bad record
Tampering
Alteration

Chronological
Relevant complete

No initials

What to look for in case sheet Identity Proof of reading report

History
Smell of alcohol Initials of treating doctor in all sheets Operating surgeons

Check the x-ray report
and date Comment on the age of the injury Cross check the bills and

Prescriptions initials
Investigations asked

investigations.

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

MEDICO-LEGAL AUTOPSY

AIMS
Identification Cause of death

Time since death
Age of injuries Ante mortem or postmortem injuries

MEDICO-LEGAL AUTOPSY

Cause of death
Furnish opinion Reserved pending No opinion

MEDICO-LEGAL AUTOPSY

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

Orthopedics ‘

The chief essential of any operation is that
it should not make the patient worse than

he was before submitting to it’

Diagnosis of orthopedic disorders

History Clinical examination

Radiological examination
Special investigation

Treatment of orthopedic disorder
No treatment

Non operative treatment

Operative treatment

Non-operative treatment
Rest Support Physiotherapy Local injection Drugs Manipulation

radiotherapy

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

Fracture is break in a bone
Greenstick fracture Closed fracture Open fracture Pathological fracture Stress fracture Birth fracture Anatomical types Transverse oblique Spiral Comminutated Stellate

Avulsion
Impacted depressed

Clinical types
Fresh fracture

Malunited fracture
Un-united fracture pathological

Fractures influencing healing
Imperfect mobilization Distraction Surgical intervention Infection Inadequate blood supply Interposition of soft tissues

Type of fracture
Type of bone

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

Complication of fracture
Late complication:
Malunion Nonunion Cross union Stiffness Contracture Post traumatic osteo arthrodesis

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 by

Govt. is authorized to issue a certificate?
What was the Length of the leg before surgery? What is the Length of the Leg after surgery?

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 MCBRIDE‟S 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?

Disability Questionnaires - Contd…
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?

Disability Questionnaires - Contd…
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?

Disability Questionnaires - Contd…
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?

Disability Questionnaires - Contd…
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?

Disability Questionnaires - Contd…
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?

Disability Questionnaires - Contd…
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)

Disability Questionnaires - Contd…
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

Guidelines for Evaluation of Impairment in Upper Limbs:

Permanent

Physical

1.The estimation of permanent impairment depends upon the measurement of functional impairment and is not expression of personal opinion. 2.The estimation and measurement must be made when 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 consists in measuring the loss of motion, muscle strength and co-ordinated activities.

Contd…

5.Measurement of loss of function of hand component consists 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 on the combination of the functional impairment of both components.

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%.If more 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%

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 by 0.30.If there has been loss of muscle of more than one joint,the values are added as has been described for R.O.M.

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 in the 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 by combining the values of R.O.M, Muscle strength & Co-ordinated activities.Using the combining formula: a+b (90-a)/90 a=higher value b= lower value

Hand component The total value of Hand component is 90%.The functional impairment of hand is expressed as loss of Prehension, loss of sensation, 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%),small object of 1”(3%) d)Spherical grasp-6%,tested for large object of 4”(3%),small object of 1”(3%) e)Hook grasp-5%,tested by asking the patient to lift a bag.

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 clinical method.

Guidelines for Evaluation of Permanent Physical Impairment in Lower Limbs: The lower extremity is divided into two components:Mobility component and stability component. The total value of mobility component is 90%.It includes range of movement 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 is weighted equally-0.30%

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 total body weight(W), scale „A” reading and scale „B‟ reading. The final value is obtained by formula: Difference in body weight/Total body weight x 90 In the Clinical method of evaluation nine different activities are to be tested as given in the proforma. Each activity is given a value of 10%

Extra Points
Extra Points are to be given for pain,deformities, contractures, loss of sensation and shortening, Maximum points to be added are 10%(excluding shortening.Details are follows:

a)Deformity: In functional position
In non-functional position b)Pain: Severe(grossly interfering with function) Moderate(moderately interfering with function) Mild(mildly interfering with function) c)Loss of sensation: complete loss Partial loss

3%
6% 9% 6% 3% 9% 6%

d)Shortening:First ½”
Every ½” beyond first ½” e)Complications:Superficial Complication Deep Complication

Nil
4% 3% 6%

Similarly we have guidelines for Permanent Physical Impairment of:

Evaluation

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.

Assessment of compensation in fatal cases In fatal Accident cases (death ) cases compensation may 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.

Meanings : 1.Loss of dependency: Means loss of income to the claimant due to the death of the deceased 2.Loss to estate: Loss of supervision of immovable property,inability to continue the business,expenses for medical treatment,transportation damages to the property due to accident and funeral expenses come under this head 3.Loss of gratuitous Services: Due to the death of the wife the husband may incur expenses to employ servants,cooks to do the house hold jobs.These items may be brought under this head.

Contd……

4.Loss of consortium: Means loss of life partner.For the loss of service,society & intercourse compensation may be claimed under this head. 5.Mental agony and shock: Due to the death ,the claimant might have suffered mental agony or shock.The quantum of Compensation may be granted under this head.

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

Modes of assessment in fatal cases
There are three methods for assessment compensation in fatal cases and they are: 1.Multiplier Method. of

2.Discounting Method.
3.Interest Capitalisation Method.

Multiplier Method Of all the methods the courts in India adopt multiplier method.In computing the amount of compensation the reasonable expectation of pecuniary benefits reducible to money value is taken into account.The circumstances which may pleaded in diminution should also be taken into account.In determining the quantum,the actual pecuniary loss of each claimant shall have to be balanced by any pecuniary advantage which might come to him by reason of the death person viz.against the actual pecuniary loss suffered by him.Sentimental damage,bereavement,pain& suffering have no place in calculation.From the income of the deceased the amount required for his personal living expenses shall be deducted.The balance will be turned into a lumpsum adopting a certain number of year‟s purchase.Even this sum is brought down on the basis of future uncertainties.

Contd…
This method is illustrated by following the formula Known as Lord Wright‟s Formula:

(A-E) x Y=Total compensation for loss of dependency as well as loss to the estate;
A represents the amount of net wages which the deceased was earning; E represents the expenditure incurred by the deceased for his own self and; Y represents the number of year‟s purchase.

Discounting Method

Under discounting method,the claims are grouped under two heads:

1.The sums,the deceased would have probably applied out of his income to the maintenance of his wife and family if he had not been killed and would have lived his full span of life;
2.The additional savings which the deceased would or might have left but for premature death and would have probably accrued to his wife and family.

Interest capitalisation Method
According to this method the annual loss to the dependants by the death of the deceased is determined and compensation is awarded in a sum which would fetch that amount of interest annually. It may be noted that his method is rarely used by the courts.

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