Workers’ compensation

Workers’ compensation schemes assure that employees who are injured at work receive medical treatment for their injuries. They also pay benefits to workers who become disabled because of work injuries.

The disability benefits that workers’ compensation pays depend on whether the disability is temporary or permanent. Benefits also depend on whether the disability is partial or total. Those disability categories combine in four different ways: temporary total disability (TTD), temporary partial disability (TPD), permanent partial disability (PPD), and permanent total disability (PTD).

Permanent total disability is the least common of those four categories of disability benefits. Understanding the criteria for an award of disability benefits will help work injury victims understand whether they are a candidate for PTD benefits.

Temporary vs. Permanent Disability

A disability is temporary when the injury that causes the disability is expected to heal. A disability is permanent when healing ends but an impairment remains.

Workers’ compensation law awards different kinds of benefits to workers who have temporary and permanent disabilities. An injured employee is temporarily disabled when the employee cannot return to the employee’s former job and earn the employee’s former wage. 

Temporary disability benefits replace a portion of the employee’s lost income while the employee is recovering from the injury. They last until the disability ends and the employee returns to work, or until the injury has healed as much as it is ever likely to heal. However, temporary disability benefits must usually end after two years even if an injury is still healing.

Permanent disability benefits are paid when an employee remains impaired by a work injury after the injury has stopped healing. Benefits are based on the severity of the impairment and are often subject to negotiation with the employer’s insurance company. Workers’ compensation attorneys use their knowledge and experience to negotiate from a position of strength.

Total vs. Partial Disability

Whether a disability caused by a work injury is classified as total or partial generally depends on whether the employee can work for wages despite the injury. A total disability prevents the injury victim from performing any kind of wage-paying work. 

An injury victim with a partial disability is capable of working. The victim might be able to return to his or her former job, to the former job as modified to accommodate the disability, or to a different job. As a general rule, if the victim is capable of earning income from employment, the victim does not have a total disability.

Most workers who suffer from a permanent work-related disability receive permanent partial disability benefits. Those benefits are relatively common. Permanent total disability benefits, on the other hand, are uncommon.

Permanent Total Disability Benefits

Disabled employees who are granted PTD benefits receive two-thirds of their average weekly wage until one of the following occurs:

  • they become capable of working for wages;
  • they reach the age of 75 (unless they do not qualify for Social Security benefits); or
  • they die.

It is rare for a work injury victim who begins receiving PTD benefits to return to work. However, doing so will disqualify the victim from receiving further PTD benefits, even if the wages earned would not disqualify a disabled person from receiving Social Security Disability Insurance benefits. 

Eligibility for PTD Benefits

Injury victims only qualify for PTD benefits if they are unable to engage in “at least” sedentary work within 50 miles from their home. The total disability that prevents the employee from working must be permanent.

The burden is usually on the employee to prove that it is impossible to engage in “at least” sedentary work within 50 miles of their residence. However, eligibility for PTD is presumed when a disability results from an injury that the legislature defined as “catastrophic.” 

When PTD eligibility is presumed, the employee need not prove an inability to work. Rather, the burden is on the employer to prove that the employee is capable of earning an income from employment within 50 miles of the employee’s residence.

Injuries that the legislature defines as catastrophic include:

  • Spinal cord injuries involving severe paralysis of an arm, a leg, or the trunk;
  • Amputations that prevent the effective use of an arm, a hand, a foot, or a leg;
  • Severe brain or closed-head injuries that cause severe sensory or motor disturbances, severe communication disturbances, severe complex integrated disturbances of cerebral function, severe episodic neurological disorders, or similarly severe symptoms.
  • Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands; or
  • Total or industrial blindness.

In all other cases, the employee must prove that the disabling injury will prevent the employee from engaging in gainful employment within 50 miles of the employee’s residence. 

Proof of Eligibility for PTD Benefits

Workers’ compensation insurance companies almost always contest PTD benefits unless the injury is one that requires a presumption of eligibility. Since PTD benefits cost the company considerably more than PPD benefits, insurers usually fight to avoid paying them.

Workers’ compensation lawyers typically rely on two kinds of evidence to prove eligibility for PTD benefits. Proof always starts with medical evidence. The injured worker’s treating physicians will define the physical and mental limitations that were caused by the victim’s work injury. Since the treating physician is selected by the employer, it is necessary in some cases to obtain an independent medial evaluation to obtain accurate information about the extent of the disability.

It may also be helpful to present the opinion of a vocational expert. Vocational experts compare the limitations described by physicians to the abilities that are required to perform the job duties of various kinds of sedentary employment. They then examine the jobs that are available within 50 miles of the employee’s residence. Vocational experts are often in the best position to present evidence that no sedentary employment that the disabled worker is capable of performing is available within that 50-mile radius.