Part 1: Permanent Total Disability in Workers’ Compensation: Now What?

Issues concerning permanent total disability (PTD) benefits are a significant cost driver in workers’ compensation claims. When facing these claims, members of the claim management team and other interested stakeholders need to identify the issues early on, evaluate and develop defenses, and avoid costly mistakes.

This series of articles explores the many aspects of PTD claims and how to deal with them. The ultimate goal should be to treat all injured employees with respect and dignity while vigorously defending these claims to ensure excessive monies are not spent in handling the file or taking unnecessary risks at the hearing.

What is Permanent Total Disability?

Permanent total disability is a classification of indemnity benefits that signifies an employee cannot return to work in gainful employment. This entitles the employee to wage loss benefits for the remainder of their lifetime or to the point when they would otherwise have retired from the workforce. It is also a relatively newer system of benefits that evolved when employees were only entitled to Temporary Total Disability (TTD) benefits, but it became apparent the employee would never return to work.

PTD is a concept usually defined in statute but clarified in case law. While definitions vary, common themes include the following:

• Factors related to the employee’s post-injury condition;

• Age;

• Training and work experience (transferable work skills);

• Work available to the employee; and

• Ability to secure employment that is anything more than sporadic.

More recent statutory frameworks require showing a certain level or percentage of Permanent Partial Disability (PPD) to be rated as quality. In sum, the employee must be limited by the nature and extent of their work injury, restrictions on activity, and lack of transferable job skills to secure gainful employment near their pre-injury status.

What is Considered Permanent?

One issue surrounding the uncertainty of PTD claims and correctly handling them is whether the injury or condition needs to be “permanent.” This includes occupational exposure to chemicals, dust, and other airborne irritants. In other cases, there are concerns about common injuries to the spine and joints where conservative medical care will fully resolve the work injury.

There are also questions about whether an injury will be permanent during surgery. A typical example is a claim for PTD where the employee has only recently undergone surgery. Following any surgical intervention, there is an expected healing period and eventual finding of Maximum Medical Improvement (MMI).

Claims handlers, defense counsel, and other interested stakeholders must be mindful of these issues when handling cases involving a claim for PTD benefits.

\What is Vocationally Permanent?

The employee’s vocational status is another crucial point of contention in PTD claims. Some urban myths and legends prevent stakeholders from thoroughly analyzing their claims when making decisions on what to do next:

• Employees who have completed a vocational retraining program can still be determined to be PTD;

• Employees who might find future employment can still be determined to be PTD; and

• Employees without permanent work restrictions can still be determined to be PTD.

Issues concerning vocational permanency must be thoroughly analyzed against the jurisdiction’s statutes and case law to make better decisions.

What is Medically Permanent?

There are several issues one needs to consider regarding PTD claims when it comes to medical issues and future care and treatment.

• The need for future medical care, including surgical intervention;

• The willingness of the employee to undergo any future medical care. Remember, workers’ compensation laws typically cannot require an injured employee to undergo future care that is invasive, such as surgeries; and

• Medical care for a non-work-related condition is necessary to cure and relieve the effects of the work injury. Common examples include bariatric surgery for weight loss before a knee or joint replacement.

Failure to consider these issues can result in a finding of PTD and payment of excessive monies when holding a claim.

Concerns About Employing the Aging Workforce

Issues surrounding PTD can also be a barrier to the aging American workforce, as many older individuals have returned to the post-COVID-19 workplace. These issues include:

• Ability of an employee who has been judicially determined or stipulated to be PTD; or

• Non-work-related permanency ratings are often included to meet a statutory PPD threshold. Common issues concern disfigurements from motor vehicle accidents or women who have undergone hysterectomies.

Case law in various jurisdictions has also supported the position that someone already adjudicated PTD can make a second claim for such benefits following a separate work injury. Stakeholders handling claims of this nature should proceed with caution.

Conclusions

PTD benefits should raise concerns within any claim team seeking to reduce workers’ compensation program costs. Understanding the issue is the first step one needs to make before further analysis and defense can occur.

Michael Stack, CEO of Amaxx LLC, is an expert in workers’ compensation cost containment systems and provides education, training, and consulting to help employers reduce their workers’ compensation costs by 20% to 50%. He is co-author of the #1 selling comprehensive training guide “Your Ultimate Guide to Mastering Workers’ Comp Costs: Reduce Costs 20% to 50%.” Stack is the creator of Injury Management Results (IMR) software and founder of Amaxx Workers’ Comp Training Center. WC Mastery Training teaching injury management best practices such as return to work, communication, claims best practices, medical management, and working with vendors. IMR software simplifies the implementation of these best practices for employers and ties results to a Critical Metrics Dashboard.

Contact: [email protected].

Workers’ Comp Roundup Blog: http://blog.reduceyourworkerscomp.com/

Injury Management Results (IMR) Software: https://imrsoftware.com/

©2024 Amaxx LLC. All rights reserved under International Copyright Law.

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.