Permanent Total Disability: What Happens If You Can Never Work Again After An Injury
This section will talk about the Iowa work comp law concerning permanent total disability and the strategic and evidentiary issues that come into play when a worker is severely injured.GENERAL LAW ON PERMANENT TOTAL DISABILITY
Iowa workers’ compensation law provides that if an injured worker cannot return to employment after an injury, then the injured worker is entitled to receive permanent total disability payments. The maximum number of weeks of permanent partial disability benefits that a worker can receive is 500 weeks. By contrast, if a worker is found to have suffered permanent total disability, then the worker is entitled to receive weekly perm total benefits for the rest of their life. The perm total benefits do not stop after 500 payments. The perm total benefits do not stop when the worker turns 65. The perm total payments only stop when the worker passes away.
There are two main types of permanent total disability under Iowa law. First, the “traditional” type of permanent total disability is found to have occurred when the injury “wholly disables the employee from performing work that the employee’s experience, training, education, intelligence and physical capacities would otherwise permit the employee to perform.” Under Iowa law total disability does not mean a state of absolute helplessness. Instead, the emphasis is on whether the employee can perform the type of work that the injured worker traditionally had been suited to perform.
The second type of permanent total disability is called “odd-lot.” An odd-lot injury “makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.
Under the odd-lot doctrine, the burden of persuasion on the issue of the extent of disability always remains with the worker. Nevertheless, when a worker makes a legally sufficient case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence showing the availability of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of facts finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Factors to be considered in determining whether a worker is an odd-lot employee include the worker’s reasonable but unsuccessful effort to find steady employment, vocational or other expert evidence demonstrating suitable work is not available for the worker, the extent of the worker’s physical impairment, intelligence, education, age, training, and potential for retraining. No factor is necessarily dispositive on the issue.”PERMANENT TOTAL DISABILITY AND OLDER WORKERS
An older worker with a severe injury has a higher chance of receiving a permanent total disability award than a younger worker with the same injury. The reason is that in 1995 the Iowa Supreme Court adopted the rule that injuries to older workers will generally be found to be more serious. The reasoning for this rule is that it is frequently more difficult for an older worker to retrain for a new occupation. Additionally, the Court found that many employers prefer younger employees. Therefore, an older worker with a limitation from a serious injury is less likely to be hired.
The occupation of an injured older worker is also crucial in determining whether the worker will potentially qualify for permanent total disability. For example, as lawyers we can continue to work even if we suffer a very serious physical injury.
However, an older worker who has always done physical labor may end up being knocked out of the workforce if they sustain a serious injury that impairs their ability to physically function.
Another important factor involving injuries to older workers is whether or not the employer terminates the injured worker. If the employer accommodates the injured worker and puts them back into the labor force with a permanent lighter duty job, then the chances of receiving a permanent total disability award are very low.
By contrast, if the employer decides to fire the older worker after the injury, then the chances of a permanent total disability award are increased.PROVING PERMANENT TOTAL DISABILITY
In cases where our clients have been terminated, we help them to perform organized and documented job searches to help show their difficulties in obtaining a new job.
Another important factor in all potential permanent total disability cases is to obtain quality expert medical opinions concerning the percentage of functional impairment and the appropriate work restrictions. Our law firm works with respected physicians to provide such expert medical reports.
In addition, vocational experts can be very helpful in helping to establish that a worker has suffered permanent total disability. The areas where a vocational expert can provide helpful opinions include:
- The vocational expert can analyze the work restrictions to help determine what types of occupations are simply going to be impossible for the injured worker. For example, a vocational expert can explain that a worker who is limited to lifting very light weights would no longer be qualified to do any of the types of jobs that fall under the categories of medium level or heavy level work.
- A vocational expert can explain the specifics of why a worker with limited education and no computer skills is going to have a very difficult time transitioning to jobs that do not require physical labor.
- The vocational expert can also give opinions about the length of time that would be required for potential retraining and whether or not that retraining is likely to be successful.
- A vocational expert can also address issues such as an injured worker who has the lifting ability to do light assembly work, but who also has additional restrictions against bending and twisting that would actually exclude the injured worker from a light assembly job.
- A vocational expert can cite to the studies and statistics showing that in many cases employers are unlikely to hire older workers who have physical limitations.
- The vocational expert can perform job surveys or conduct job placement efforts in the injured worker’s local job market to help show the problems the injured worker faces in obtaining new employment.
- After addressing all of these areas the vocational expert can provide conclusions about the unlikelihood of the worker being able to return to the labor market.
There are two big issues that have to be addressed in potential settlements of large workers’ compensation cases, including permanent total disability cases. The first issue involves Social Security Disability payments. Frequently, a worker who is eligible for a work comp permanent total disability award will also be eligible to receive Social Security Disability payments.
The problem is that the Social Security Disability rules state that if the total amount of an injured worker’s Social Security Disability benefits and workers’ compensation benefits exceed 80% of the worker’s pre-injury average earnings then the Social Security Disability benefits will be reduced to bring the total payments down to this 80% level. However, it is possible to settle the workers’ compensation case in such a way as to greatly reduce or eliminate this social security disability offset.
If a permanent total disability case can be settled, it is sometimes possible to work out an agreement that the injured worker receives a large lump sum amount of money, rather than receiving smaller weekly payments.
A second settlement issue in permanent total disability cases and other large injury work comp cases involves potential Medicare coverage in the future. Just as a severely injured worker will frequently end up qualifying for Social Security Disability, they will also qualify for Medicare. Medicare has become very aggressive in making sure that it does not pay for any care related to a work injury. Therefore, the future medical care for the work injury has to be set up very carefully to make sure that the injured worker will have medical coverage in the years ahead.CONCLUSION