Permanent Disability Attorney

Most individuals who have sustained a work-related injury recover fully and can return to work either right away or after taking some time to heal. However, sometimes an illness or injury is so severe that the person is disabled permanently and cannot return to their regular duties or work. They may receive permanent disability for their worker’s compensation claim in these cases.

Long Term Care for a Work-Related Injury

In California, the law requires employers to cover the medical treatment for workers who have been hurt on the job. However, that obligation does have limitations when the person has reached their maximum medical improvement, meaning that they will not see any more progress in their condition, and the coverage shifts.

If the person is totally disabled, they may be eligible to receive permanent disability (PD) benefits for life. Under California law, PD benefits may be paid to a person when their illness or injury impacts their ability to earn a living. They may qualify for these payments even if they can return to work.

This may also qualify them for other programs like Social Security Disability.

When is a Person Eligible to Receive Permanent Disability?

Eligibility for PD is typically established by medical proof from a doctor or specialist who maintains that, in their professional opinion, the individual has reached their maximum medical improvement (MMI). This usually means that the person’s recovery or healing has reached a plateau. They are unlikely to see any more improvement beyond that point within the next 365 days or one year, even if they continue to receive medical treatment.

At that point, the person’s temporary disability benefits will end, and PD benefits will start. They qualify because the extent of the harm done to them by the illness or injury has left them with permanent physical or mental limitations and is extremely unlikely to improve.

Types of Permanent Disability

The total amount that a qualified person can receive for their permanent physical or mental disability is determined by the degree or extent to which the individual is disabled. This information will place them into one of two PD categories.

Total Permanent Disability – Most of the time, a person qualifies for this type of benefit if their doctor has determined that they will most likely never have the ability to work in any capacity for the remainder of their life. This outcome is not very common for worker’s comp cases. It is typically seen in cases of extreme injury such as blindness in both eyes, total paralysis, or loss of the use of both legs or arms. It can also be awarded in severe cases of a traumatic brain injury or other conditions that significantly impact the person’s cognitive abilities.

Partial Permanent Disability – If a PD is less than 100%, it is considered a partial disability. It means that the person can still work, but not at the level of efficiency and skill they exhibited before they were hurt or sick, and their earning capacity has been affected.

Calculating Compensation by the Permanent Disability Rating Schedule

The Permanent Disability Rating Schedule, or PDRS, determines the amount of compensation a person receives if they are permanently disabled due to a work injury. It employs several factors to arrive at a final amount.

It analyzes how the injury impacts the person’s ability to work instead of how it affects their daily lives. It looks at several key elements:

  • Type of injury
  • The victim’s age
  • The type of job they performed
  • The change in the person’s future earning capacity

The whole person impairment rating from the person’s doctor is adjusted to determine their level of work-related impairment using a formula established by the Department of Industrial Relations. This formula increases the impairment rating by 40% to arrive at the final impairment rating.

To illustrate, if a person’s doctor gave them a whole person impairment rating of 20%, the PDRS will, in turn, increase that percentage by 40%.

40% of 20% is 8%, so 8% is added to the 20% bringing it up to 28%.

So, the person’s impairment rating went from 20% to 28%.

The PDRS is used to adjust that percentage based on the part of the injured body and the type of job the person performed.

This means that some people have a greater degree of impact or disability because of the type of work they do. In other words, if computer work is the primary focus of a person’s job, they will be more significantly impacted if their hands are injured than if their legs are injured.

The individual’s age is also taken into account. An older person is less likely to be able to go through the training and skill enhancements to start a new career. This limitation can also increase their level of impairment.

California Law and PD Benefits

California law determines PD benefits, how they are calculated, and the amount awarded. According to the law, the benefits are determined by evaluating some detailed data:

  • The date of the injury
  • The impairment level was determined by the primary treating doctor or physician (who is a QME)
  • The person’s percentage of impairment
  • A formula that calculates the impairment percentage, age, and occupation of the person

The judge or disability evaluator will calculate the amount of PD the person is qualified to receive based on the formula.

If the injury date is on or after January 1, 2013, the PD rating will not include the person’s future earning capacity. It also does not allow them to receive additional PD for sexual dysfunction or sleep disorders that are not a direct result of the injury named in the claim.

Additional PD may be available for psychiatric injuries, but that is limited to cases that involve a traumatic event such as a catastrophic physical injury, or the injured worker was a witness to or victim of a violent crime.

The Payment Schedule and Dollar Amount for PD Claims

Once a person receives their PDRS rating, it will be translated to a dollar amount. PD benefits are determined by calculating two-thirds of the person’s average weekly wage.

If it is determined that a person’s work-related injury has caused them to be permanently disabled, their first payment for PD will be issued within 14 days of their final TD payment.

A person can receive PD payments even though they return to work. It is not necessarily based on their ability to work but on the difference between what they could do before the injury and what they can do now. It is based on the difference in earning capacity before and after the injury.

Challenging a Disability Rating

Sometimes, individuals believe that the impairment rating their doctor assigned to them is incorrect. When this occurs, they can submit a request to be evaluated by a qualified medical examiner to obtain a second opinion of their condition.

There are several steps in this process:

  • The individual decides that they disagree with their doctor’s level of impairment evaluation or determination
  • The individual contacts the claims administration and submits an objection to the report
  • The individual obtains a DWC form
  • The individual submits the DWC form with a request for a panel of three qualified medical examiners
  • The DWC sends the individual to the panel of QMEs
  • The individual selects a QME from the panel and makes an appointment for an examination
  • The individual provides the claims administrator of the QME that they selected as well as the appointment date and time

Once the individual completes the appointment, that doctor will assign a level of impairment that agrees with the original doctor’s evaluation or is higher or lower than the initial determination.

If the person has an attorney, the attorney and claims adjuster may discuss the issue and agree on an agreed medical evaluator to resolve any medical disputes.

The individual can also request a reassessment of their payment amount assigned by their worker’s compensation judge if they feel they should be getting a more significant benefit.

Contesting an impairment rating is not easy, though. The worker’s compensation laws in California are complex, and it can be quite difficult to challenge the doctor’s rating or judge’s decision.

Let Us Work with You to Get the Compensation You Deserve

If you are facing a permanent disability, you probably have some questions. It is challenging to navigate the laws and regulations surrounding worker’s compensation in California.

We are here for you. You can count on the experienced Van Nuys worker’s compensation attorneys at the Law Offices of Hussain & Gutierrez. Call today for your free consultation and get the professional, knowledgeable representation you deserve.