Tag Archives: Permanent Total Disability

Caught in the TTD/PPD squeeze

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Consider these common scenarios after a serious work injury.

An injured employee is done recovering from a surgery but can’t go back to work until they complete a Functional Capacity Evaluation.

An injured employee is done recovering from a spinal fusion surgery and is unable to go back to their old job. Even if on the odd chance they could go back to their old job, they have been off work so long that any job protections available under the Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) have long passed.

In both cases an injured worker is likely 1) not getting temporary total disability (TTD) 2) Is not earning wages and 3) Has not started receiving any permanent partial disability (PPD) or permanent total disability (PTD).

Some call it “the gap”, some call it “the squeeze”, but whatever you call it, it’s a painful situation to be in to not have any money coming in after a recovery from an injury.

Workers’ compensation laws in Nebraska are supposed to be interpreted in favor of the employee to effectuate the beneficent purpose of relieving employees of the economic effects of a work injury. How can employers/insurers squeeze injured employees like this?

One answer is that case law may allow this. I am going to cut and paste in the relevant language case law into this blog post in italics. I am going to bold face the language insurers rely on to squeeze injured employees.

Temporary disability ordinarily continues until the claimant is restored so far as the permanent character of his or her injuries will permit. Compensation for temporary disability ceases as soon as the extent of the claimant’s permanent disability is ascertained. In other words, temporary disability should be paid only to the time when it becomes apparent that the employee will get no better or no worse because of the injury.

The term “maximum medical improvement,” or MMI, has been used to describe the point of transition from temporary to permanent disability.  Once a worker has reached MMI from a disabling injury and the worker’s permanent disability and concomitant decreased earning capacity have been determined, an award of permanent disability is appropriate.

The argument underlying the squeeze is that TTD ends when a doctor states you have plateaued medically, but you can’t get permanent disability until your disability has been ascertained. This could mean waiting for a permanent impairment rating or it could mean waiting for an FCE, having a doctor endorse the results and then having a vocational counselor determine disability. As Roger Moore at our office pointed out in 2015, the latter process can last months.

I think allowing insurers to exploit the gap between TTD and PPD is an incorrect reading of the law. As I pointed out earlier, it doesn’t effectuate the beneficent purpose of the Nebraska Workers’ Compensation Act. If TTD ends when disability is ascertained, doesn’t disability actually need to be ascertained through assigning either permanent impairment or permanent restrictions and/or a determination of loss of earning power before TTD payments end? Finally, if MMI signals the transition between temporary and permanent disability benefits, isn’t MMI merely the beginning of the end of temporary benefits rather than the end of temporary benefits? Doesn’t the term “transition” account for some time period when disability is being ascertained?

The temporary/permanent squeeze is an issue of great interest to me. While I think the squeeze is a misreading of the law, I am not certain a trial judge or appellate court would see things my way. The issue may have to be resolved in the Legislature, but the issue is one that should be addressed in litigation. I am one attorney who is willing to litigate the issue on behalf of an injured employee.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Workers’ Compensation Basics: Payments to Workers and their Families

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Here’s the next installment in the firm’s series that focuses on the basics of the workers’ compensation system. It gives information on how payments to injured workers and/or their families are handled. 

Workers’ compensation generally pays by the week, although it may be paid bi-weekly or monthly in some circumstances. The amount of the payment is established by state laws or statutes, regulation or court decision. 

Family members are paid in the event of the death of a worker arising from an accident or disease. Family members are occasionally paid for providing home-health care.     

The amounts paid and duration of payment varies from state to state. Generally there is a minimum and a maximum. The maximum is usually two-thirds of the gross wages earned, with a limit that is adjusted from time to time. 

To calculate the amount actually paid, most states use average wages for a specified number of weeks or months before the injury, death or disease. 

Payments are made for temporary inability to work, which is generally labeled temporary total disability. There may be a waiting period before payments begin. The waiting period varies from state to state. 

Payments are also made when a worker is temporarily limited to light duty and working either fewer hours or for a lower rate of pay. These benefits are called temporary partial disability. 

Payments are made for permanent inability to work and, if severe enough, some states pay for the worker’s lifetime. Some states do not pay for less than lifetime. These benefits are called permanent total disability. 

Payments are made for permanent reduction of the ability to work. This benefit is normally labeled permanent partial disability. 

Payments that are made for loss of body parts or limited use of body parts are also labeled permanent partial disability. State law establishes the value of the various body parts. 

Payments are less frequently paid while workers are participating in retraining or vocational rehabilitation. This is not a common benefit. 

WORKERS’ COMPENSATION DOES NOT PAY FOR PAIN AND SUFFERING. 

It is important to contact an experienced workers’ compensation lawyer if you have questions or concerns about any of the information shared here. Please read the previous blog posts in the workers’ compensation basics series by clicking on these links: 

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Award of permanent total disability in workers comp could still allow finding of disability discrimination

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A California appellate court recently upheld a $1.5m disability discrimination verdict against the City of Los Angeles for discharging a police officer from a light duty position after being found to be 100 percent disabled for the purposes of workers compensation. Though this may seem counter-intiutive to a lay person it makes sense if you know how workers compensation and disability discrimination statutes operate. I believe a similar verdict would be possible in Nebraska.

…disability discrimination claims hinge on whether the employers made a reasonable attempt to accommodate their employees disability.

In short, total disability in workers compensation is a measure of how a person’s limitations effect them in the general labor market, while disability discrimination claims hinge on whether the employers made a reasonable attempt to accommodate their employees disability. Continue reading

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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