Proving Disability Under the Workers’ Compensation Act

A PRACTICAL FRAMEWORK: PROVING DISABILITY UNDER THE WORKERS’ COMPENSATION ACT

The following is not a legal treatise with citations to appellate case rulings, applicable statutes, or the rules embodied by the North Carolina Workers’ Compensation Act. Furthermore it is not intended to be legal advice. Accordingly, you should not act upon the following information or recommendations regarding your individual matter or on behalf of anyone else’s matter, but you should consult an attorney for proper legal advice.

Basically, this article provides an overview of the practical aspects surrounding how an injured worker must prove that their accident-related injuries have caused disability under the Workers’ Compensation Act to be entitled to wage indemnity compensation – the legal term for income replacement. However, we first must cover the vocabulary used in workers’ compensation claims, with an effort to convert the key legal terms and concepts into plain-English for better understanding.

A. The Key Vocabulary of Workers’ Compensation

Disability: Disability is a legal term of art, but it is easily understood from a practical aspect when broken down into five key components: (1) the partial or total and/or temporary or permanent inability (2) as a direct result of accident injuries (3) which prevents the obtainment of wages or salary (4) from suitable employment (5) at least equal to those you earned in the job you were performing when you got injured. Your prior income is based upon what is called your average weekly wages (AWW) whether earned as an hourly wage or by a salary, as defined below. AWW, and the other italicized terms are defined below.

Average Weekly Wages (AWW): You are entitled to receive two-thirds (66 & 2/3rds %) of what is determined to be your properly calculated average weekly wages (AWW) as of the accident date. Although the Workers’ Compensation Act provides for several, potentially alternate methods to calculate such AWW, the initial method is to take the total of your earnings (wages, salary, bonuses, overtime pay, etc.) for the 52 weeks immediately prior to your accident date and divide such amount by 52 weeks, which would provide the AWW. [Note: If you were out of work during the subject period for any period of eight (8) days or more, then such week/day periods first would be subtracted from the 52 weeks and the total earnings would be divided by this remaining number of weeks/days to obtain the proper AWW.]

Maximum Medical Improvement (MMI): At some point during the course of your medical treatment and rehabilitation, the treating healthcare professionals will assess you as being at what is referred to as maximum medical improvement, which essentially means that your medical injuries and related conditions likely have reached a plateau whereby further improvement, if any, is unlikely. MMI is a significant determination creating pivotal issues and posing critical decision-making, as is discussed further below.

Medical (Work) Restrictions: If they find such to be reasonably necessary and warranted, then the healthcare professionals providing care for your accident-related injuries may impose what is commonly referred to as medical work restrictions. Essentially, such restrictions are aimed either at limiting the injured worker from engaging in certain activities which are determined to be potentially harmful in light of their injuries and/or at simply documenting what the patient physically and/or mentally cannot reasonably perform due to limitations inherently caused by their accident-related injuries or trauma. A simple example would be where an injured worker who sustained a back injury is medically restricted from lifting any items weighing in excess of 25 lbs.

Suitable Employment: For accident claims arising after 23 June 2011, prior to an injured worker reaching MMI, suitable employment may consist of any employment offered to the injured worker that is within the employee’s work restrictions (including rehabilitative or other non-competitive employment), with the employer of injury, and approved by the employee’s authorized healthcare provider. However, once the employee reaches MMI (as to any and all compensable injuries), then suitable employment is considered to be (a) employment located within a 50-mile radius of the employee’s residence with any employer and (b) which the employee is capable of performing while considering the following factors:

1.  the employee’s pre-existing and injury-related physical and mental limitations;
2.  vocational aptitude and skills;
3.  educational background; and
4.  work experience.

However, not any one of the above factors shall exclusively determine whether a position is suitable.

For accident claims arising prior to 23 June 2011, the definition and concept of suitable employment is based, in part, upon certain factors identified by appellate case law. Accordingly, such claims require a more complex analysis by an experienced workers’ compensation attorney.

Wage Loss Indemnity: There are two general categories of workers’ compensation benefits: medical compensation and wage indemnity compensation. Basically, virtually any and all compensation paid to you or on your behalf to third-parties (physicians, hospitals, physical therapists, etc.) falls under one of these broad categories. Wage loss indemnity essentially is the weekly compensation paid to you for your loss of earnings at the rate of 2/3rds of your AWW specifically due to compensable disability as discussed above. It is paid either directly by your employer, its insurance carrier, or its claims administrator. Wage indemnity either can be in the form of what is called temporary partial disability (TPD) benefits; temporary total disability benefits (TTD); permanent partial disability benefits (PPD); or permanent, total disability benefits (PTD), each of which are explained below.

Temporary Total Disability (TTD) Wage Indemnity: Normally, when you are initially injured and as a result are unable to work in any capacity within suitable employment, specifically including your regular job, your disability either is clearly due to the nature and extent of your injuries or, as is more frequent, because the initial treating healthcare provider has imposed certain medical restrictions, if not a full restriction from work. Wage indemnity paid during this period is considered to be for your temporary, then-current total disability, and such could continue until you returned to suitable employment or unjustifiably refused such when offered or located by the employer. There are time-frame limitations applicable to your entitlement of wage indemnity, but also some exceptions to such limitations, as well, as explained further below.

Temporary Partial Disability (TPD) Wage Indemnity: If you are able to continue working after your accident, immediately or at a later date, but due to disability you are earning less wages (or salary), then wage indemnity would be paid for the specific earnings loss. Accordingly, you would be receiving partial wage indemnity, and such would be considered temporary, unless you later recaptured your prior AWW level, selected compensation based on scheduled injury ratings, OR proved to be permanently and totally disabled, as discussed below. As with total disability benefits, there also are time-frame limitations applicable to your entitlement of partial disability benefits, but with certain exceptions as explained further below.

Permanent, Total Disability (PTD) Wage Indemnity: If an injured worker is determined to be permanently and totally disabled from engaging in suitable employment, then they will be entitled to wage indemnity for as long as such total disability continues, but with certain time- frame limitations depending on the nature of the disabling injuries.

Permanent, Partial Disability (PPD) Wage Indemnity: Once an injured worker is determined to be at MMI by all authorized healthcare providers as to all accident-related injuries, then assessments by said providers are made as to whether or not any or all such injuries are permanent in nature. Pursuant to such assessments, the healthcare assessor rates the degree of injury by assigning a specific percentage of permanent injury as to the respective body part, organ, or organ system. As to the latter, there is a schedule reference contained in the Workers’ Compensation Act. Consequently, generally speaking, but with some exceptions, based on such percentage rating, the injured worker becomes entitled to a certain number of weeks of wage indemnity compensation or a lump sum monetary amount, depending on the respective body part, organ, or organ system.

[Note: To learn more about the schedule of injuries referenced above, please visit the N.C. Industrial Commission Homepage and website at www.ic.nc.gov, review N.C.G.S. §97-31. Schedule of injuries; rate and period of compensation, or consult a North Carolina Workers’ Compensation attorney.]

Limitation Periods on Wage Indemnity Benefits: Effective 24 June 2011, the North Carolina Legislature adopted certain limitations on the periods by which injured workers are entitled to respective wage indemnity benefits. To preface, in a nutshell, there are certain injury categories which allow an injured worker to be declared permanently and totally disabled and, thus, entitled to wage indemnity for the remainder of their life, specifically: (1) the loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof; (2) severe spinal paralysis of both arms, both legs, or the torso; (3) severe brain or closed head injury, as evidence by certain severe neurological disturbances or disorders; or (4) second-degree or third-degree burns to thirty-three percent or more of the total body surface. An injured worker who qualifies for such permanent and total disability also would be entitled to medical compensation to treat compensable injuries for life. [See: NCGS§97-29.]

Without falling into one of the above enumerated categories, an injured worker who can prove on-going total disability otherwise is limited to wage indemnity for a maximum period of 500 weeks from the first disability date. Specifically, the 500-week period starts on the first date of disability and not on the accident date. So, any period between the accident and the first disability date is not counted against the 500-week limitation period.

Notwithstanding the above, specifically as to the temporary total disability (TTD) benefit period limitation, once an injured worker has demonstrated disability for a total chronological period of 425 weeks, then they can apply for additional wage indemnity compensation and potentially become entitled to such, based on showing by the preponderance of the evidence that total incapacity to engage in suitable employment continues. [Note: There is a statutory employer credit against (deduction from) such extended compensation based on the injured worker’s potential, contemporaneous receipt of Full Retirement Benefits under the Social Security Act.]

If an injured worker is entitled to temporary partial disability (TPD) benefits (i.e, they have returned to suitable employment but at a wage or salary level less than what they were earning on their accident date), then such benefits are limited to the 500-week maximum period described above. However, any and all prior weeks of temporary total disability (TTD) benefits are deducted from the subject 500-week limitation period. Nevertheless, the TPD limitation period also is based on the cumulative number of disability weeks and not merely an elapsed chronological period.

Lastly, it is important to emphasize that an injured worker is not entitled to receive benefits for temporary total or permanent total disability (TTD or PTD) and Permanent Partial Disability (PPD) benefits for the same disability periods. In addition, if they are entitled to such PPD benefits for scheduled injuries once they reach MMI as to all accident-related injuries (see NCGS §97-31) but also qualify pursuant for temporary partial disability (TPD) (NCGS §97-30), then they must select the respective benefit scheme which they believe provides the most favorable remedy. Incidentally, no such required benefit selection is imposed prior to the injured worker reaching MMI. Accordingly, an employee could receive prior TTD and/or TPD before being assessed at MMI, for which there would not be any credit against subsequently scheduled ratings compensation once reaching MMI. However, there would be a credit due for any TTD benefits received after MMI.

Now that we have a digest of the key vocabulary in workers’ compensation, let’s explore the practical framework within which an injured worker ultimately must prove compensable disability in order to be entitled to wage indemnity.

B. Proving Disability: Building the Disability Pyramid

Almost needless to say, a thorough discussion of the workers’ compensation concept of disability would require a multi-page manuscript, which necessarily would include a detailed discussion on the applicable laws, rules, procedures, and appellate court decisions. Naturally, the black-letter law, as they say, is highly important, but such tends to be boring and confusing. In contrast, we have developed a simple conceptual framework to help explain the practicalities surrounding proving disability as otherwise required by the applicable law. We call it the disability pyramid.

(1) Top of the Disability Pyramid: Entitlement to Wage Indemnity Benefits

As discussed above, wage indemnity either can be temporary or permanent and/or either total or partial. However, some of the most problematic areas in workers’ compensation arise when an injured worker faces the burden of proving on-going temporary total disability (TTD) or temporary partial disability (TPD), whether prior to or after being assessed at MMI.

Since wage indemnity obtainment is a primary goal for the disabled worker, we place such at the top of the pyramid, and then we will explore what supports it from the foundation through the core.

It is crucial to appreciate that an injured worker almost always has the burden to prove their disability, and they are not provided any legal presumption regarding such status. The exception to this principle is so rare, that it does not warrant any real consideration for our purposes.

In light of this burden of proof, it is paramount for the injured worker to understand both the legal and practical evidence required to prove such disability status.

(2) The Disability Pyramid Core: Proper, Supporting Evidence of Disability
Within the core of the pyramid, so to speak, essentially there are four methods by which an injured worker can prove compensable disability:

1. Competent medical expert testimony declares that they are medically disabled for any work due to accident-related physical, mental, emotional, or behavioral limitations (which are best supported by medical restrictions);
2. After a reasonably diligent search for suitable employment, they have been unable to obtain such due to such accident-related limitations;
3. Based on all relevant factors (accident-related limitations, pre-existing conditions, the local (50-mile radius) labor market opportunities; vocational profile, etc.) it would likely prove futile for the injured worker to seek potential suitable employment; and/or
4. They return to suitable employment but at a wage or salary level below their accident AWW level.

It is important to note the emphasis on the concept of accident-related physical, emotional or behavioral limitations. Ultimately, such accident-related limitations are the paramount factor in disability determination. Furthermore, although accident-related limitations can be proved based on various forms of evidence, including medical documentation, injured-worker testimony, and other lay person testimony, unquestionably healthcare (medical) restrictions tend to be given the most weight in the disability analysis performed by the Industrial Commission.

(3) The Disability Pyramid Foundation Blocks: Best Sources of Key Evidence
From a practical perspective, there are three categories of key foundation blocks, so to speak, embodying the concept of relevant limitations:

1. Limitations caused by pre-existing (before the accident), but non-disabling, physical,mental, emotional and/or behavioral conditions;
2. Limitations inherently caused by accident-related injuries/conditions (e.g., the physical loss of an arm); and
3. Limitations resulting from medical restrictions imposed by healthcare professionals upon certain physical activities, environmental exposures, work nature, etc.

The best and most persuasive sources of documentation for the above limitation categories normally involve one or more of the following:

1. The injured-worker’s medical history as documented by the records for pre-accident healthcare which establishes their pre-existing conditions and correlative limitations;
2. The injured-worker’s vocational profile, which would include their education obtainment, work experience, specific aptitudes, transferrable skills, etc.; and
3. Post-accident testing and evaluation results: Functional capacity evaluations (FCEs) and various assessments, including cognitive testing, psychological and neuropsychological testing, physiological testing, etc.

(4) The Builders: Lay Witnesses and Expert Testimony

The recruited builders, so to speak, who use the above tools and materials to build the disability pyramid are primarily the injured worker, necessary fact witnesses (co-workers, spouse, family members, friends), and expert witnesses (healthcare professionals, vocational experts, allied health professionals, economists, industry-standard experts, etc.). Typically, the expert witnesses use the injured worker’s pre-accident medical history and accident trauma medical care documentation, along with testing results and factual assumptions supported by fact witnesses, to provide their professional opinions on a wide array of relevant issues, but most importantly on the two key issues: accident-injury, medical causation and effected disability.

(5) The Architect and the Blueprint: The Workers’ Compensation Attorney and the Personalized Client Plan

The workers’ compensation attorney can be seen as the architect who first must ensure that a proper blueprint is developed for each client’s disability pyramid, and then they must next work with the builders to properly erect the client’s personal disability pyramid, while dealing with an array of issues during the construction process around which tough decisions often must be made by the injured worker based on the insightful advice of the attorney.

In reality, if the architect-attorney does not have a proper depth of relevant knowledge and experience, as well as a competent support team and adequate financial resources, then the potential for success can be significantly impaired, if not prevented. Furthermore, it is best that the attorney has developed mutually respectful relationships with not only the professional builders recruited but also with the employer, its insurance carrier and/or claims administrator.

C. The Personal Client Blueprint

We wholeheartedly believe that perhaps the most important process is the timely obtainment and development of the proper information required to properly draft the best blueprint for building a client’s personal disability pyramid. And, this process starts at the initial consultation with the injured worker and continues with the need for consistent, timely, and continuous communication the injured worker and the attorney and firm support staff.

Furthermore, we firmly believe that the injured worker is perhaps the most valuable member on the construction crew, and, accordingly, they must become fairly knowledgeable of the relevant activities involved in order to be proactive in protecting their rights and seeking equitable compensation. This is why we constantly review the above disability pyramid-building process with our clients at regular scheduled meetings, and we keep them informed of all critical matters.