When Can I File for Permanent Total Disability?

Permanent Total Disability

To the worker who proves his/her case, the insurer must pay a cash “lump sum” check covering 330 weeks (6.40 years) worth of weekly checks. On week 331, weekly payments restart and continue weekly for life.

For example, a worker at a $500/week rate receives a cash payment of $165,000.00. On week 331, he/she begins to receive more weekly checks at $500/week plus a cost-of-living adjustment, which continues; so, if he/she lives another 20 years, it amounts to more than $572,000.00 even though it’s paid out weekly. $165,000 plus $572,000.00 is $737,000.00. With annual cost-of-living increases it surpasses $1,000,000.00.

Most insurers deny claims for Vermont permanent total disability. They are required by law to state the reason for their denial. Too often the real reason for their denial is never stated; but it would be this: the reason we are denying the claim is because we love money, specifically we love our money and we don’t want to part with it.

Many times, there’s just too much money to pay out for the insurance company to keep their promise to voluntarily do the right thing by accepting responsibility. Often, insurers believe it’s cheaper in the short run to deny the claim, make the worker meet his/her “burden of proof,” and over time try to wear the injured worker down.

It’s wise to be represented by an experienced Vermont workers’ compensation attorney as early in the case as possible.

The Burden of Proof Is on the Injured Worker

If your claim for permanent total disability is not voluntarily accepted by the insurer, there’s quite a lot of work to be done by you and your attorney. The insurer and the Vermont Department of Labor will make you prove all that the law requires to receive an order requiring the workers’ compensation insurer to pay.

Vermont Department of Labor Rule 10 provides in relevant part:

  • Age, experience, training, education, occupation, and mental capacity shall be considered, in addition to physical or mental limitations and/or pain. 21 V.S.A. §644(b).
  • A claim for permanent total disability…should be supported by the following:
    • A functional capacity evaluation (FCE) that assesses the injured worker’s physical capabilities; and
    • A vocational assessment that concludes that the injured worker is not reasonably expected to be able to return to regular, gainful work, either with or without vocational rehabilitation assistance.
  • For the purposes of this Rule, “regular, gainful work” refers to regular employment in any well-known branch of the labor market. Work that is so limited in quality, dependability, or quantity that a reasonably stable market for it does not exist does not constitute “regular, gainful work.”

The Vermont Department of Labor is most interested to see proof of whether you are likely to be able to be hired or not hired as a result of the work injury:

…[the] test is “the probable dependability with which [the] claimant can sell his or her services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck or the superhuman efforts of the claimant to rise above crippling handicaps.” 4 Lex K. Larson, Larson's Workers' Compensation § 83.01 at p. 83-3 (Matthew Bender, Rev. Ed.), quoted with approval in Moulton v. J.P. Carrera, Inc., Opinion No. 30-11WC (October 11, 2011).

Michael Hall, No. 09-19WC, 2019 WL 2267119, at *7 (Vt. Dept. Lab. Ind. May 14, 2019)

How to Meet the Burden of Proving Permanent Total Disability

How do you build a case for Permanent Total Disability in a Vermont workers’ compensation case? I will use the case of Michael Hall as an important illustration.

The case had the following:

  • Excellent credibility of the injured worker;
  • Excellent credentials and credibility of experts: Dr. Mark Horton, treating pain management specialist; Dr. Mark Bucksbaum, independent medical examiner and physiatrist; as well as experts Britt McKenna, vocational rehabilitation counselor, and Jack Bopp, certified rehabilitation counselor.

The case also had proof of the following:

  • A Functional Capacity Evaluation (FCE) showed a work capacity, which at first seemed like the injured work was not permanently, totally disabled. But, the injured worker reported his experience of debilitating “rebound” pain the days after; that meant he could perform some tasks on a given day, as he did on the day of the FCE, but it also meant the following days he could do absolutely no employable tasks.
  • The report and analysis of the labor market compared to the injured worker’s limitations, by expert Jack Bopp;
  • The injured worker’s medical records of treatment showed consistent patient compliance and near exhaustion of care, including blocks, medication trials, scrambler therapy, medical marijuana, none were effective except medical marijuana and hot baths; the injured worker declined at the time the offer of additional medical options of spinal cord stimulator and IV-Ketamine;
  • The vocational counselor records demonstrated the injured worker’s good efforts but despite good efforts, all there was to show was a failure to achieve a goal to develop basic computer skills. Vocational goals could not be achieved and further options were not realistic due to the severity of disability limitations noted by the pain management provider;
  • Records showed the injured worker’s motivation, including his failed attempt to do regularly scheduled unpaid volunteer work. Despite good faith attempts, the evidence showed, realistically, he was not a reliable volunteer.

In addition to these facts, the judge was very persuaded by a single illustration of how the injury prevented the injured worker from reliably keeping his personal schedule.

The Department decision took notice in the Opinion and Order:

Claimant testified that it is hard to plan activities such as grocery shopping or visiting friends because his pain flares are severe and unpredictable. He generally goes shopping late at night or early morning so he can move slowly and not worry about another shopper jostling him. Even going for a walk is problematic because a single misstep can cause jarring pain. The unpredictable nature of his condition has also isolated him socially. I find this testimony credible in all respects.

Michael Hall, No. 09-19WC, 2019 WL 2267119, at *2 (Vt. Dept. Lab. Ind. May 14, 2019)

Additional Considerations for Building Permanent Total Disability

Decide Whether Building a Case of Permanent Total Disability Is Best for the Injured Worker

Imagine what decisions you would face if the disabled worker were you.

Perhaps the following hypothetical is very much like you!

Imagine, for example, you suffer a bad fall. You feel pain in your back, and the pain makes you feel nauseous. Someone calls 911.

An ambulance transports you to the closest Emergency Department. After intensive exams, MRI and CT scans are completed. You have injuries to your back from L3 to L5, and in your neck from C3 to C5. You undergo surgeries.

After discharge from the hospital, family members start driving you to physical and occupational therapies. More problems begin. Ninety days after the injury, you are terminated by the employer. Your family members can’t continue to transport you to therapy, and a neighbor can’t commit to you because he’s got to go to work.

Your workers’ compensation insurer is required in such circumstances to provide transportation to medical appointments. But no one tells you your rights. You would like to get a really good vocational rehabilitation counselor to help you try to find a job you might be able to handle.

After more than a year of treatment, you still have not been able to return to your job.

You are told that you are approaching what they call “maximum medical improvement.” That means you’re about “as good as you’re going to get” in your recovery. But you still can’t put on your own socks without pain; you still can’t turn your head to the right well enough to drive safely. You can’t use stairs without increased pain and risk of imbalance. You still take pain medicine, plus a stomach pill to prevent upset. You can’t sleep more than a few hours at a time. When you wake up in pain you do not feel restored or rested.

The workers’ compensation insurer instructs its nurse case manager to stop calling you for updates and to close her file. The insurance adjuster sends a notice to you that says the insurer’s agent has scheduled you to be examined by an “independent medical exam” (IME) and a permanent impairment rating.

The IME report will be written by the doctor that the insurer chooses. You go to the IME exam. You get a feeling like this doctor is someone you can’t trust with your case or your care. You later receive a copy of the IME report by the insurer’s doctor. The report alleges that most of your medical issues are not part of your injury because they are from unrelated preexisting conditions and that you are at maximum medical improvement. The adjuster tells you that, based on the IME report, your weekly temporary total disability checks will stop in seven days. All that you will receive after that is payment for another 55 weeks.

You are feeling betrayed and abandoned by the workers’ compensation insurer.

It is not your fault that your medical improvement after surgeries was not quite what you had hoped.

You have developed for the first time in your life a major depressive disorder from the injury. You will need continued counseling for depression and anxiety. You will need periodic visits to pain management and you will need exams, check ups, and certain pain prescriptions likely for the rest of your life.

You don’t know if you could handle training for a new career; you don’t have the capacity for sitting and focusing or the memory required for education and retraining. You have thought of working part-time from home answering calls, but it is all speculation; even if hired, you must keep regular hours that you can’t promise, and you can’t live on that wage.

Your vocational counselor obtains information from your providers that, based on a job description, your injuries are so severe that you can’t continue as the worker everyone knew you to be. Labor market surveys and random contacts with other area employers result in no job offers nor employer accommodations.

You are receiving some medical insurance under Green Mountain Care, through Vermont Medicaid.

Your application for Social Security disability hasn’t been filed because you still can’t see yourself not working again.

You have overdue payments for your loans. Your rent is behind. You are worried the repo man will tow away your car. You’re a single parent. Your family depends upon you.

What do you want to do with the rest of your life?

Do you want to file a claim for permanent total disability? Do you want to try to volunteer to see if there is something you could do with flexible hours even if unpaid? You need to do paid work, not charitable work.

Is this the time to be thinking of filing for Permanent Total Disability?

If what’s best for you is to prepare a claim for Permanent Total Disability, below are some additional considerations.

The Injured Worker Should Not Be the One to Pronounce His/Her Own Disability

You can keep on trying to pursue your genuine hope and desire to work. It is not a detriment to your claim. It is detrimental and unpersuasive when a disabled worker starts to advocate for his own disability.

As far as disability, let other witnesses “call it”:

  • Which medical providers and other experts can offer the opinion of permanent total disability?
    • Consult with the treating specialist(s). What is the specialist’s opinion on the likelihood of you regaining a competitive work capacity?
    • Consult with experts in pain medicine, orthopedics, physiatry, psychiatry, functional capacity, and vocational rehabilitation to address injury limitations and permanent total disability.
    • If a head injury is involved, consult with a neurologist and an evaluator of cognitive functional capacity.
  • Check the vocational rehabilitation counselor’s knowledge and opinion on the likelihood of regaining employability.
  • Check with neighbors and others who have personal knowledge of your capacities before your work injury and after, and who are witnesses to your new limitations and lack of work capacity.

An FCE May Show a Work Capacity, but It Depends on Context

At a functional capacity evaluation, the injured worker must give his/her best effort, whether it helps or hurts the case. If the examiner asks the injured worker to do a task that the injured worker already knows he/she cannot do, it is usually better to “show” and not simply “tell.” It is one thing to be asked, “Reach down to lift this crate with two pounds in it,” and the injured worker says, truthfully, “I can’t.” It is far more persuasive if the examiner observes the injured worker try his best and fail, or try his best until the examiner says, “Okay, that’s enough. Stop. You can’t do this, I can see that.”

Similarly, if the examiner at an insurance medical exam says, “Reach down and touch your toes,” it is better to let the examiner (and videographer) observe that you can’t, rather than hear you say the words “I can’t.”

Any rebound pain and body/mind payback on the next day(s) experienced by the injured worker must be reported by the injured worker to the FCE examiner and his/her treating providers. The injured worker in the Hall case did this for the FCE examiner, and ultimately the Judge saw it as proof of permanent total disability.

Reporting rebound pain provides a significant context for understanding the results of the FCE, according to Judge DeBernardi:

Claimant's pain increased significantly over the course of the five-hour evaluation. Moreover, he was unable to function the next day due to severe pain, nausea, headache, and fatigue. As he reported to Mr. Alexander in a follow-up email, he was unable even to shower or assemble a meal the next day.

Michael Hall, No. 09-19WC, 2019 WL 2267119, at *3 (Vt. Dept. Lab. Ind. May 14, 2019)

Turn the Insurer’s Inevitable Personal Attack Into Opportunity

The defense inevitably will say, “The injured workers’ claim of pain is subjective,” as if to suggest that the injured workers’ pain reported isn’t credible and, therefore, to suggest the injured worker’s real pain should be ignored.

Look for opportunities from treating providers to confirm pain is consistent with exam findings, the patient is compliant with treatment, and their impression that the patient is motivated and expresses a desire to improve well enough to return to work. In the Hall case, Dr. Bucksbaum followed an AMA Guide section for Pain Disability Index and Observed Pain Behaviors, which are tools correlating pain, confirming activity limitation and effect on mood, and serve to address and rebut the insurer’s attack on credibility issues in pain.

Navigating the Path to Claiming Permanent Total Disability

These comments are among the most important for the injured worker who is facing the real likelihood of not being able to be hired again.

Permanent disability does not mean the injured worker is no longer valued as a person. Every human being has absolute value. Every person is priceless.

But the workers’ compensation system is not designed to judge your life.

The workers’ compensation system is designed and intended to address your needs for disability income when evidence and expert opinions show you cannot work because of permanent total disability.

The challenge to succeed in the workers’ compensation system is to have the knowledge, skill and endurance to fight the insurer tactics and to meet the burden of proof.

When you hire an experienced Vermont workers’ compensation attorney, you don’t have to go it alone!

Schedule a consultation with the Law Office of Charles L. Powell PLLC by calling (802) 731-0154.

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