How Workers Comp Permanent Disability Benefits ACTUALLY Work in 2024!

So what are permanent disability benefits and how do they differ from temporary wage benefits? Okay, so you have temporary injuries and they become permanent injuries. So temporary benefits are the same regardless of what type of injury you have. Whether you have a broken foot, a sprained ankle, a torn rotator cuff, a bad neck, a bad back, a head injury, no matter what your injury is, a temporary benefit is always going to be the same. Temporary benefits are monetary awards, money that's paid to you to replace your lost wages while you're out of work or if you're working at a reduced capacity, if you're earning less money. Once you return to work and you're earning the same money or more than you were earning prior to your accident, then your temporary benefits will stop. So temporary benefits, they're payable based upon your degree of disability, your level of temporary disability, and your lost time. You need to be out of work on a temporary basis in order to receive those benefits. Once your injuries become permanent, okay, and we're going to use a term at various points throughout today's discussion called MMI. MMI means maximum medical improvement, and that is when basically your doctors or the doctors in your case, could be the insurance company doctors, determine that medical care is not going to make you any better. You've plateaued. You've reached that point where you're not going to get any better. There's nothing else out there that's going to treat you medically and improve your condition. You've gotten as good as you're going to get, and if you have any remaining problems, your injuries now are permanent. With permanent disability awards, the most important thing you have to do first is distinguish your injuries because the way different injuries are paid out is very different from one injury to the next. And there's basically two categories of injuries that you need to focus on here, and they're known as schedulable injuries and non-schedulable injuries. And the easiest way to think about it is a schedulable injury is an extremity, arms, hands, legs, feet, fingers, and toes. This is the schedule. This is my original schedule that I made in 1997, which I use to this day because it's still the law. This is the schedule. This is the chart of what each of those body parts is worth. It also includes things like hearing, but essentially, for all intents and purposes, it is extremities, arms, legs, hands, feet, fingers, and toes, okay? That's category number one, schedulable injuries. Category number two are non-schedulable injuries. These are systemic injuries. These are core body injuries, I call it, head, neck, and back. This can include stroke, heart attack, things like that. Oftentimes, if you have a wide variety of different injuries, you could be lumped into that category, that second category of having non-schedulable injuries. If all the injuries as a whole disable you as a person, you're probably going to fall into that second category of non-schedulable injuries. Otherwise, in cases where there is an overlap, if you had an accident, if you fell down a flight of stairs and you broke your arm and you herniated a disc in your back, if you have overlapping injuries, the path that we go when it comes time to figure out permanent disability, we go down the path that's best suited for your circumstances. So if there's very little lost time and you fractured the arm, we're going to pursue a schedule because it's probably worth more money in your case. Whereas, on the other hand, if you sprained your shoulder but you have a herniated disc in your back that's keeping you out of work for a long, long time, we might pursue the non-schedulable route, try to get you more money that way. So it really depends on which of the injuries are the most severe and that's how generally how those types of permanent disabilities are divided. Those are the two main categories, schedulable and non-schedulable. Who qualifies for permanent disability payments and how do you know if you qualify? When do you find out? So anybody who has a permanent disability as a result of a work-related accident could and should qualify for some sort of permanent disability award. Now, there are some circumstances where you don't get money. For instance, and this is a very big one, neck and back injuries, the non-schedulable injuries. You could have hurt your neck or your back, you could have been out of work for a few weeks, a few months, but you eventually go back to work and even though you might have a permanent injury that requires future medical care, whether it's therapy or ongoing maintenance care or even medication, if you're back at work and you're earning the same or more money than you were earning prior to your accident, your pre-accident salary, most likely you're not going to get any money because you have no compensable lost time. You don't have a loss of wage earning capacity. With the core body injuries that we discussed earlier, the non-schedulable injuries, the judge is going to look to what's known as loss of wage earning capacity. How much has your injury diminished your ability to find gainful employment? And we could guess at that while you're out of work and we could look at the evidence and look at the medical and talk to you about your vocational background and try to figure out how much your injury has kept you earning gainful employment. But if you actually do go back to work, the proof is in the pudding. If you're back and you're earning full salary or more, then your injury didn't limit you from earning money because you're back earning money. So that's one of the circumstances where a person might not qualify. But generally speaking, if you have a permanent injury, depending on which category you fall in that we discussed earlier, we start discussing that when you reach the point of maximum medical improvement. And that might come from your doctor. Your doctor might evaluate you on a given day, a year or two after your accident date and reach that conclusion. Or the insurance company might send you to see their doctor and their doctor might come to the conclusion that you've reached maximum medical improvement. Generally speaking, it's no earlier than one year following the accident and could be two, three, four years following the accident. But it's usually between the one and two year mark that MMI starts popping up in a case. Again, if your injuries are relatively minor, if it's a sprained pinky, your doctors might find maximum medical approval before the one year mark. And if you have a horrible, severe injury that requires multiple surgeries, you're going to go well past the two year mark. But generally speaking, you're looking at that one to two year mark is when people start having assessments done for maximum medical improvement. And that's when we start discussing things like permanent disability benefits. How are permanent disability benefits calculated? And are they calculated the same way for all types of injuries? What if you have multiple injuries? So we're going to go back to what we discussed before with the schedulable injuries and the non-schedulable injuries. A schedulable injury, we look for what are known as schedule loss of use awards. And again, this is the schedule. And this schedule identifies the value of each of those body parts listed here. And it's tough to see here, but on this chart, you have arm, leg, hand, foot, all the different fingers and toes. And each body part has been assigned essentially a value. An arm, a total loss of use, 100% loss of use of an arm would entitle you to 312 weeks of workers' compensation benefits payable at the maximum rate. A foot, on the other hand, that's no pun intended, a foot is worth 205 weeks for a 100% loss of use of a foot. And the benefits are calculated as percentage of that total. So if it turns out you have a 10% loss of use of an arm, you get 31.2 weeks of workers' compensation benefits. If you have 10% of a foot, you get 20.5 weeks of workers' compensation benefits. Those benefits are payable at the maximum rate. And the maximum rate of compensation differs from case to case, but it is two thirds of your gross average weekly wage at the time of your accident. So it's your earnings right when you got hurt, your gross weekly earnings at the time of your accident. And that is subject to a statutory maximum. What does that mean? Under the law, every year, this number changes, but there is a cap. There is a maximum weekly benefit. So I always tell people if Bill Gates gets hurt in New York state, clearly his average weekly wage would be super duper high, but he would cap out at that maximum rate, which is as of last year, it was 1,125. It fluctuates every year. It's the state average wage. So that is how a schedule loss of use award works. You're paid based upon the percentage of permanent disability to that injury, shoulder, arm, foot, leg. Once you reach that point of maximum medical improvement, the doctors assess that body part. They do a specific test range of motion primarily, and they figure out what percentage of permanent disability you have to that body part. And that's worth a number of weeks of benefits. Now, one thing you need to keep in mind here is the insurance company does have the opportunity to take credit for any prior payments. So what does that mean? If your 10% loss of use of your arm is worth $50,000 and they paid you $20,000 of temporary benefits while you were out of work following your accident, well, then you're going to get $30,000 at the end of your case. They get credit for what they've paid you already. And that's only money that they've paid you. It's not medical. So the money they paid your doctor, they don't take credit for that. It's only money that they've paid you. That's generally how a schedule loss of use award works. The other category, the non-schedule loss of use category. In our industry, we refer to those as PPD, permanent partial disability. Those are the head, neck, and back cases. The way those cases are compensated for permanent injury. Number one, you need to be out of work or you need to be working at reduced salary in order to get any money at all. So like we discussed earlier, if you're earning the same or more, you don't get benefits. But if you're out of work completely, or you're earning less money because of your injuries, that's when the awards kick in. And what happens in those cases? Well, just like the schedule loss of use award, where the doctor assesses your injury or how much permanent damage there is, they do the same thing for a neck or a back or a head injury, or any of the systemic injuries. And the doctor will provide a medical report with their opinion as to how much permanent disability you have. And generally speaking, the insurance company doctor will do the same thing. The judge will take testimony from both doctors, will do medical depositions. The judge will hear the testimony of the doctors, and the judge will make a decision as to how much physical disability you have, how much impairment you have as a result of the accident and as a result of the injuries. But there's a second component to a permanent partial disability award that doesn't exist with the schedule loss of use awards. And that is a consideration of your vocational background. So the judge wants to look at how much impairment you have as a result of the accident and the injuries directly. But then the judge also gets to consider your vocational background to determine whether or not your particular vocational background makes it easier or harder to find a job in the future. And that is a determination of your loss of wage earning capacity. So what does all that mean? I always give the example. You have two people who have the exact same injury, and they both have herniated discs in their back as a result of a motor vehicle accident. The first person speaks seven different languages. He's a computer technician. He's Harvard educated. You name it, this guy can do it. Even though both individuals might have the exact same injury and the exact same disability, maybe they both have a 75% disability as a result of their accident. That person, because of their vocational background, might find it easier to find a job in the future. So that 75% disability might be brought down to a 50% or a 35% disability because of their vocational background. Whereas person number two has no formal education, never went to school, can't read and write, and the only job he's ever known is sweeping the floor. Well, that individual might have a much more difficult time finding a job in the future with that injury. So that vocational background might bring his loss of wage earning capacity up, and that 75% or 50% disability might be an 80% or a 90%, depending on what the judge decides. So we do get to factor in your vocational background in reaching conclusions regarding your permanent partial disability. Category two, the non-schedulable injuries. How do you get your permanent disability benefits? Does it work the same way as temporary wage benefits? No, very different. So temporary disability benefits are paid while you're out of work. All workers' compensation awards that are paid for lost time are weekly awards. So a judge might award you $600 a week, $500 a week, whatever it might be. But generally, they're weekly awards, but they're paid to you bi-weekly. The insurance companies save a few pennies every time by sending checks out every two weeks instead of every week. That's how generally temporary wage benefits are paid. Similarly, going back to the two categories again, scheduled loss of use awards are generally paid as one lump sum. 99.9% of the time, they're paid in one lump sum. Permanent partial disability awards, and that's the non-schedule, generally are paid out over time, and they're bi-weekly checks, very similar to temporary wage benefits. So like we discussed earlier, that back case where the judge has determined that a person has a permanent partial disability and has evaluated their permanent disability and their loss of wage earning capacity and their vocational background, and they reach a conclusion, each level of determination, we call it the cap. And depending on what the judge classifies you as having in terms of a loss of wage earning capacity, that tells us how many weeks of benefits you get. So for instance, if you have a 75% disability, you're capped out at 400 weeks of benefits. That's 7.69 years. A 50% permanent partial disability, a 50% LWAC, loss of wage earning capacity, gets you 300 weeks of benefits. That's about five and three quarters years of ongoing awards. Those awards are payable over time, but what you can sometimes do, and it really depends on the circumstances of your case, it depends on who your insurance company is, sometimes we can work what's known as a Section 32, and this is going back to some of those other discussions we've had in the past. You could try to take that lump sum, you could try to take that schedule of awards, that 300 weeks that they owe you, and work out a settlement and say, hey, give me X amount of dollars. It's usually a percentage portion of that overall amount that they owe you, but say, hey, give me X amount of dollars right now, and everyone goes away happy and we're done. So even though a non-schedulable award are paid out over time, a lot of times you can work out a settlement of those types of awards as well and close your case out. Folks, I know my phone number is trailing on the bottom of the screen here on the YouTube. We are always here, 212-406-8989. Feel free to give me a call anytime. Are there any mistakes injured workers make when it comes to permanent disability benefits? Any red flags that we should look out for? One of the biggest ones, we've talked about this in the past, fraud, and there's a term that you might not know the meaning, malingering. When you go to see your doctor, when you go see the insurance company doctor, don't malinger. What does that mean? Don't fake it, okay? Don't tell them, oh, my shoulder's killing me. I can't lift it up. Do the best you can. Give them the best effort you can give them. Make it real. If your injuries are that bad, they're going to show themselves. If you try faking it, if you try showing that you're more limited than you really are, it's going to come through. These doctors are very smart people. They didn't become doctors by accident. So go out there and give them the best effort you can give them. It helps your case because once a doctor marks down that you might be faking it, you might be malingering. You might not be putting your best effort into the testing. It's going to show itself. It's going to be right in the judge's face, and it's going to make you look bad. Give them the best effort you can. Try as hard as you can when you go for these exams and these tests, and it's really going to help your case. Also, another thing I see people do all the time is they're trying to show how bad their overall situation is. Like we discussed earlier, there's two categories of injuries. And as a lawyer, I know which path we're going to go down with your particular case based upon your circumstances. And I'll see people on a case where I'm trying to get them an award for a shoulder injury where they had surgery, and they're sitting there telling the doctor, oh, my back, my back. But if you're back at work and you're earning the same amount of money or more money than you were earning before you got hurt, unfortunately, there's no money in the back. And, you know, they're trying to show that their case might have more value by showing that they have this really bad back injury, whether they do or they don't, when the real purpose is a shoulder exam. So let's focus on what we need to do here. Give your doctors and the insurance doctors your best effort and get through it. The severity of your injuries will show themselves. And if you're trying to malinger, that's going to show itself as well. Just don't do it. It's just not worth it. That's probably the biggest mistake that we see. As a workers' comp lawyer, do I have any permanent disability pro tips? I mean, the biggest tip I can give you is have a good, knowledgeable workers' compensation doctor. And that's important on so many different levels. A good doctor, obviously, is going to give you the treatment that you need to get you as good as they can get you. The second thing they're going to do is they're going to document your file properly so that your lawyer has all the tools they need to go forward. And that kind of brings me to the next point. Having a good attorney is just as important as having a great doctor because your lawyer is going to know how to present the medical evidence that the doctor gives you in the best light possible. And on top of that, your lawyer is going to have the opportunity, if it comes down to it, to cross-examine the insurance company's doctor. So maybe you did go for an IME, and maybe he did write a report that's not so favorable to you. But your lawyer is going to know the law. He's going to know where the value lies in your case, and he's going to know how to extract that. And he's going to know how to cross-examine their doctor and go after him for the things in his report that are hurtful to you and your case. And another great tip, and this is something I tell all my clients all the time, we get calls every day. I went to an IME, and he was rude, and he ignored me. And then I got the report, and it's missing all the things I told him. And it says he did testing that he never did. When people call me up, and they tell me they had a problem with their IME, their independent medical examination, their insurance company medical examination, I tell all my clients the same thing. Take your report. Make a photocopy. Once you're calm, once you have a clear head, sit down with a second copy of that report and take notes. Make notes in the margin. Circle the things that are wrong. Highlight the things that you have a problem with. Make notes and send it to me. And if you really need to, come make an appointment and sit down and say, let's go over that examination. Because when it comes time for me to cross-examine that doctor, you were in the room. I wasn't. I want to know exactly what happened. I want to know your perspective so I know how to go after this doctor for something he might have done wrong and try to help you with your case. So help your lawyer. Make notes in your IME. Write things down and tell your lawyer about it because it's going to help you help him get you more money. And with that, folks, I thank you for your time. I hope I answered your questions. Please, if anybody has any questions, 212-406-8989. And I thank you for your time. Have a wonderful day, everybody.