The Indiana Workers’ Compensation Law provides several benefits to employees, including, but not limited to, permanent total disability benefits. These benefits are paid when it is established that the employee will never be able to work a reasonable job again.
A PTD award is paid for 500 weeks at the rate of two-thirds (2/3) of the average weekly wage prior to the employee’s injury. See Indiana Code § 22-3-3-8 and Indiana Code § 22-3-3-10.
It should be noted that PTD benefits are offset by the number of weeks of temporary total disability benefits paid. For example, if an employee received 100 weeks of temporary total disability benefits and was later deemed eligible for PTD benefits, then offsetting TTD benefits results in the employee being entitled to 400 weeks of PTD benefits .
In a recent Indiana Court of Appeals case, 6 NE3d 509, an injured worker filed a claim for permanent total disability benefits. The Indiana Workers’ Compensation Board judge determined that the injured worker was not entitled to receive PTD benefits. The injured worker appealed the unfavorable decision to the Indiana Court of Appeals, which upheld the unfavorable decision.
The Indiana Court of Appeals noted that in order to establish a PTD claim, an injured worker must show that they are unable to perform reasonable types of employment. The reasonableness of the type of employment is determined by evaluating the individual’s physical and mental fitness for opportunities and their availability.
The Indiana Court of Appeals further noted that once an injured worker has established the degree of physical disability, along with other facts such as the ability, education, training, or age of the claimant, and has established that he or she has unsuccessfully tried to find work or Since it would be pointless to seek work in light of your disability and other characteristics, the burden of presenting evidence that reasonable employment is regularly and continuously available falls on the employer.
The injured worker argued that the workers’ compensation judge should have awarded PTD benefits based on: 1) the vocational expert’s testimony about the significant erosion of the occupational base; 2) the opinion of the treating physician on applicable functional limitations and restrictions; and 3) the testimony of how the injured worker was functionally prevented from working.
The injured worker also claimed that, having met his burden of proof, the burden shifted to the employer to present evidence “that reasonable employment is available on a regular and ongoing basis.” The injured worker further asserted that because the employer did not contest his EV’s testimony and because the treating physician was the only physical medicine rehabilitation specialist to examine him, the Board should have given more weight to his opinions.
The Court noted that the injured worker had not sought employment since the accident. But that the worker maintained that the totality of the evidence showed that there is no reasonable employment as a matter of law. In support of his allegation, the injured worker stated that he was fifty years old; had a background in medium to heavy jobs; You were unable to return to your previous job or job of similar ability; could not lift more than 10 pounds; could not bend, reach, stoop, or twist; you need to change position every half hour and can only stand for a limited period of time; and that he felt he could only work an hour or two before going to bed.
However, the Court points out that the worker has a university; could lift up to a total of 50 pounds; and was able to drive independently. In fact, even though he was assigned a PPI rating of 30%, none of the doctors who examined the injured employee stated that he was unable to work. Instead, one of the doctors who examined him concluded that he could return to paid employment.
The injured worker also argued that his VE report should not have been discarded because the VE’s inaccurate history was given and the fact that the VE did not review all relevant medical evidence was not material to his VE’s conclusions. However, the Court stated that the injured employee’s position would require re-weighing the evidence, which it was unable to do.
The Court of Appeals concluded that the injured worker had not shown that it would be futile to seek work in light of his disability. In doing so, it concluded that there was sufficient evidence to support the workers’ compensation judge’s findings and that the findings were sufficient to support the decision.
The Bottom Line: This example should serve as a reminder to workers’ compensation attorneys regarding the burden of proof for an injured worker in a PTD claim.
Specifically, this case shows the importance of having a valid functional capacity assessment that is recognized by the treating physician and that a vocational expert provides an accurate report based on the restrictions identified in the FCE and the opinion of the corresponding physician. Additionally, the vocational expert must review all relevant medical records to complete a report. Until then, the burden of proof is not on the employer to provide evidence that reasonable employment is available on a regular and ongoing basis.