Permanent Partial Disability

A Permanent Partial Disability (“PPD”) is found where you have an ongoing impairment that affects your earning capacity. Any injury that involves a permanent impairment to the neck, back, or other body system or function is resolved by a finding of a PPD. The statute does not provide for an SLU in a case involving the neck, back, or other body system or function.

A finding of PPD or Classification often occurs two years after the accident or surgery, once your doctor or an IME has opined that you have reached MMI.

For injuries that occurred prior to March 10, 2007, there is no cap on Lost Wage benefits. In these cases, a finding of a permanent partial disability entitles you to lifetime Lost Wage benefits at the rate found at the time of permanency or Reduced Earnings.

For cases after March 10, 2007, there is cap on how long you can receive benefits. The duration of benefits is based on your “Loss of Wage Earning Capacity” (“LWEC”), which is expressed as a percentage.

As expressed in the chart below, the duration of benefits ranges from 225-525 weeks.

Loss of Wage Earning Capacity

The Court determines the LWEC by first determining your percentage of permanent medical impairment and then takes into consideration vocational factors, such as:

• Age,
• Education,
• Experience, and
• Your residual capacity.

The percentage of LWEC determines how much and for how long you will receive Lost Wage benefits. Again, the legislature uses a chart to set forth the number of weeks for different percentages. As you will see in the chart below, the number of weeks starts at 225 and goes to 525 for a 99% LWEC. Typically, this is referred to as a “cap” on Lost Wage benefits.

Permanent Total Disability

The law allows for lifetime Lost Wage benefits if you are found to have a 100% LWEC. This is referred to as a “Permanent Total Disability” (“PTD”).

There is also a provision in the law that allows for an argument to be made for an “Industrial Total Disability” (“ITD”). This differs from a PTD because there must be some other special factor which would support an ITD. This most often happens with people who have problems with the English language or some sort of impairment to their mental abilities. There’s a thin line between a permanent 100% LWEC and an ITD, but the end result is a guarantee of lifetime benefits.

Hardship

The law also provides that if your LWEC exceeds 80%, you may make a “Hardship Application” for ongoing benefits one year prior to the expiration of your benefits. As this law did not come into effect until March 2007, there are no reported cases as to what constitutes a “hardship.”

Permanent Partial Disability in Extremity Cases

A PPD may also be found in cases that otherwise would have been amenable to an SLU, but for the fact that the condition is progressive, chronic, and disabling. Sometimes, this occurs in cases that involve both legs or both arms. Often, there is an important strategic decision to be made when deciding to pursue a PPD versus an SLU. As you would expect, this is often highly contested by the Carrier.

The Carrier, however, has significant defenses to payment of PPD benefits in all cases, regardless of the date of accident. When someone is found to have a PPD, the law imposes an obligation to show attachment to the workforce as discussed in the Chapter entitled “Labor Market Attachment.” If successful, the Carrier may be relieved of the obligation to pay weekly benefits.

At MCV Law, we take steps to ensure that our clients understand their obligations so as to avoid suspension of benefits. We also start to think about how your case will conclude at the outset, so as to allow strategic decisions consistent with your goals to be made throughout the case.