Permanent disability is a benefit to offset inability to work due to workers comp injuries and is based on impairment. How impaired is the injured worker due to the workers compensation injury? Impairment in workers comp injuries is usually based on the American Medical Association (AMA) guidelines to permanent impairment. However, it is important to note that workers comp impairment is NOT workers comp permanent disability. This is a common misconception regarding California workers compensation laws and benefits.
Workers Comp Permanent disability takes into account several other factors to determine final Permanent Disability. Permanent Disability is adjusted for: age, occupation, FEC, wages, and apportionment. This then gets paid out bi-weekly at your workers comp weekly disability rate. You should always obtain a DEU rating or adjust impairment to final PD before discussing the value of your permanent disability.
As a workers compensation case can be so incredibly complex it is best that only an experience Orange County workers compensation attorney handle your claim. This will give you peace of mind knowing that all administrative aspects, deadlines and other issues regarding your claim are handled appropriately.
Occupational Variant For Permanent Disability
What kind of job did you have when you suffered a workers comp injury? What were the duties of your occupation? What kind of injury did you suffer? An injured worker who works outdoors make more use of the foot and knee than an injured worker who works at a desk. This is very important and often times ignored issue. What were you doing when you were hurt? Sometimes the workers comp insurance company will say that you had a less strenuous job, when actually, at the time you were injured you had different job duties.
Age (as an adjustment to permanent disability)
Generally, the younger one is, the less permanent disability they will have. Why is permanent disability less for the younger? Because permanent disability in California workers comp is supposed to take into account diminished future earning capacity. Therefore, that a younger injured worker has more time to earn wages. Then, the opposite is true for an older injured worker. The older the injured worker is, the higher the age adjustment for permanent disability due to less time to work.
Dmished Future Earning Capacity (DFEC)
Another factor in final workers comp permanent disability is the DFEC factor. In permanent disability, there is a multiplier to take into account inability to work due to a workers comp injury. The multiplier is an estimate, really a generalization for the occupation and injury. THIS CAN BE REBUTTED. Per the holding in Ogilvie I/II/III, the DFEC factor is rebuttable. If the DFEC assumptions do not apply in an injured worker’s case, then the DFEC should be rebutted. Generally, this requires expert testimony and testimony from the injured worker in workers comp.
The worker should keep a job search log to show that the DFEC factor does not adequately take into account the worker’s difficulty in finding a job with an injury. The expert should provide testimony to the workers comp judge that the DFEC factor has been rebutted and why.
One of the more confusing aspects of California workers comp claims is apportionment. Many injured workers are unaware of what apportionment is and how it pertains to their case. In terms of workers compensation law in California workers comp apportionment means slicing the workers comp disability up between different things. Usually, there is apportionment to causation of the injury. What caused the workers comp injury? Is 50% of the workers comp injury attributable to some other cause like a car accident or prior injury? If yes, then the disability is reduced. Having an experienced Irvine California workers compensation attorney on your side is a wise move as they are familiar with all of the nuances and laws surrounding workers compensation law. Their experience and knowledge of the law will be of great benefit to your case.
Weeks of Permanent Disability
The final permanent disability rate is paid out weekly at the permanent disability rate. Most of the time the workers comp permanent disability rate is $230 per week. The extent of the disability determines the number of weeks the injured workers gets paid permanent disability.
Also, some workers comp injuries allow for a workers comp life pension. The life pension comes into play if the injured worker has a disability rate of 70% or higher.
Social Security and Workers Comp
Many times, if an injured worker is disabled, they apply for or receive social security benefits. Social Security disability (RSDI) benefits are paid to the disabled who qualify. However, if social security pays for a workers comp injury due to a disability, and the injured worker is paid for their disability through workers comp, then their could be an offset, reduction, or termination of social security disability benefits.
However, many times the permanent disability paid out in workers comp has little or no effect on social security disability. This is because the small amount of workers comp permanent disability is prorated over the life expectancy of the injured worker. A competent workers comp attorney can help you to address social security and workers comp. Also, if you are social security retirement, there may be no effect on your social security retirement due to a workers comp injury. Again, retaining a Newport Beach workers compensation lawyer will help you as they will make sure you obtain all benefits and forms of compensation you are entitled to.
Medicare And Workers Compensation Benefits
Many times, an injured Orange County worker receives social security disability because of a workers comp injury. Then, as part of social security disability, the injured worker gets Medicare. If you are on medicare and receive workers comp, you may need an MSA (medicare set aside). This is because the United States Government does not want the taxpayers to pick up the tab for workers comp injuries.
Therefore, an MSA may be required to determine what Medicare’s interest is in your future medical care due to workers comp injury. How does an MSA work? There are two steps to workers comp MSAs.
First, is an MSA proposal. What is the injured worker and the workers comp insurance proposing is the Medicare Set Aside (MSA)?
Second, is MSA approval. How long does it take to get an MSA approval? Medicare must approve the workers comp settlement. This process can take a long time and the injured worker should be prepared for the 3 months to 1 year an MSA takes. CMS’s goal is to have workers’ comp set asides done in 90 days. However, complex cases take a lot longer than this usually. Also, the workers comp insurance company can get very aggressive on their proposals, and Medicare may not accept the workers comp MSA and require a higher settlement amount.
This can create headache to say the least. Will you finalize the settlement before it gets submitted to Medicare? Will the workers comp carrier hold the injured worker harmless if Medicare increases the MSA? These are very important questions that you should speak to workers comp attorney about.
Do not hesitate to contact Orange County Workers Compensation Lawyer Shaun Cunningham today to discuss filing your workers compensation claim in Orange County. He offers free consultations and charges no fee unless he recovers on your behalf. With this n mind you cannot afford to not contact him immediately.