Permanent Total Disability Under Vermont Workers' Compensation Law
| Publication year | 2006 |
| Citation | Vol. 2006 No. 06 |
June 2006 - #2. PERMANENT TOTAL DISABILITY UNDER VERMONT WORKERS' COMPENSATION LAW
A. Enumerated Injuries
B. Non-Enumerated Injuries
C. Legal Tests for Determining PTD Entitlement for Non-Enumerated Injuries
D. The Odd-Lot Doctrine
E. Defenses III. EVIDENCE OF PTD
A. Expert Medical Opinion
B. Opinions of Psychologists or Psychiatrists
C. Permanent Impairment Ratings
D. Vocational Assessment
E. Functional Capacity Evaluations IV. CALCULATING DURATION AND AMOUNT OF PTD INDEMNITY BENEFITS PAYABLE V. PTD SETTLEMENT AGREEMENTS
A. The SSDI Offset
B. Medicare and Medicaid
C. Private Disability Insurance CONCLUSION
Vermont workers' compensation law regarding permanent total disability (PTD) has expanded and changed substantially in the last two decades. Here, we offer a taxonomy of the permanent total disability statutes, rules, and case law. Our hope is that better informed claimants' counsel will assist more PTD claimants to receive their full benefit allocation.
Highlighted first are the legal factors which determine claimants' PTD eligibility, and the types of evidence which generally inform that analysis. A discussion of how to calculate the dollar amount and duration of PTD payments due to entitled claimants follows. Finally, the authors advise how to maximize claimants' net PTD recoveries, and coordinate PTD settlements with other benefits that individual claimants may be entitled to receive as a result of their work-related injuries, such as Social Security Disability Insurance, Medicare, Medicaid, or private disability insurance. In this way, unnecessary diminishments of those non-PTD benefits can be reduced or eliminated.
Permanent Total Disability ("PTD") claims in Vermont are founded on Section 644 of the Vermont Workers' Compensation Act (the "Act").(fn1) Section 644, entitled "Permanent total disability" states:
(a) In case of the following injuries, the disability caused thereby shall be deemed total and permanent:
(1) The total and permanent loss of sight in both eyes;
(2) The loss of both feet at or above the ankle;
(3) The loss of both hands at or above the wrist;
(4) The loss of one hand and one foot;
(5) An injury to the spine resulting in permanent and complete paralysis of both legs or both arms or of one leg and one arm; and
(6) An injury to the skull resulting in incurable imbecility or insanity.
(b) The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the commissioner shall consider other specific characteristics of the claimant, including claimant's age, experience, training, education and mental capacity.(fn2)
In practice, the six injuries and combinations of injuries listed in subsection 644(a) are called "enumerated injuries." The six enumerated injuries are conclusively "deemed permanent and total" by the statute. As this list demonstrates, PTD claims involve catastrophic injuries for claimants.
Subsection (b) of Section 644 provides that the "enumeration in subsection (a) . . . is not exclusive." Therefore, "non-enumerated injuries" may also qualify for PTD. Non-enumerated injury claims generate the bulk of PTD disputes requiring resolution by the Vermont Department of Labor (the "Department")(fn3) or the courts.
PTD claims are generally the largest in medical scope and dollar value of all possible benefit claims in Vermont's workers' compensation system. Medical treatment costs for such serious injuries are often substantial. As a general rule, the carrier's obligation to pay medical benefits for the work injury extends for the claimant's lifetime.(fn4) In addition to medical costs, compensable PTD claims also require payment of weekly cash "indemnity"(fn5) payments to claimants for a minimum of 330 weeks, and, if the claimant remains disabled from work thereafter, for the rest of his or her life.(fn6)
A PTD indemnity payout calculation over a hypothetical claimant's lifetime, is set forth in Table 1 (see page 2).
Table 1 shows that Mr. Doe will receive an aggregated total amount of $1,345,353.45 in weekly PTD over his thirty-two year remaining life expectancy, a sum which includes annual cost of living adjustments as prescribed by law.(fn7) Table 1 also reduces the lifetime amount payable to its "present value" of $597,151.04, by discounting the thirty-two year payout stream according to U.S. Treasury investment yield rates.(fn8) In practice, claims are initially reviewed for settlement purposes at their present value.
As discussed above, Section 644(a) of the Act sets out six enumerated injuries which automatically entitle a claimant to PTD. If the claimant's injuries match the statutory description, a conclusive presumption of eligibility arises. Thus, for example, a claimant who suffers "the loss of both feet at or above the ankles" from a work injury automatically qualifies for PTD under Section 644(a)(2), without further inquiry. While the question of PTD entitlement is usually readily discernable for enumerated injuries, non-enumerated injury cases often present more challenging issues.
Subsection (b) of Section 644 (quoted above in Part I) does not provide an affirmative statement of what types of non-enumerated injuries qualify for PTD. The only guidance provided by the statute is that the six enumerated injuries are not "exclusive," and that in making the eligibility determination, "the commissioner shall consider other specific characteristics of the claimant, including claimant's age, experience, training, education and mental capacity."(fn9) In practice, in PTD cases under Section 644(b), the claimant cannot return to work.
Often, such cases involve not a single injury, but rather a combination of work injuries that occur concurrently, in separate incidents, or as a result of medical complications. For example, John Doe suffers an accident with heavy machinery resulting in the loss of a leg and also the herniation of multiple spinal discs. Even if the spine injury is not paralyzing, as required by the comparable enumerated spine injury in Section 644(a)(5), it may yet cause severe and continuous pain and physical disability. Faced with these permanent medical conditions, the loss of a career and important life activities, and a lifetime of pain, John may also suffer permanent depression, adjustment disorder, or another disabling psychological condition.(fn10) Although none of the specific injuries in this example are enumerated injuries in Section 644(a), when such a combination of non-enumerated injuries causes a permanent loss of work capacity, the claimant will generally be eligible for PTD under Section 644(b).
The facts of how non-enumerated injuries create PTD eligibility are as varied as the claimants and their respective injuries. The legal tests used for making the PTD eligibility determination for non-enumerated injuries sometimes raise very fine distinctions, and may also vary depending on when the injury occurred, as discussed below.
Several legal tests have been established through Department and Vermont Supreme Court case law for determining PTD eligibility in non-enumerated injury cases. The two seminal cases are Bishop v. Town of Barre and Gravel v. Cabot Creamery, discussed below. These cases were both decided prior to the legislative amendment to Section 644(b), effective July 1, 2000, which allows for consideration of claimant-specific factors such as the claimant's age, education, and vocational skills.(fn11) Nevertheless, the Bishop and Gravel analyses remain the foundations of Vermont's PTD jurisprudence.
In Bishop v. Town of Barre, the claimant argued that PTD should be evaluated by reference to any factor which restricts his capacity to work.(fn12) At his hearing before the Department, the claimant presented testimony that, taking into account his specific age, training, and educational background, his work injury would prevent him from ever working again.(fn13) The Department in turn considered these individual employability factors as evidence in concluding that the claimant was permanently and totally disabled.
On appeal, however, the Supreme Court held that it was error for the Department even to consider such "individual wage loss" evidence. The Court noted:
[G]iven the Act's history and structure, we must reject the claimant's contention that individual wage loss should be considered in computing permanent benefits. The plain meaning of the statute precludes consideration of individual wage loss.(fn14)
Rather, the Court held, permanent total disability eligibility is calculated "solely on the basis of physical impairment."(fn15) However, the Court's opinion did not define the term "impairment." Subsequent cases have fleshed out the concept, as we shall see.
The Bishop court also prescribed a "proportionality" test for PTD. In this analysis, the claimant's non-enumerated injuries are to be compared to the enumerated injuries listed in Section 644(a), to determine whether they are proportionate to one another. As the Court explained:
[t]o be proportionate, awards for [non-enumerated] injuries must be computed with reference to...
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