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Dawn Atkin

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In Utah, Permanent Total Disability(PTD) benefits are reserved for the most serious and disabling conditions.  Essentially, the injured worker must prove that he is unable to work in any capacity unless he receives retraining.  It is a complicated statute.  We highly recommend that you contact an attorney to discuss the particulars of your case.

There are six legal issues in Utah PTD claims, but only two things matter in 75% of cases.

a.  What are the written, medically documented impairments caused by the injury?  List them, specifically.

b.  Do those medically documented impairments prevent a person from working?

Once this quick test is passed, a complete review of all 6 factors of the PTD statute can be examined, and the case perfected before filing with the Utah Labor Commission.

Medically documented impairment (meaning restrictions/limitations) Medically documented as caused by the industrial injury “Serious and tangible impact” (Mecham case no:96-0712. 1999) An impairment rating is not required (Demille case no: 00-1059.  2003)  [Note: An anomoulous Commission case states that if there is under a 3% PPD rating, there may not be a significant impairment  (Cook case no:06-0495.  2010) but that is contrary to higher court decisions and a later Commission case, Dammaschke which found 2% to be a significant impairment.)
If the test cannot be met, the injured worker needs to get better restrictions  from the doctor before filing a claim.

Can be proven with testimony alone.  Any reason for not working meets the test.  (Laier case 04-0540. 2006) “Gainful” does not mean any work, no matter how limited, poorly paid or uncertain.  $180/week is gainful (Badel case no:05-0502.  2008.) $93/week is not gainful (Tarvias case no:06-0705.  2007.)
If the test cannot be met, the injured worker should talk to the doctor about putting them on “no work” status.

Medically documented impairment (or combination of impairments) From any cause or condition (Laier case no: 04-0540.  2006.) "impairment" in this context means restrictions/disability not impairment ratings.  The statute requires a limitation of basic work activities, not elimination the ability to do them entirely.  However, minor limitations will not meet this test.  IE: “no lift over 20lb” does not meet the requirements of this test.  (Jimenez case No.  05-0870.  2009.)

EXCELLENT LIMITATIONS:  Limits on the ability to report for work, communicate with others, remain at work throughout a shift, understanding/carrying out/remembering simple instructions, use of judgment, responding appropriately to supervision/coworkers, ability to see and hear.  Serious limitations in these areas eliminate all work.

VERY GOOD LIMITATIONS: Limits on the ability to lift and carry 10lbs, walk, sit, use of hands to reach/handle. Limits in concentration/focus due to medications or pain.  Limits in these areas will meet the requirements of basic work activities and significantly limit jobs in Other Work Reasonably Available.

GOOD LIMITATIONS: Limits in the ability to twist, bend and stoop (some degree of physical flexibility), constant position changes from sit to stand/walk, restrictions preventing sitting more than 5 hours a day or standing more than 5 hours per day.  These limitations will meet the requirements of basic work activities, but will not eliminate the usual jobs defense uses in Other Work Reasonably Available.

INSUFFICIENT LIMITATIONS: “No overhead work” and “No lifting over 20lbs” do not meet the requirements of limitation on basic work activities.

If you can eliminate a basic work activity entirely, Past Work and Other Work are also met, although you will still need to go through the steps at Hearing.

If the test cannot be met, further restrictions from the doctor are needed before filing the claim.

Medically documented impairments and pain due to the industrial injury Testimony that every job ever held cannot be done due to the industrial impairments.
If a past injury made your client change professions, that will not prevent you from meeting this test, but try to stick to the industrial restrictions. Impairments must also prevent work  “qualified to do at the time of the industrial accident” (Hendricks case no: 04-0548.  2010.)

If the test cannot be met, further restrictions from the doctor are needed before filing a claim.

Based on all medically documented impairments and pain, industrial & non-industrial.  (Avoid using impairments due to subsequent injuries after the DOI.) The test is likely met if basic work activities were eliminated (not just limited). Testimony of attempts to find other work: vocational rehabilitation, workforce services, job searches and applications, speaking to friends.

Vocational Rehabilitation Expert not required, but may be needed in more difficult cases. Other work must pay at least the amount earned at the time of the injury, or, if they were earning the state average weekly wage at DOI, other work must pay the current state average weekly wage.  So, weekly wage is an important issue.  This factor of PTD is easy to meet with high wage earners.

This test is always variable and might not be fully met before filing the claim.  The client can make an appointment with Utah State Vocational Rehabilitation or look for jobs while the case develops.  In cases where the pay was low at DOI (ie: earning minimum wage) and DOT classifications are not clearly eliminated by written restrictions, a vocational expert is needed. 
If Other Work could be Parking Lot Attendant (Sit/stand at will, no lifting) for $8.50 per hour  you have a difficult case.  Get a vocational expert and re-review this issue.

If the injured worker stopped working shortly after the accident and you use only industrial impairments to meet Basic Work Activities, and Other Work, then direct cause is not an issue.  (Significant Impairment and Past Work are required to be based on industrial impairments.)  If other restrictions were needed to meet the requirements of the tests, or the injured worker continued to work for years, direct cause will need to be argued.
Able to work until the industrial accident (or industrial surgery), then unable. (Demille 00-1059.  2003.  And many, many others.) Compare the ability to work and restrictions before and after the accident.   (Chaterley 05-0453.  2008.)

There is no fixing this one before filing.  New medical records stating “can’t work due to the accident” might help, but if such reports did not appear until years after the disability, they will not be given much weight.  The facts rule this issue.

An attorney can review the case and fix the problems before the claim is filed.  When the evidence is already in place, IME reports are more favorable, interrogatories and depositions are easier and more productive.  We can focus on perfecting details instead of worrying about basic requirements.  That means, by the time you get to hearing, the issues are known and easy to address. 

Utah Code
Title 34A Utah Labor Code
Chapter 2 Workers' Compensation Act
Section 413 Permanent total disability -- Amount of payments -- Rehabilitation.
     34A-2-413.   Permanent total disability -- Amount of payments -- Rehabilitation.
     (1) (a) In the case of a permanent total disability resulting from an industrial accident or occupational disease, the employee shall receive compensation as outlined in this section.
     (b) To establish entitlement to permanent total disability compensation, the employee shall prove by a preponderance of evidence that:
     (i) the employee sustained a significant impairment or combination of impairments as a result of the industrial accident or occupational disease that gives rise to the permanent total disability entitlement;
     (ii) the employee has a permanent, total disability; and
     (iii) the industrial accident or occupational disease is the direct cause of the employee's permanent total disability.
     (c) To establish that an employee has a permanent, total disability the employee shall prove by a preponderance of the evidence that:
     (i) the employee is not gainfully employed;
     (ii) the employee has an impairment or combination of impairments that limit the employee's ability to do basic work activities;
     (iii) the industrial or occupationally caused impairment or combination of impairments prevent the employee from performing the essential functions of the work activities for which the employee has been qualified until the time of the industrial accident or occupational disease that is the basis for the employee's permanent total disability claim; and      (iv) the employee cannot perform other work reasonably available, taking into consideration the employee's:      (A) age;
     (B) education;
     (C) past work experience;      (D) medical capacity; and      (E) residual functional capacity.
     (d) Evidence of an employee's entitlement to disability benefits other than those provided under this chapter and Chapter 3, Utah Occupational Disease Act, if relevant:      (i) may be presented to the commission;      (ii) is not binding; and      (iii) creates no presumption of an entitlement under this chapter and Chapter 3, Utah Occupational Disease Act.
     (e) In determining under Subsections (1)(b) and (c) whether an employee cannot perform other work reasonably available, the following may not be considered:
     (i) whether the employee is incarcerated in a facility operated by or contracting with a federal, state, county, or municipal government to house a criminal offender in either a secure or nonsecure setting; or      (ii) whether the employee is not legally eligible to be employed because of a reason unrelated to the impairment or combination of impairments.
. . . .
R612-1-10. Permanent Total Disability.
A. This rule applies to claims for permanent total disability compensation under the Utah Workers' Compensation Act.
. . . .
D. For purposes of this rule, the following standards and definitions apply:
1. Other work reasonably available: Subject to medical restrictions and other provisions of the Act and rules, other work is reasonably available to a claimant if such work meets the following criteria:
a. The work is either within the distance that a resident of the claimant's community would consider to be a typical or acceptable commuting distance, or is within the distance the claimant was traveling to work prior to his or her accident;
b. The work is regular, steady, and readily available; and
c. The work provides a gross income at least equivalent to:
(1) The current state average weekly wage, if at the time of the accident the claimant was earning more than the state average weekly wage then in effect; or
(2) The wage the claimant was earning at the time of the accident, if the employee was earning less than the state average weekly wage then in effect.
. . . .

K. Dawn Atkin
Attorney with Atkin & Associates
(801) 521-2552
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