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  • On the Job Injury
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Todd R. Tatro Attorney at Law
6061 North Fresno Street Ste. 108 Fresno, CA 93710


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Permanent Disability Benefits

A person who has been injured on the job is not always simply dealing with the pain brought on by their injuries, but often times they are also dealing with the physical incapacity that results from many injuries. In some sense, this reduced capacity to perform everyday tasks or what is often referred to as “activities of daily living” this can be even more troublesome than any discomfort you are experiencing. It makes the injury seem worse, and it makes recovery feel longer. As a result, all you want when you are injured is to get better and to try to get your quality of life back and return to work.

Unfortunately, some people suffer such severe injuries that a full recovery is not possible. Their bodies can only do so much to compensate for the damage inflicted by the accident. For these people, physical incapacity can become a way of life. The normal existence that they knew before they were injured may be gone forever. Legally, this impairment and how it affects their activities of daily living, including work is what is known as a permanent disability.  The California Courts have recognized that permanent disability is the irreversible residuals of an injury.  A permanent disability is one which causes impairment of earning capacity, impairment of the normal use of a member, or a competitive handicap in the open labor market.  Thus, permanent disability payments are intended to compensate a worker for both physical loss and loss of some or all of their future earning capacity.

The reality is that the workers’ compensation system as it is currently structured, never really fully compensates an individual for all that they have lost due to an industrial injury.  That is why it is important in many cases to be represented by an attorney who is on your side to help try and maximize whatever workers’ compensation benefits, including permanent disability that your might be entitled to as a result of your industrial injuries.  Such an attorney is Todd R. Tatro.  Mr. Tatro is a Certified Specialist in Workers’ Compensation Law, and both he and his staff are very knowledgeable and experienced in dealing with these types of issues on behalf of injured workers, and the initial consultation is free.  It is important to point out that Mr. Tatro and his firm only represent injured workers and not employers or workers compensation carriers.

California’s workers’ compensation laws provide relief for individuals who are permanently disabled as a result of an on the job injury. In California, all work-related permanent disabilities are measured as a percentage from 0% to 100%.  Under this system, and as defined by the current 2005 permanent disability rating schedule, a person with a 0% level of permanent disability means that their injuries have not resulted in any reduced earning capacity, whereas a person with 100% level of permanent disability would be considered to be permanently totally disabled, with a total loss of earning capacity.

As to those individuals who have a permanent disability greater than 0%, but less than 100% (between 1% to 99%), depending on their percentage they would be considered to have sustained a level of permanent partial disability. Therefore, someone with a work-related permanent disability could be entitled to receive either total permanent disability or partial permanent disability benefits depending on the nature and extent of their injuries and resulting disabilities.  Again, any permanent disability that results from an industrial injury generally takes into consideration not only physical loss that results from an impairment standpoint utilizing the AMA Guides, 5th Edition based on a doctor’s opinions regarding such, but also the injury’s effect on the person’s future earning capacity in order to arrive at the appropriate percentage of disability related to the subject injury.

In this article, we’re going to take a closer look at California’s workers’ compensation permanent disability laws. Specifically, we’ll look at the process of how to qualify for permanent disability benefits, and how the amount of permanent disability is normally determined.

Qualifying for Permanent Disability Benefits

If you’ve been injured on the job, your attending physician will prescribe a round of medical treatments that are designed to heal you as quickly as possible. However, as we have discussed, there are some injuries so severe that their effects are not eliminated by medical treatment. Nevertheless, once a period of time for treatment has passed and the treating or evaluating physician are of the opinion the injury has stabilized or plateaued and is unlikely to change substantially within the next year with or without medical treatment the person will be found to have reached permanent and stationary (P&S) status or what is now known as maximum medical improvement (MMI).  At that point, the treating or evaluating physician can address any residual whole person impairment the individual may have under the American Medical Association (AMA) Guides (Fifth Edition) to assist in determining the percentage of disability that may have been caused by their work injury.

If you’ve reached a plateau in the treatment of an on the job injury, you are left with very few, if any viable options. You could depending on the nature of your injury be facing a lifetime of operating at limited capacity. Day to day tasks, including your activities of daily living that many take for granted could be difficult or maybe impossible to perform. Pain and discomfort along with any physical losses or residuals from your injuries may be constant companions. In short, your life has been irrevocably changed for the worse.

As indicated above, under California law, you may be entitled to compensation for the permanent disabilities caused by your workplace accident. To begin the process of qualifying for permanent disability benefits, once you reach MMI status or it appears that you will be reaching such in the near future, your attorney (if you are represented) will ask your doctor to prepare what is known as a “permanent and stationary,” or P&S report. The P&S report normally addresses the details of your injury, outlines your treatment including the specific medical problems you have, sets out your current subjective complaints along with any physical (objective) findings, their diagnosis of your injuries, and opinions on any whole person impairment you might have related to your injuries consistent with the AMA Guides, 5th Edition.  The physician’s P&S report will also typically address the issues of apportionment of any impairment/disability found to industrial and non-industrial factors, medical care that you will need in the future and whether you will have any work restrictions that would interfere with your ability to return to your old job with our without restrictions or modifications.  If you cannot return to your old job with or without restrictions or the employer does not have any modified or alternative position available consistent with your restrictions, then you could be considered to be a qualified injured worker entitled to a supplemental job displacement benefit for retraining purposes.  In addition, the report will also contain your doctor’s prognosis regarding your condition going forward.

The P&S report as indicated, will also contain your doctor’s opinion on what is known as “apportionment”.  This is the doctor’s opinions on whether any other prior or subsequent injuries or conditions that you might have, outside of your most recent on the job injury, had any effect on or contributed in any way to your condition and the level of disability found. If your doctor feels that such factors did, in fact, contribute to your condition, then they will in most cases offer an opinion as to what percentage of your current permanent disability can be attributed to those prior or subsequent injuries or conditions (non-industrial factors). Apportionment is one of the issues a doctor is required to address by statute, and is measured as a percentage of the whole. By way of example, your doctor might estimate that 50% of your current condition can be attributed to prior or subsequent injuries or other non-industrial conditions.  Although under this example the non industrial apportionment found by the doctor would not eliminate your case or entitlement to benefits for that injury, it would in essence reduce the level of permanent disability related to that injury by 50% from that to which you might otherwise have been entitled if there had been no apportionment to non-industrial factors.

Again, in the P&S report your doctor will generally offer an impairment “rating” using guidelines established by the American Medical Association (AMA) to assist in determining your overall disability related to your industrial injuries or conditions.  Under the AMA Guides (Fifth Edition), your doctor may also state how much loss of use has occurred in the parts of your body affected by the injury, and its effect on your activities of daily living (ADL’s).  By law the evaluating physician has to address any impairment related a person’s injuries in accordance with the AMA Guides, and must stay within its four corners when providing their opinions on the actual accurate level of impairment related to an individual’s injuries.    Once a final report addressing permanent disability and related issues has been received, your attorney will review the content and determine whether a supplemental report is needed from the physician or whether the case is ready for settlement.  They will also make sure that a copy of the report has been sent to the administrator overseeing your claim. Pending agreement of all of the parties involved, if you were found to have any permanent disability would now be qualified for permanent disability benefits.

However, even though there is an indication you may be entitled to permanent disability benefits, whether you receive permanent disability advances pending settlement of your case will depend on a couple of factors.  For instance, if your employer has offered you a position that pays at least 85% of the earnings you were being paid at the time of injury or if you are employed in a position that pays at least 100% of the wages and compensation paid at the time of injury, then you would not be entitled to permanent disability advances until your case settles.  At that time, you would be entitled to payment of any permanent disability benefits that had accrued either from the day following the last date your received temporary disability, or the date that you were considered to have reached permanent and stationary status.  In the event you are not working or your employer has not offered you a job consistent with the above, then you would usually be entitled to permanent disability advances within 14 days after the date of the last payment of temporary disability, and such will continue until the employer has paid out an reasonable estimate of the permanent disability benefits due and if the amount of permanent disability benefits due has been determined, until that amount is paid.  It should be kept in mind that any permanent disability advances received prior to any final settlement or Award will be applied as a credit towards the overall value of the level of permanent disability owed for that injury.

Disability Benefit Amounts

California workers’ compensation law establishes a system to determine the amount of money that a worker with a permanent disability will receive for any given work related injury. This amount can vary from case to case and is dependent upon several different factors and issues, including:

  • The date of injury
  • The body part and type of injury that resulted in the impairment/disability in question
  • The evaluating physicians opinions on the whole person level of impairment related to the industrial injuries or conditions found under the AMA Guides
  • The scheduled adjustment of the impairment found for diminished future earning capacity based on date of injury and body part involved
  • The occupational group and age of the individual at the time of injury
  • The rating of the disability either agreed upon by the parties involved or found at trial by the Workers’ Compensation Judge
  • The existence of any pre-existing or non industrial  apportioning factors and
  • The average weekly earnings at the time of injury or earning capacity of the individual at the time of the injury.

As a rule, the more severe an injury is, the higher the level of the disability rating it will receive. In turn, because permanent disability indemnity benefits are based on a progressive schedule, the higher the level of disability, the greater the value of the benefits the individual will actually receive for that injury and resulting disability.   Likewise, the existence of any apportionment to prior or subsequent injuries or other non industrial causes will result in lowering the amount of benefits due despite the severity or overall rating, given any apportioned percentage of disability found is deducted off the top of the total percentage due for that body part or condition.

All of these factors are variables that potentially could to some extent be subject to interpretation or characterization. This is why having an experienced California workers’ compensation attorney like Todd R. Tatro on your side is so important. Mr. Tatro will fight to try and insure that you receive every dollar of compensation that you’re entitled to. Contact him today for a free, no-commitment consultation at (559) 431-0123, or through his online contact page.