Colorado Permanent Disability Rules Put Injured Workers in Tough Spot

Those who have suffered a permanent disability as a result of a workplace injury may be surprised by the amount of benefits they are entitled to recover under Colorado’s Workers’ Compensation Act – and not necessarily in a good way. Depending on the severity of the injury and the worker’s potential to re-enter the workforce, the ultimate amount of benefits may be far less than the injured worker expects.

Disability Impairment Ratings

In Colorado, workers who have suffered a permanent loss of function (referred to as an impairment) of a body part or body system as a result of a workplace injury or disease are entitled to permanent disability benefits. Whether or not an injured worker has suffered a permanent disability is determined by the worker’s treating physician.

Only accredited physicians can assign an impairment rating to an injured worker, unless it’s a 0% rating. The physician will not assign the rating until the worker has reached maximum medical improvement (MMI) – when the injured worker’s condition will not be improved by further medical treatment.

Once a worker has reached his or her MMI, then the physician will determine if the worker has a permanent disability and, if so, assign an impairment rating for the disability. Impairment ratings are given as a percentage. They are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Third Edition.

Permanent Total Disability vs Permanent Partial Disability Benefits

There are two types of permanent disability benefits: permanent total disability (PTD) and permanent partial disability (PPD). PTD benefits are available to those who are not able to return to work due to a disabling injury. To be eligible for PTD benefits, the injured worker must not be able to ever perform any type of work again during his or her lifetime, including part-time work. This is a very high standard to meet and, as a result, it is very difficult to receive PTD benefits in Colorado.

Workers who have suffered a permanent loss of function but still can perform some type of work are entitled to PPD benefits. There are two categories of impairments qualifying for PPD benefits: scheduled, or “extremities,” impairments and non-scheduled, or “whole person,” impairments.

· Extremities impairments cover injuries to fingers, hands, arms, toes, feet, legs, eyes and loss of hearing and vision. These injuries are listed in a schedule of injuries in CRS 8-42-107(2).

· Whole person impairments refer to non-extremity injuries, like those to the spine, back, head, torso, mental impairments and other injuries omitted from the schedule of injuries in CRS 8-42-107(2).

Benefits for Permanent Disabilities

The amount of benefits a worker with a permanent disability ultimately receives is dependent on whether he or she is found to be permanent partially or permanent totally disabled.

Of the two types of benefits, PTD benefits almost always pay much more to injured workers. Once a worker has been deemed eligible for PTD benefits, the worker is entitled to receive the benefits for life. Unlike other disability benefits, PTD benefits are not subject to a maximum life-time cap.

PTD benefits are paid at a rate of 2/3 of the injured worker’s average weekly wage, subject to a state-imposed weekly maximum amount. The current state cap through June 30, 2010, is $807.24. These benefits are also reduced by 50% offset against social security disability or retirement benefits which the worker receives

Workers who have permanent disabilities but who do not qualify for PTD benefits may find themselves in a very difficult financial position. Even though their resulting disability may be severe enough to prevent them from returning to high-paying jobs, their PPD benefits are unlikely to make up the difference, which in turn can result in financial hardship.

Unlike PTD benefits, PPD benefits are subject to limits on the total lifetime amount that can be received, which is based on the worker’s impairment rating:

· If the worker has an impairment rating of 30% or less, then the total maximum lifetime amount of benefits is $75,000

· If the worker has an impairment rating greater than 30%, then the total maximum lifetime amount of benefits is $150,000

Benefits the injured worker received for temporary disability before being assigned a permanent disability rating count towards this lifetime limit. Thus, workers who are assigned impairment ratings 30% or below – which are common with extremities impairments – may reach their lifetime maximums quickly.

Generally, whole-person impairments provide more benefits than extremities impairments. This is due in part to the fact that the age of the worker and the wage rate earned by the worker are taken into account in determining the amount of benefits owed for whole-person impairment. In calculating the total amount of benefits owed for an extremities impairment, only the severity of the injury is taken into account – the worker’s age and wage rate are not factors.

Thus, if a young worker suffers an extremities impairment, such as losing partial use of a hand or arm, the worker is unlikely to receive fair compensation for his or her injury despite the fact that it will impair the worker for the remainder of his or her life.

Impairment and Permanent Disability Are Not Interchangeable Terms

The terms disabled and impaired are often used interchangeably to describe how an injury has impacted an employee’s ability to perform his or her job. However, these are not the same when it comes to assessing the need for benefits. In addition, the term permanent impairment will be subjected to a rating that determines how much impact the injury has on one’s physical or neurological condition. Suffering a permanent impairment will usually result in more benefits.

An example of the difference between the two terms could be illustrated by the following: if one suffers a permanent back injury, that is considered an impairment. The impact that injury has on one’s ability to carry out their job is the extent of the disability. No two workers are affected the same way as one who routinely works a desk job would not be affected in the same way as one who works construction. Therefore, the office worker may not qualify for the same amount of benefits as one who is prevented from engaging in physical labor.

The level of impairment is generally determined by an independent medical provider who will assess the injury and give it a rating. This is referred to as the Impairment Rating Evaluation, (IRE) and it is conducted only after one has missed more than two years of work. The evaluation is needed to assess whether one has suffered a permanent disability. Colorado residents who suffer a work injury are entitled to seek the assistance of an experienced attorney who can help them navigate the system and obtain the maximum benefits according to their particular needs.

Conclusion

Workers who have suffered a permanent disability as a result of an on-the-job injury have the right to receive disability benefits under their employer’s workers’ compensation policy for their injury. Since the ultimate amount of benefits and length of time a worker is eligible to receive them are dependent in large part on the worker’s disability impairment rating, it is imperative that this rating accurately reflects the worker’s true level of impairment.

Workers who disagree with the impairment level assigned by their treating physician have the right to appeal the assessment and request a second medical opinion.

For more information on PPD and PTD benefits, contact an experienced workers’ compensation attorney.