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Workers’ Compensation-Entitlement to Benefits




See Also:


Entitlement to Benefits

If a worker’s injury arose out of and occurred within the course of his or her employment, he or she is likely entitled to workers’ compensation benefits. Generally, there are four types of benefits: temporary disability, permanent disability, medical, and death.

Temporary Disability Benefits

Temporary disability benefits compensate an injured worker for the wages the worker loses during the healing of the work-related injury. Temporary benefits continue until the worker either reaches a limit imposed by state law or “maximum medical improvement” (MMI). MMI occurs when the employee’s condition plateaus, and the employee is believed to be as close to his or her pre-injury condition as he or she will ever become.[1]

Temporary disability benefits can be either partial or total. An injured worker will receive temporary total disability benefits (TTD) if the injury makes him unable to do work of any kind.[2] Most jurisdictions provide weekly benefits of two-thirds the worker’s average weekly wage prior to the injury.[3] However, state laws often cap TTD at a certain percentage of the average weekly wage in that state. For example, Iowa, Vermont and New Hampshire historically allow benefits as high as 150% of the state average weekly wage. However, New York capped weekly benefits at 50% of the state average weekly wage.[4] State law may also limit the duration of benefits. For example, South Carolina limits TTD benefits to five hundred weeks.[5]

A worker will receive temporary partial disability benefits (TPD) if the work injury leaves him only partially unable to work.[6] For instance, the worker may still be able to work part-time or perform light duty. Alternatively, the employer may be able to provide a different, temporary job for the injured worker until he or she reaches MMI.[7]

As with TTD benefits, the amount of TPD benefits that an injured worker can receive varies state by state. For instance, South Carolina caps TPD benefits at 340 weeks.[8]

Permanent Disability Benefits

Permanent disability benefits compensate an injured worker for the permanent loss of earning capacity resulting from the work-related injury. It is generally awarded after the injured worker attains MMI.

As with temporary benefits, permanent disability benefits can be partial or total. Permanent Total Disability (PTD) benefits are awarded when a worker is permanently and totally disabled from working; the worker is not expected to return to work. Whether a worker is entitled to PTD may depend upon not only the worker’s injury, but upon factors such as his or her level of education, level of work skills, and age.[9]

Just like temporary benefits, most states provide PTD benefits of two-thirds the worker’s average weekly wages at the time of the accident. Most states also allow PTD benefits to continue for either the period of disability or the worker’s life. Some states limit PTD, however. For instance, South Carolina caps PTD benefits at 500 weeks, except where the worker has specific injuries, including paraplegia, quadriplegia, or brain damage.[10] Other states may have similar provisions.

Permanent Partial Disability (PPD) benefits are intended to compensate a worker for his or her permanent partial limitation on earning capacity due to the work injury. This means the worker is expected to return to work after MMI, earning lower wages than the worker earned before the work-related injury.

Most states have a dual-approach system for calculating PPD benefits – one “scheduled” and one “nonscheduled.” “Scheduled” PPD benefits are calculated using a specific number of weeks of benefits that state law assigns (or schedules) for the injury of a particular body part.[11] For example, if New York law assigns three hundred twelves weeks for the arm, then if a worker loses an arm, the worker is entitled to 312 weeks of PPD benefits. If the worker loses fifty percent use of an arm, the worker is entitled to 156 weeks of benefits.[12]

As stated above states usually provide weekly benefits at the rate of two-thirds the worker’s average weekly wage before the accident. Therefore, if a worker’s average weekly wage before the accident was $500, then he or she would be entitled to two-thirds of $500 ($333.33) each week. If that worker lost an arm or lost 100% use of his or her arm, he or she would be entitled to three hundred twelve weekly payments of PPD benefits in the amount of $333.33, since state law assigned 312 weeks of benefits to the arm. If the same worker instead lost just 50% use of an arm, he or she would be entitled to 50% of the total number of weeks assigned to the arm (50% of 312 = 156). The worker would be entitled to one hundred fifty six weekly payments of PPD benefits in the amount of $333.33.

Statutory schedules cannot list all possible types of injuries, however. Therefore, states use various systems of calculation for nonscheduled injuries, including the impairment approach, which bases benefits on the seriousness of the injury. Instead, some states use the loss of earning capacity approach, which considers the seriousness of the injury as well as the affect that education, work experience, and age have on earning capacity. Other states, such as New York, have used the wage-loss approach, which provides PPD benefits based upon the worker’s actual wage loss.[13]  California law considers the worker’s physical impairment, age and occupation, but does not consider the worker’s diminished future earning capacity.[14]

Medical Benefits

Injured workers are generally entitled to medical treatment that is reasonably required to cure or relieve the symptoms of the work-related injury.[15] Such treatment and expenses may include doctor visits, medications, surgeries, hospitalizations, physical therapy, nursing services, and equipment. The injured worker is not responsible for deductibles or co-insurance payments. Additionally, the worker can receive medical benefits for as long as they are medically needed.[16] The benefits are not limited to a specific number of weeks as with disability benefits.

The injured worker is generally obligated to accept medical treatment that is deemed necessary by his or her treating physician. If the claimant refuses treatment, the employer may have the right to suspend weekly disability benefits until the claimant complies, unless the court finds that the claimant’s refusal of treatment was justified.[17] State laws vary regarding who chooses the treating physician. For instance, in South Carolina the employer usually chooses, but in New York the employer is usually not allowed to choose.[18]

An employee may also be entitled to travel expenses associated with medical treatment, including mileage, lodging, and food.[19]

Death Benefits

An injured worker’s family may be entitled to benefits if the worker dies as a result of the work injury, either immediately or while the work-related disability continues. Generally, limited burial expenses are allowed, as well as disability benefits. However, the amount of benefits to which surviving family members are entitled varies state by state. For example, in South Carolina surviving dependents are entitled to compensation benefits to the same extent as the deceased worker would have been, had he or she survived.[20] In contrast, the extent of death benefits under California law depends upon the number and age of the worker’s dependents.[21]

Once entitlement to benefits is established, an injured worker can rest assured that he or she will receive some type of compensation to assist him with temporary wage replacement and medical expenses. However, the types and extent of benefits to which the worker is entitled to may be confusing and can vary greatly, depending upon the jurisdiction.



Footnotes


[1] Beard, G. L., Poteat, S. T., Lamar, M. J., Sumwalt, V. R., Bluestein, M. M., & Sullivan, A.P. (2012). The law of workers’ compensation insurance in south carolina sixth edition. Benefits. (Chpt. 9, pp. 325-330). Columbia, S.C.: South Carolina Bar Continuing Legal Education.

[2] Id. at 325.

[3] American Bar Association (2007, May/June). From John Burton’s workers’ compensation resources: workers’ compensation policy review [Vol. 7, Issue 3, p. 8]. Retrieved from http://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2011/ac2011/087.authcheckdam.pdf

[4] ABA at 8.

[5] Beard at 327, 382.

[6] Id. at 325.

[7] Id. at 325-327.

[8] Id. at 327.

[9] Id. at 354; ABA at 11.

[10] Beard at 354-355; ABA at 11.

[11] Beard at 340 (citing 2A. Larson, The Law of Workmen’s Compensation § 58).

[12] ABA at 8.

[13] ABA at 8-11.

[14] State of California Department of Industrial Relations (2013, March). Permanent disability benefits. Retrieved from https://www.dir.ca.gov/dwc/PermanentDisability.htm.

[15] Beard at 361-362; State of California, Department of Industrial Relations, Division of Workers’ Compensation (2016). Physician’s guide to medical practice in the California workers’ compensation system [Fourth Edition, Chpt. 5, p. 24]. Retrieved from http://www.dir.ca.gov/dwc/medicalunit/toc.pdf

[16] ABA at 6; CA Physician’s Guide at 24.

[17] Beard at 364-366.

[18] Id. at 364, 368-369; New York State Workers’ Compensation Board (2011, Dec.). Employer’s handbook to workers’ compensation in New York state: a guide to the workers’ compensation and the disability benefits systems for the New York state business owner [Chpt. 7, p.82]. Retrieved from http://www.wcb.ny.gov/content/main/Employers/EmployerHandbook.pdf

[19] Beard at 372-373.

[20] Id. at 358-359.

[21] CA Physician’s Guide at 27.