In most cases when a worker is injured on the job he or she recovers from the injury and returns to work. However, there are instances where an injury is so severe that the worker may never be able to return to any type of employment. Insurance companies will try to find some reason to deny these claims, or severely limit benefits. The Swaney Law Firm has handled numerous total disability claims. When you are faced with the prospect of being totally disabled, you need serious legal representation. You can call on our experienced lawyers to provide you with the legal representation that you need. Give us a call for a free consultation.
An employee is entitled to compensation whenever permanent disability results from an accident. Section 287.190 provides a list of body parts and sets maximum levels of compensation. “Chart No. 1” provides a visual picture of the statute and provides maximum rates of compensation. When an employee is able to return to productive employment, despite having a permanent injury, this is called “permanent partial disability”. If an employee can no longer work in the open labor market, this is called “permanent total disability”. In a permanent partial disability case, there will always be a dispute as to the “percentage of disability”. Determining the percentage of disability is a matter of figuring out what evidence you have and forecasting the outcome of a potential trial. Oftentimes, an insurance company doctor will vastly understate the amount of disability sustained by an injured employee. In the absence of evidence challenging the insurance company’s doctor, any settlement obtained is likely to be low. Experienced work comp attorneys will get an independent examination in order to challenge the insurance company’s physician. In addition, if your injuries have been misdiagnosed, then your disability will be understated.
Experience is also crucial in predicting or forecasting the decisions of workers’ compensation judges. Some judges are considered to be more conservative, and other judges are considered to be more generous in awarding benefits. Attorneys who frequently practice in front of these judges are familiar with their views and can avoid trials, in many instances, by accurately forecasting the potential results of a trial. IT should also be noted that, once you settle your case, it cannot be reopened for more treatment, or mistaken diagnosis, unless future medical treatment was specifically left open. There are a few exceptions such as for replacement of prosthetics which are spelled out by law. Keep in mind, you should be very cautious in understanding that there are consequences to settling your claim without considering the possibility of future treatment being needed.
Permanent total disability standards are outlined in Section 287.200 of the Missouri Workers’ Compensation Act. Payments occur over the employee’s lifetime, rather than stopping at retirement age. These benefits can offset Social Security disability payments unless actions are taken on behalf of the disabled employee to appropriately classify settlement monies. Permanent total disability benefits are paid whenever an employee is unable to return to productive employment following an accident.
In permanent total cases, vocational counselors are often retained in order to provide testimony as to the injured employee’s job skills. Insurance companies typically do not want to pay permanent total disability benefits and will attempt to hire a doctor or vocational expert who will protect their interests.
In certain cases, permanent total disability may be the responsibility of the “Second Injury Fund.” If there are significant pre-existing injuries or disabilities which combine to cause permanent total disability, then the Second Injury Fund will be responsible for lifetime compensation. For example, an employee with multiple back surgeries who is injured on the job may be awarded permanent partial disability benefits against his employer and permanent total disability benefits against the State of Missouri if there is a new back injury. In order to be totally disabled against the Second Injury Fund, a judge needs to find that an employee is totally disabled as a result of a combination of the employee’s work injury, along with his pre-existing disabilities.
Contact the Swaney Law Firm to speak to a disability attorney regarding your claim.