AEU Longshore Blog ISSUE: Concurrent Benefits

Under what circumstances can an injured worker receive weekly workers’ compensation benefits concurrently for multiple injuries/multiple claims?

For example, can an injured worker receive permanent partial disability benefits for a scheduled award concurrently with receiving benefits for permanent total disability resulting from a different injury?  Or for another example, can an injured worker receive permanent partial disability benefits based on a loss of wage earning capacity concurrently with receiving benefits for a scheduled award resulting from a different injury?

This issue is not addressed in the statute, so it is necessary to review what general principles have been established in the case law.

What are the benefit types?

A. Disability Compensation Benefits

1. Temporary Total Disability (TTD) Section 908(b) – compensation is paid until the worker is able to return to work or is declared to be medically stable.  TTD applies if an employee’s injury prevents him from working for a period of time, but he is expected to return to work at a later date; he may be under active medical care or the medical condition is expected to improve.  The rate is 66 2/3 percent of the injured worker’s pre-injury average weekly wage, subject to the weekly maximum and minimum rates.  No compensation is paid for the first three days of disability.  If disability lasts more than 14 days, then compensation is paid from the first day.

2. Temporary Partial Disability (TPD) Section 908(e) – compensation is paid during a period of reduced earnings which is not expected to be permanent.  The rate is 66 2/3 percent of the wage loss or loss of wage earning capacity (the difference between wages prior to the injury and wage earning capacity after the injury, subject to the weekly maximum). Compensation is paid for the duration of the disability but limited to five years.

3. Permanent Total Disability (PTD) Section 908(a) – awarded where the worker can not return to his pre-injury employment and there is no evidence in the record of suitable alternate employment that he can perform.  Compensation is paid indefinitely for the continuance of the disability.  The rate is 66 2/3 percent of the worker’s average weekly wage, subject to the weekly maximum and minimum.  The rate is adjusted annually each October 1 based on changes in the National Average Weekly Wage.

4. Permanent Partial Disability (PPD) Section 908(c) –

a) Scheduled Compensation – The Act contains a schedule, rating various types of permanent partial impairments.  The percentage of impairment is converted into the number of weeks of compensation payable at the rate of 66 2/3 percent of the average weekly wage.  The schedule covers the loss or loss of use of extremities, loss of hearing, and loss of vision.  Partial loss, or loss of use of a part of the body listed in the schedule, is compensated on a pro rata basis.  For example, a worker with 10 percent loss of use of an arm receives 31.2 weeks of compensation based on 312 weeks for 100 percent loss of use.  It is not necessary to show actual wage loss for scheduled injuries.  For the rest of this post, I will refer to a permanent partial scheduled award as PPS.

b) Non-Scheduled Compensation – where the injury is not confined to the schedule (e.g., injuries to the back, shoulder, neck), compensation is paid at the rate of 66 2/3 percent of loss of wages, i.e., 66 2/3 percent of the difference between the pre-injury average weekly wage and the post injury wage earning capacity.  For the rest of this post, I will refer to a permanent partial disability based on a loss of wage earning capacity as PPL.

B. Disfigurement
Compensation is paid for disfigurement of the face, head, neck or other normally exposed area likely to prejudice the injured worker’s ability to secure employment.  Disfigurement awards are set by the District Director and cannot exceed $7,500.

What is the “schedule”?

Section 8(c):

(1) Arm lost = 312 weeks

(2) Leg lost = 288 weeks

(3) Hand lost = 244 weeks

(4) Foot lost = 205 weeks

(5) Eye lost = 160 weeks

(6) Thumb lost = 75 weeks

(7) First finger lost = 46 weeks

(8) Great toe lost = 38 weeks

(9) Second finger lost = 30 weeks

(10) Third finger lost = 25 weeks

(11) Toe other than great toe lost = 16 weeks

(12) Fourth finger lost = 15 weeks

(13) Loss of Hearing = one ear = 52 weeks, both ears = 200 weeks

(14) Phalanges – loss of more than one phalange of a digit shall be the same as for loss of the entire digit.  Loss of the first phalange = one-half of loss of entire digit.

(15) Amputated arm or leg – if amputated at or above the elbow or the knee = loss of arm or leg; if amputated between the elbow and the wrist or the knee and the ankle = loss of hand or foot.

(16) Binocular vision or per centum of vision:  for loss of binocular vision or for 80 per centum or more of the vision of an eye shall be the same as for loss of the eye.

(17) Two or more digits: loss of two or more digits or one or more phalanges of two or more digits of a hand or foot may be proportioned to the loss of use of the hand or foot occasioned thereby, but shall not exceed the compensation for loss of a hand or foot.

(18) Total loss of use:  compensation for permanent total loss of use of a member shall be the same as for loss of the member.

(19) Partial loss or partial loss of use:  compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member.

(20) Disfigurement

(21) Covers permanently injured employees who are not totally disabled or retired and whose injuries are not covered by the Schedule.  An award is based on wage earning capacity lost as a result of the injury.

What are the general principles of concurrent benefits?

1. Scheduled Award and Scheduled Award (PPS and PPS)

a. You can receive two (or more) separate scheduled awards for two (or more) separate injuries based on the same accident or for separate injuries in separate accidents.  The awards run consecutively.

b. There are no concurrent awards where the scheduled injury is to a greater member resulting in impairment to a smaller member. The schedule accounts for impairments necessarily caused to smaller members as a result of injuries to larger, connected members.

c. The minimum weekly compensation rate does not apply to scheduled awards.

2. Scheduled Award and Permanent Partial Disability based on a loss of wage earning capacity (PPS and PPL)

a. You can receive concurrent awards for a scheduled injury and for loss of wage earning capacity. The combined rate can be paid up to two-thirds of the worker’s average weekly wage in accordance with section 908(a), even if this exceeds the maximum compensation rate for the fiscal year for a single injury.

b. The section 906(b)(1) maximum does apply to each separate injury.

c. The number of weeks for the scheduled award may be increased and the weekly amount reduced to provide that the schedule is paid in full.  The ALJs have wide discretion here in fashioning awards to make sure that all compensation is paid.

3. Two Permanent Partial Disability awards based on loss of wage earning capacity (PPL and PPL)

a. You can receive concurrent awards for two separate loss of wage earning capacities.  The same maximum combined rate limit applies as for the concurrent schedule and loss of wage earning capacity awards summarized above.  The combined rate for multiple awards can exceed the section 906(b)(1) maximum but not the section 908(a) maximum entitlement of two thirds of the worker’s average weekly wage.

4. Permanent Total Disability and Permanent Partial Disability based on loss of wage earning capacity (PTD and PPL)

a. You can receive concurrent awards for permanent partial disability based on loss of wage earning capacity and for permanent total disability resulting from a later injury. The assumption is that the later PTD average weekly wage is lower because of the existing PPL.

b. In this case the employer is free to seek modification of the PPL award under section 22 if the loss of wage earning capacity is not as severe as had been anticipated at the time of the award.

5. Permanent Partial scheduled award and Permanent Total Disability (PPS and PTD)

a. Generally you cannot receive a scheduled award and PTD (and probably TTD) benefits concurrently.  You can only be 100% disabled.

b. If the scheduled award comes first, you will receive the schedule until the beginning of the total disability payments, at which time the scheduled award will lapse.

c. If the total disability payments cease for any reason the schedule will resume.

d. Concurrent PPS and PTD are not treated the same as concurrent PPL and PTD.

6. Disfigurement

a. You can receive a disfigurement award of up to $7,500 concurrently with any other award.

NOTE:  This has been a very broad summary of concurrent benefits.  As noted above, there are no statutory provisions governing this.  It is likely that we have not seen the end of the possible variations and interpretations in this area.

 

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.