Website design By BotEap.comThe Indiana Workers’ Compensation Law provides various benefits to employees, including, but not limited to, permanent total disability benefits. These benefits are paid when it is established that the employee will never again be able to work at a reasonable job.

Website design By BotEap.comA PTD award is paid for 500 weeks at the rate of two-thirds (2/3) of the employee’s pre-injury average weekly wage. See Indiana Code § 22-3-3-8 and Indiana Code § 22-3-3-10.

Website design By BotEap.comIt should be noted that PTD benefits are offset by the number of weeks of temporary total disability benefits paid. For example, if an employee earned 100 weeks of temporary total disability benefits and was later found to be entitled to PTD benefits, by offsetting TTD benefits, the employee would be entitled to 400 weeks of PTD benefits.

Website design By BotEap.comIn a recent Indiana Court of Appeals case, 6 NE3d 509, an injured worker filed a claim for permanent total disability benefits. The Indiana Workers’ Compensation Board judge determined that the injured worker was not entitled to an award of PTD benefits. The injured worker appealed the unfavorable decision to the Indiana Court of Appeals, which upheld the unfavorable decision.

Website design By BotEap.comThe Indiana Court of Appeals noted that in order to establish a PTD claim, an injured worker must prove that he or she is unable to perform reasonable types of employment. The reasonableness of the type of employment is determined by evaluating the individual’s physical and mental fitness for the opportunities and their availability.

Website design By BotEap.comThe Indiana Court of Appeals further noted that once an injured worker has established the degree of physical disability, along with other facts such as the claimant’s ability, education, training, or age, and has established that he or she has tried unsuccessfully to find work or that it would be futile to seek work in light of your disability and other characteristics, the burden of producing evidence that reasonable employment is regularly and continuously available then falls on the employer.

Website design By BotEap.comThe injured worker argued that the workers’ compensation judge should have awarded PTD benefits based on: 1) the vocational expert’s testimony of significant erosion of the occupational base; 2) the opinion of the treating physician on the applicable functional limitations and restrictions; and 3) testimony about how the injured worker was functionally impaired from work.

Website design By BotEap.comThe injured worker also asserted that, having met his burden of proof, the burden shifted to employing to present evidence “that reasonable employment is regularly and continuously available.” The injured worker further asserted that because the employer did not question his VE’s testimony and because the treating physician was the only physical medicine rehabilitation specialist to examine him, the Board should have given his views greater weight.

Website design By BotEap.comThe Court noted that the injured worker had not looked for work since the accident. But that the worker maintained that all the evidence showed that there is no reasonable employment as a matter of law. In support of his claim, the injured worker stated that he was fifty years old; he had a background in medium to heavy work; he was unable to return to his previous job or job of a similar capacity; he couldn’t lift more than 10 pounds; he couldn’t bend, reach, stoop or twist; he needs to change position every half hour and can only stand for a limited time; and that he felt that he could only work an hour or two before going to bed.

Website design By BotEap.comThe Court notes, however, that the worker has a college; he could lift up to a total of 50 pounds; and he was able to drive independently. In fact, although he was assigned a PPI rating of 30%, none of the doctors who examined the injured employee stated that he was unable to work. Instead, one of the doctors who examined him concluded that he can return to gainful employment.

Website design By BotEap.comThe injured worker also argued that his VE’s report should not have been dismissed because the inaccurate history given to the VE and the VE’s failure to review all pertinent medical evidence was not material to his VE’s conclusions. However, the Court stated that the injured employee’s position would require a reweigh of the evidence, which he was unable to do.

Website design By BotEap.comThe Court of Appeals concluded that the injured worker had not shown that it would be futile to seek work in light of his disability. In doing so, he concluded that there was sufficient evidence to support the workers’ compensation judge’s conclusions and that the conclusions were sufficient to support the decision.

Website design By BotEap.comTakeaway: This example should serve as a reminder to workers’ compensation attorneys regarding the burden of proof on an injured worker in a PTD claim.

Website design By BotEap.comSpecifically, this case shows the importance of having a valid functional capacity assessment recognized by the treating physician and having a vocational expert provide an accurate report based on the restrictions identified in the FCE and the opinion of the corresponding physician. Additionally, the vocational expert must review all relevant medical records to complete a report. Until then, the burden of proof does not shift to the employer to present evidence that reasonable employment is regularly and continuously available.