If your injury occurred on or before June 23, 1996, there is no artificial time limit to how long your total disability wage loss benefits can last. The passage of a certain period of time or the obtainment of a certain age does not cause total disability to cease. However, the amount of benefits can be reduced and the duration of benefits can be shortened or stopped. Below is the description of how benefits can be modified or stopped for injuries occurring on or after June 24, 1996. All of the below discussions apply to injuries occurring on or before June 23, 1996, except with regard to the use of Impairment Rating Evaluations and Labor Market Surveys to shorten and reduce benefits. Those carrier weapons can only be used for injuries occurring on or after June 24, 1996, and cannot be used with regard to earlier injuries.
Lump Sum or Other Settlement
If a lump sum settlement is negotiated and approved by a workers' compensation Judge, after testimony and submission of the appropriate paper work, the settlement can provide for single lump sum final payment or for periodic guaranteed payments in an annuity like structure. Medical benefits related to the work injury can remain the responsibility of the carrier with any settlement.
Death ceases wage loss benefits. It may not, in certain circumstaces, cease specific loss benefits.
Termination upon full recovery
Your wage loss and benefits may be terminated if the carrier obtains a competent, unequivocal medical opinion of full (100%) recovery from any physician and a workers' compensation Judge believes that physician over the opinion of your doctor. A temination of benefits can be based upon an I.M.E.'s opinion after a cursory exam and after being paid hundreds of thousands of dollars by the carrier. An experienced workers' compensation attorney will skillfully cross-examine the I.M.E. doctor and their opinion.
Return to work earning the same or more
If you return to work anywhere earning the same as your average weekly wage at the time of injury, your wage loss benefits would be suspended. If your earning loss reoccurs due to lay off or decreased earning power, you may have the right to have those benefits reinstated.
Return to work earning less
If you return to work anywhere at wages less than your time of injury average weekly wage, your benefits would be reduced to partial disability benefits, and you are limited to five hundred (500) weeks of partial disability benefits. Partial disabilty is calcualted as two-thirds of the difference between your time of injury average weekly wage and your current gross weekly earnings.
Failure to follow through with job referrals in good faith
The carrier can also attempt to modify benefits based upon referring suitable, open or available jobs to you. If you fail to follow through in good faith on referrals, the carrier can petition to have your benefits reduced for bad faith and can request the Judge reduce your benefits to partial as if you had obtained the job they referred and limit you to 500 weeks of compensation.
Injuries after June 23, 1996 and the I.R.E.
For most wage loss injuries suffered on of after June 24, 1996, your wage loss benefits are limited to 11.6 years. After two years of receiving total disability benefits, the employer, within sixty (60) days of the anniversary date of 104 weeks of total disability compensation, will request you undergo an impairment rating evaluation (I.R.E.). If this evaluation results in an impairment rating on the American Medical Association's Guidelines of less than fifty percent (50%), you will automatically be placed on partial disability benefits. Although your compensation rate remains the same, the five hundred (500) weeks of partial disability entitlement begins. Five hundred weeks plus two years of total equals 11.6 years of compensation.
Injuries after June 23, 2006 and the Labor Market Survey
The carrier can also seek to have your benefits reduced based upon an allegation that you have an earning capacity as set forth in a Labor Market Survey prepared by a vocational "expert" hired by the carrier. This does not involve referring you to any positions. It is commonplace to find out about the jobs in the Labor Market Survey at the first hearing on the carrier's petition to reduce your benefits to two thirds (2/3) the difference between your time of injury average weekly wage and the alleged earning capacity. There is no allegation that you failed to follow through in good faith. There is merely an allegation that you, based upon your age, education, and residual productive skill have the capacity to earn an amount of money as concluded to you by the carrier's vocational "expert." When a carrier hires a vocational consultant to interview you, that interview should take place at your attorney's office.
Failure to offer work can prevent reduction to partial
Prior to filing a Petition to Modify based upon a Labor Market Survey, the carrier must issue a Notice of Ability to Return to Work which states who the medical professional was that released you for work and the extent of the release, i.e., what work restrictions you have. Once the Notice of Ability to Return to Work has been issued, your time injury employer must offer any jobs it has available they are seeking to fill that are within your work restrictions and vocational abilities. They are not required to create a job. If your employer intends to modify or suspend your compensation benefits based upon a Labor Market Survey, it should show that, between the date that the Notice of Ability to Return to Work was issued and the date they filed the Petition to Modify, it had no job openings you could have performed with the time injury employer. If they had appropriate job opennings during that time frame which it did not offer to you, the Petition should be denid.
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