Ok. So, you have an injury and you are left with permanent restrictions. What now? Well, it depends on where you are and what parts you injured. Let me explain. In Kansas, there is a benefit called work disability, which, in my opinion, serves two purposes. First, it gives incentive to employers to bring back injured workers that have restrictions and try to accommodate them. Second, if they don't bring you back, it gives you a small cushion to allow you to figure out what you are going to do next with your life.
Here is how it works. You remember from below how to calculate functional impairment, right? First of all, you can't have work disability if you have injured anything but an unscheduled body part, essentially your head, neck, or back, or since the law changed on May 15,2011, bilateral opposing limbs. So that guy in the post below would not get work disability for his shoulder if he lost his job. However, if you have an unscheduled injury and you either lose your job because of your restrictions or your wage is reduced to 90% or less of your average weekly wage, you could be eligible for work disability. At that point, we don't care about your percentage of functional impairment (well, we do, but…). Instead, we have a whole different set of information that we use. Eyes glazing over yet?
First, we have your essential job tasks analyzed. We have a vocational expert go through all of your jobs over the past 15 years, or 5 years if your accident happened after May 15, 2011, and determine all of the tasks necessary to do your job or jobs. Then we have a doctor look at those tasks and determine the percentage of them you can no longer perform as a result of your restrictions. That is your task loss percentage.
We then figure out your post-injury wage and compare it to your pre-injury wage and calculate your wage loss percentage. Then we average those percentages together and that's your work disability. Here's an example: You have a back injury that has resulted in excess of 7.5% functional impairment (which, by the way, is the new minimum functional impairment to be eligible for work disability) and no ttd (your company benevolently let you work light duty during your treatment). Assuming no restrictions, you went back to work, and your compensation rate was the max of $545, your functional impairment settlement would look like this: 415 X 8% = 33.2 weeks X $545 = $18,094.00 (I always round up no matter what!)
But wait! Same injury, same treatment, same light duty except the doctor makes your restrictions permanent and the company fires you because they can't accommodate permanent restrictions. Let's say you found a job as a greeter at Wal-Mart and it pays half of what your were making before but your restrictions have knocked you out of 65% of your pre-injury tasks. Now the calculation looks like this: Task Loss = 65%. Wage Loss = 50%. Average = 57.5% Work Disability. 415 X 57.5% = 238.635 weeks X $545 = $130,050.63 (Notice no where is the 8% functional impairment noted–Like I said, nobody cares!).
Quite a difference, isn't it? Now depending on when your accident was, in this scenario, it could be subject the the $100,000 statutory cap which was increased to $130,000 on May 15, 2011. Also, there are about a zillion other factors to consider to determine whether you are eligible for work disability but, the bottom line is this: If you have a back injury with 8% impairment, which calculation do you think the insurance company is going to use to make your settlement offer? I'll answer that for you. In 14 years of practice, I have NEVER seen a work disability offered before counsel was hired. NEVER.
Whew! That's a lot to digest. It's complicated even for seasoned lawyers. Think of all the poor people who got that 8% offer and accepted it, not knowing that work disability was even an option. Knowledge is power and now you have it.
By the way, remember I told you in the last post that Missouri's work disability would take less time to explain? That's because they don't have it. No matter what happens to your job, your wages, or your task performing abilities as a result of your work injury, you get functional impairment. Unless you are permanently and totally disabled.
But that's a whole different can of tuna…
For more information, please contact a Kansas City Workers' Compensation attorney at Haight & Stang.