Treated, labelled partially disabled, WC says no more treat Delaware

[ElleMD]

If you are unable to work because you are healing and "disabled" on account of your injury, then you *might* be entitled to TTD.

If you are healed and the reason you are waiting for a vacancy is that your former job was filled while you were out, you are not off because of your medical condition, but because there simply isn't a vacancy at this time for you.

Unless you are medically unable to work you are not eligible for TTD. In other words, if there was a vacancy and you were medically cleared to perform it, then you would not be eligible for TTD. Only if you would not be medically able to fill this hypothetical vacancy anyway, would you get TTD.

[Ted and Natasha]

Since I am an active employee but can't do my regular occupation, it appears I should be covered under my companies Long-Term Disability Plan through Prudential. My attorney is checking into this.

One important question, does the attorney have any right to my LTD payment?

[ElleMD]

Why would your attorney have a right to your disability payment?

If you can not medically perform your job and you are essentially waiting for a light duty job to open up, then it *may* be covered by TTD. It can't hurt to ask. You can try to run it under the LTD plan but most have an exclusionary clause if the injury is the result of a a work accident.

[Ted and Natasha]

update

My attorney wanted a second opinion regarding MMI. So I saw another doctor yesterday and he said I am no where near MMI. According to him, the history of herniated discs has shown with rehabilitation it can take up to a year or more to reach MMI. Since my injury happened in May, and the other doctor ceased rehab in September and had an FCE done, the new doctor said I have a few more months of rehab before he can determine if I can do my job again. He said at this point I am temporarily partially disabled, but by no means is this permanent.

This seemed like good news. The doctor said he has seen this a few other times, where a doctor has an FCE done only a few months after a herniated disc, says MMI, and the injury is labelled permanent. The attorney and my new doctor said they will have to undo the 'permanency,' which should allow me to collect the worker's comp I am entitled to. He said they may have to take it to the industrial accident board if insurance fights, but they have not had a problem reversing this is the other cases he has seen.

I start rehab today.

[turbowray]

Good luck to you, I hope you get some financial help soon!

[Ted and Natasha]

New jon $30k/year less

So I finally got a new position which will accomodate my "permanent partial disability." However, the difference in pay is substantial...$30k/year less than the job I was doing pre-injury.

The lawyer says I will receive, according to DE WC Law, 2/3 of the difference in pay. He based the amount on gross regular/OT/ and commisions pay up to my injury date of April 27, 2006. He then multiplied that amount by 3 and said that's what you would have made this year if you weren't injured. If that's the case, it's ~$1666.66/month. Is it as cut and dry as that? God, I hope so. I am so broke right now. I haven't received any income since November. My new start date is Jan 15, 2007.

PS, the lawyer is also going to ask the them to pay 2/3 of the difference back to the date I stopped receiving pay...Nov10th, 2006.

[ElleMD]

If you are at MMI, then your lawyer is incorrect. If you are still healing/ in treatment, then he is mostly correct but there are a few caveats to keep in mind. It may be that you simply misunderstood what the lawyer says, or he may have just left out a few details so as not to confuse you so discuss this with them before taking my word for it.

If you take another job that pays less, then you are entitled to 2/3 of the difference between the old and new job, though the formula he is using is questionable. There also is a cap on what can be received. Straight from the regs:

§ 2325. Compensation during partial disability.

For injuries resulting in partial disability for work, except the particular cases mentioned in subsections (a)-(g) of § 2326 of this title, the compensation to be paid shall be 66 2/3 percent of the difference between the wages received by the injured employee before the injury and the earning power of the employee thereafter; but such compensation shall not be more than 66 2/3% of the average weekly wage per week as announced by the Secretary of Labor for the last calendar year for which a determination of the average weekly wage has been made. This compensation shall be paid during the period of such partial disability for work, not, however, beyond 300 weeks. In construing the words "earning power of the employee thereafter" as those words appear in this section, the Board shall take into consideration the value of gratuities, board, lodging and similar advantages received by the employee in subsequent employment.


The time you were not working at all should be paid at the comp rate, or 2/3 of your average weekly wage, not the difference between the rate at your new job and the old one.

§ 2324. Compensation for total disability.

For injuries resulting in total disability occurring after July 1, 1975, the compensation to be paid during the continuance of total disability shall be 66 2/3% of the wages of the injured employee, as defined by this chapter, but the compensation shall not be more than 66 2/3% of the average weekly wage per week as announced by the Secretary of the Department of Labor for the last calendar year for which a determination of the average weekly wage has been made, nor less than 22 2/9 % of the average weekly wage per week. If at the time of the injury the employee receives wages of less than 22 2/9% of the average weekly wage per week, then the employee shall receive the full amount of such wages per week, as compensation. Nothing in this section shall require the payment of compensation after disability ceases.

[Ted and Natasha]

I am at MMI and labelled permanently partially disabled. I was trying to get that reversed, but my current doctor and lawyer said my company is not going to reinstate me to do my old job no matter what the outcome, so they figured an FCE is worthless and it's in my best interest to maintain the PPD status, so as to get the pay differential.

I assume the "compensation shall not be more than 66 2/3% of the average weekly wage per week as announced by the Secretary of Labor for the last calendar year for which a determination of the average weekly wage has been made" means not more than the $540/week max.?

I just want to make sure I get the most out of this I can. I've been more than willing to do anything to stay employed and worked during my injury instead of collecting a WC check. Now I have been without pay for a while and WC insurance has been a royal PITA. Saying I reached MMI, PPD, haven't paid me, told my company I can't do my job anymore and my company went along with it. I just want what is due and just.

My old job paid ~$86,000/year. My new job pays $55k/year. I can longer be a field service engineer b/c Travelers and my old doctor labelled me PPD at MMI, and put this 50lb lifting restriction on me. I can't do field service for any company, so I am forced to enter a new field at a lower pay.

I'm still not clear on what you are saying with regards to "If you are at MMI, then your lawyer is incorrect. If you are still healing/ in treatment, then he is mostly correct but there are a few caveats to keep in mind." I want to make sure my attorney is doing the right thing for me. If he's incorrect please explain in layman's terms.

[ElleMD]

Sorry for the delay in getting back to you. In layman's terms, you are only entitled to the difference between your old and new salaries as long as you are still healing. It is called Temporary Partial Disability, meaning for a short period of time until you heal and stabilize, then you get Permanent Partial Disability, though that is not a payment for the rest of your life. PPD is a fixed amount for a fixed period of time, though it may be paid lump sum in some cases. If you have reached MMI, your condition is no longer temporary and therefore you would not be entitled to temporary disability benefits.

PPD *should* take into account your loss in earning capacity though to be honest, if the only thing you can not do is lift more than 50 lbs. that isn't going to be much of a factor. The reason being that the ability to lift more than 50 lbs does not preclude you from holding a high paying job (lots of high paying jobs out there do not require lifting 50+ lbs). That you may have lost this one particular high paying job isn't indicative of your total prospects for future employment. It stinks, but that is the way WC works.

If you file for PPD, the award should be retroed to when you reached MMI. Talk to your lawyer about this. If you are at MMI, I'd be filing for PPD fairly soon.

[Ted and Natasha]

I talked with my attorney and he said I am PPD and have 2 legal claims coming to me according to Delaware Worker's Comp Law:

-lump sum payment. Not enough to retire, but something depending how they "rate" my injury. He said that is where he gets his fee from. But, since worker's comp has not responded to any of his certified letters, he has setup up a hearing with the industrial acciden board (Feb.). In Delaware this means that if it goes before the board, he will be able to request payment from the insurance company for his fees. He said not to get my hopes up with them paying him, as he has dealt with Travelers a lot and he said they want to avoid paying attorney fees. So most likely they will settle prior to this.

-300 weeks of pay differential. This is per DE WC Law. They will determine a specific amount. The 300 weeks is during PPD. He said it is to give you sufficient time to get back up to your preinjury salary. I also confirmed this with the DE WC Office. She couldn't talk specifics as I have an attorney, but she reiterated that DE law says if you take a lower paying job after MMI and PPD, they have to pay you the difference for up to a specific amount of time. She said this is the most substantial part of a worker's comp claim when it comes to being PPD.

I am leary of attorneys, but I will give mine credit. He was voted one of DE "Top Lawyers" by Delaware Today Magazine and was Chairman of the DE Bar's WC Section. He has Been in practice since 1979. He told me not to worry, as they will have to pay me "an amount of money" for 300 weeks.

[ElleMD]

OK, I misunderstood your posts, I thought you had already received your PPD award in which case the salary differential would not be available to you. It can be part of the PPD award though. Should have re-read all the old posts. The attorney fees are paid out of whatever award or settlement you do receive. The insurance company doesnt get a choice in the matter, so don't worry about being stuck with the bills.

Some carriers are more likely than others to settle versus let the Commission decide the PPD award. Neither way is right or wrong. The fact that they have not accepted your attorney's offers to settle up front really mean little. I won't bore you with the politics of how this process typically goes but I will say this is not a typical at all.