By: Andres Gomez
Does Permanently and Totally Disabled mean Permanently and Totally Disabled?
As you know, Permanent and Totally Disabled (“PTD”) is not something that the claimant’s treating physician decides. While the physicians can render their opinion on whether the claimant is PTD, it is ultimately up to the court to determine that. While the name will imply it, is the disability really total and permanent?
While there are some instances where the injuries sustained by the claimant could be such that there is little to no chance of significant improvement once they are at MMI, such as a spinal injury causing quadriplegia, there are others that may improve with time, such as certain TBI injuries.
A PTD determination (medical opinion or court order) is based on the claimant’s medical condition, relative to their ability to work, at the time. Usually, a PTD determination is used as a springboard to a resolution through a full and final settlement. However, there are instances wherein the claimant does not wish to settle and, instead, opts to continue to receive benefits, leaving this file on your desk to deal with seemingly without end. So what can you do?
- Second Medical Opinion (“SMO”) – Consider getting an SMO on the claimant periodically to determine if there has been any improvement. Cases of TBI are a prime example of cases where re-testing could reveal improvement in such a way that perhaps the claimant can return to work in some capacity. For example, impairment ratings are updated periodically and neuropsych testing scores may be considered PTD at one point could potentially, later on, be considered “low average” or enough for the claimant to no longer be considered such. Re-testing and re-evaluating are crucial in determining whether there has been improvement and the cost of such is minimal when compared to the relative cost of the case at PTD.
- Voc. Rehab – Remember that when addressing PTD, voc. rehab is a pre-requisite. Periodic in-depth voc. rehab is necessary to determine whether the claimant is capable of doing anything. The question is not “Can the claimant go back to their job?” but rather, “Is the claimant capable of doing any kind of work?” The voc. rehab findings, in conjunction with medical findings and surveillance, can serve as a way to turn around a case and position it for a favorable resolution.
- Surveillance – Consider placing the claimant on surveillance periodically is important. We have all heard stories and seen cases where the claimant is in terrible shape, medically, and they will never work again yet, conveniently, within a year of settling their claim full and final, they are back working in some capacity. This seemingly magical improvement is seen more often in cases after settlement, but it is not entirely uncommon to see this when claimants are still receiving benefits. The key with surveillance is having a strategy for it and those that read the email blast a few months ago on it or have attended one of our lunchtime sessions on it know how it can drastically improve results
If you have a PTD file still cluttering up your desk, remember that it may not be as total or as permanent as the name suggests.
