Myths- Permanently and Totally Disabled (PTD) Claimants
By: Andres Gomez
Myth 1: The doctor decides when someone is PTD.
There is a prevailing belief that once the claimant’s treating physician determines the claimant to be PTD, they are entitled to PTD benefits. While a physician can certainly provide an opinion of disability for purposes of receiving benefits under LSA-R.S. 23:1221, only the court can order an employer or other workers’ compensation payor to pay a claimant PTD benefits. Put another way, PTD benefits only become payable once the court has determined the claimant is PTD and entitled to PTD benefits.
Setting aside the issue of compensability, a claimant who is taken out of work by his physician is entitled to Temporary Total Disability (TTD) benefits. If the treating physicians goes so far as to say that it is impossible for the claimant to return to work in any capacity, they are still entitled to TTD benefits. Even if the SMO and IME physicians agree with the treating physician that the claimant will never work again, the claimant is still only entitled to TTD benefits. PTD benefits do not become due until a court has ruled that the claimant is entitled to PTD benefits. Ultimately, in making this determination, the court will weigh the medical evidence and issue a judgment. It is that, and only that, which triggers entitlement to PTD benefits.
Myth 2: PTD lasts for the entirety of the claimant’s life.
PTD benefits, as the name suggests, is payable upon a finding by the court that the claimant is permanently and totally disabled and, therefore, unable to work. This, naturally, relies on information available at the time such a judgment is entered. Does this mean that the claimant will be due PTD benefits forever? Like you’ll often hear from attorneys, it depends. For example, what happens ff after a court has determined a claimant is entitled to PTD benefits, but he decides to start painting and ultimately develops this skill such that his paintings become sought after and he embarks on the life of a paid artist? Is he still entitled to PTD?
The statute (LSA-R.S. 23:1221(2)(b)) is clear that “For purposes of Subparagraph (2)(a) of this Paragraph, compensation for permanent total disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.” This means that if the claimant eventually secures employment, regardless if it is not in the same field and industry, he may no longer collect PTD benefits.
As a result, It is important to keep tabs on claimants who are being paid PTD benefits to ensure that their circumstances have not changed through any advances in medicine or earning capacity.
Myth 3: I can convert benefits away from PTD upon finding the claimant is working.
As noted above, PTD benefits are only payable upon a finding of PTD by the court. This, naturally, results from a judgment indicating the claimant to PTD benefits. If, subsequent to the issuance of the judgment, the claimant is found to be earning income, you cannot immediately discontinue the PTD benefits. Because the court has ruled the claimant is entitled to PTD benefits, only the court can change that. Accordingly, a Motion to Modify Judgment must be filed to allow the change to happen without potentially incurring penalties and attorney fees.
Myth 4: Amount of PTD benefits are different than TTD benefits.
Although the total amount of benefits owed under a PTD judgment may be more than the potential exposure under TTD given the permanently nature of PTD, the weekly benefits owed are no different. The same AWW and corresponding workers’ compensation rate applies.