A recent workers’ compensation settlement made local news. An Athens city employee fell when a walkway came loose. He suffered significant injuries — requiring surgeries on both knees. He then returned to work at the same or higher pay. While off work receiving medical care, the injured worker received $3,126 in temporary total disability benefits. After returning to work and reaching maximum improvement, he settled for an additional $3,953 in permanent partial disability benefits. That’s a total of $7,079 for an injury which resulted in multiple surgeries.
That does not sound like much. And, it isn’t. Workers’ compensation benefits in Alabama are calculated by formulas. A key factor in deciding what formula applies is — whether or not the injured employee returns to work at the same or greater wage. Where the injured worker does return to work at the same or greater wage, “the worker’s permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability.” Alabama Code Section 25-5-57.
What does the statutory language mean? Let’s consider an employee who suffered a bad back injury at work. The employee had spinal surgery. Afterwards, the surgeon placed permanent restrictions on the injured worker preventing significant lifting and many other activities. If the worker is unable to return to his past employment (or similar work), the court can consider evidence of vocational disability — how the injury affects his ability to find gainful work. An employee with significant restrictions may be significantly or totally disabled from work. A severely injured employee could be 100% vocationally disabled. Yet, based on the AMA Guidelines used by doctors, this same injured worker may have only a 5% to 15% impairment rating for his back surgery. So, the difference between considering real vocational disability versus some type of impairment rating can make a huge difference in compensation.
I interview injured workers weekly. Almost all want to return to work. They desire deeply to work. When the employer is willing to take them back despite significant restrictions, it’s a great thing.
The right to Re-Petition provides an essential protection for workers. Sometimes, an injured employee initially returns to work but is unable to continue long-term. Sometimes, employers create temporary positions to keep the employee at work just long enough to settle the case for the lower impairment rating and to avoid paying true disability benefits. When an employer initially accommodates an injury and allows the employee to return to work, it raises these two significant questions:
- Is the employee physically able to maintain the employment over time?
- Is the job accommodation legitimate or not?
If the injured worker did not have the right to Re-Petition for vocational benefits, it would be a huge injustice. The right to Re-Petition is not limitless. But, it does allow some time to see if the worker can maintain the job. This is a huge benefit to the many injured workers who would much rather try to work than collect benefits.
Yes, some companies really do create temporary, fake positions to avoid paying benefits. Early in my career, I represented a hotel housekeeping employee who suffered a severe back injury. She had major restrictions. After finishing her medical care, she tried for over a year to find employment within her restrictions. She was disabled. Yet, magically, a couple weeks before trial the insurance company “found” her a job at another hotel. It sounded too good to be true because it was too good to be true. And, on cross-examination at trial the hotel manager admitted the insurance company was temporarily paying the employee’s salary only until the case was finished. Then, she would be let go.
Workers’ compensation benefits often treat injured workers unfairly. In many posts on this blog and my law firm blog, I have argued our law does not protect worker safety nor does it justly compensate injured workers. A central purpose of our workers’ compensation law is to help injured workers return to gainful employment. In that regard, it is necessary for the law to encourage both workers and companies by providing this protective right to re-petition for vocational benefits if the worker tries to work but cannot do so.