It’s complicated

If you have a Longshore claim with an unscheduled injury, your permanent disability is based on your loss of wage earning capacity. If you have a scheduled injury, your permanent disability is based on a number of weeks of compensation for that particular type of injury.

What the heck does that mean?

Well, I can provide a fairly simple explanation but in reality, it’s complicated.

First, what is the difference between a scheduled an unscheduled injury? For the most part, any injury that is not to an extremity is considered an unscheduled disability. Anything related to the spine, like a back or neck injury is unscheduled. Shoulder injuries are unscheduled. Hip injuries have been argued both ways, but I generally consider them unscheduled. Head injuries and mental health conditions like PTSD are considered unscheduled. Arms, hands, legs, feet, hearing, and vision are all scheduled injuries.

When it comes to compensation for permanent disability, or PPD, what does it mean that the injury is “unscheduled” versus “scheduled”? Scheduled injuries have a schedule of benefits outlined in the Longshore statute which are paid for permanent impairment. For example, loss of an arm is paid at 312 weeks of compensation, loss of the big toe is compensated at 38 weeks of compensation. If the injury results in the partial loss of use, then permanent impairment is compensated as a percentage. That’s why you hear things like a torn meniscus in the knee is a 2% impairment, compensation for permanent disability is paid for 2% of 288 weeks, or 5.76 weeks of compensation. So long as you can perform some type of work, any kind at all, a scheduled impairment is paid based on the schedule, without consideration of your individual circumstances. The concert pianist who losses a finger is compensated the same as the truck driver who loses a finger. That may sound unfair, but the idea is to reduce the uncertainty and litigation surrounding permanent impairments. In reality, we still have litigation and uncertainty, it is just focused on the impairment rating itself, not the established value for the loss of the scheduled member.  Having strong and credible medical support is crucial to receiving fair and just compensation for your injury.

Establishing permanent impairment for an unscheduled injury is like the wild west. Compensation for your permanent impairment when you have something like a back injury or PTSD, is based on the effect of the injury on your earning capacity. For example, you could make $40 an hour prior to the injury, but because you are now limited to lighter work, you can only make $10 per hour. Your permanent impairment is 66 2/3% of the difference between those numbers.

Comparing average weekly wage at the time of injury to post-injury earning capacity is easy as pie if you have actually returned to some type of employment after recovering from your injury. More often than not, the injured worker has not returned to work when this assessment is being made, so we are all guessing about current earning abilities. There may be competing Functional Capacity Evaluations with vastly different estimates of abilities and limitations. Transferable skills will be outlined and debated and debunked. There will be Job Analyses approved by some physicians and disapproved by others. There will be Labor Market Surveys, some accurate some bogus.

Like I said, it’s complicated. The value of your permanent impairment, and in turn the value of your claim, will most definitely rise and fall with the strength of your position on all of these factors. Your employer and its insurance carrier are going to be aggressive in developing their positions, and they will have the help of really experienced defense counsel. That doesn’t mean your sunk. It does mean you need to get your ducks lined up. As your medical condition stabilizes and you start thinking about what’s next, get some help. Talk to an attorney so you understand what’s coming, and can put your best claim forward.

 

Future Medical Care- Longshore

If you have a Longshore* claim, and have not settled future medical care with an 8(i) agreement – then you have lifetime medical coverage for conditions related to your injury. That sounds great – but I like to tell my clients this does not mean treatment is  automatically authorized, it  means you have the right to fight about it.

The responsible carrier is always going to look for an argument that treatment is related to some new injury or workplace exposure. Such a new injury or worsening related to work activities can serve to shift liability to a more recent employer. That is not necessarily a bad thing – If your condition has worsened or been aggravated by a new injury or work conditions, it may well support a new claim. This may actually benefit the worker if wages have increased over time.

Whether to seek medical care under an existing or older Longshore claim versus filing a new claim will depend in large part on individual circumstances and the opinions of your treating medical provider. Either way, sorting out your best arguments based on your specific circumstance is something a qualified longshore attorney can help you with.

  • This includes non-appropriated fund and DBA claims, which are covered through extensions to the Longshore and Harbor Workers C0mpensation Act.

This post is a reminder that it is OK to pick up the phone and call me.  I know that sounds a bit odd. But, I can tell from the stats on this blog that traffic is up since the first of the year. I get it, you have questions. You’re an injured worker; it’s the first of the year; you want to get moving- take charge of your claim. Nope – take charge of your life again. So, you’re noodling around on ‘the line’ to see if you can get your questions answered.

You can. Just Call.

I had a couple in here a few days ago. Spent an hour or so answering their questions. She didn’t need an attorney, but she felt more at peace from having talked to one. They stopped at our front counter on their way out to pay their bill. Nope. That’s not how it works. Consultations are no charge. If you need an attorney, then we can talk about how fees are paid (hint: it’s a percentage of benefits obtained on your claim) But I am always happy to answer questions, walk you through where you are in the process and explain what to expect.

Workers Compensation claims are weird animals in a weird legal/administrative world. Spend some time talking to someone who understands the lingo and the terrain.

Longshore Notice of Calendar Call

When a Longshore, DBA, or non-appropriated fund claim is set for Hearing the Judge sends out a Notice of Calendar Call. This notice not only provides the date of the Calendar Call, it includes a long list of actions and due dates the parties must attend to. All these actions and deadlines get added to my calendar, with tickle dates. It can look like a lot to do, and, well, it is!
I can also look at this notice and see what other claims are set for Hearing the same week, and which attorneys represent the various parties – mildly interesting stuff.
What is somewhat terrifying is to see a Claimant’s name listed, with no attorney representation noted. I never know whether this unrepresented Claimant has a legitimate case to make, or whether it’s a bad case, for whatever reason, and no attorney is willing to take it on. It troubles me to think some Claimant may have a decent argument to make, but may be going it alone, pro se, representing themselves.
I know there are all lot of smart people out there who aren’t attorneys. Or, people who don’t trust attorneys, or who had a bad experience with an attorney. But this system is fraught with deadlines and pitfalls and rules. While an Administrative Law Judge will be nice, and will absolutely let a pro se Claimant put on a case, the Judge cannot help you. You have the burden of putting on a prima facia case, the burden of presenting expert medical and/or vocational testimony, not to mention the organization and presentation of documentary evidence. This is your one shot to make a record, present evidence, and argue the relevant law. There is not another opportunity to make your case. You cannot take a run at doing it yourself, and then ask for a do over if it goes poorly.
If a Hearing has been requested, by either party, you are going to wait several months before you receive a Notice of Calendar Call. Take this time to consult with an attorney. The earlier an attorney gets involved, the better a case can be documented and presented. Maybe there is no good arguments to make – if that’s the case a good attorney will tell you the cons outweigh the pros. But you are not going to know if you don’t ask. Don’t end up on a Notice of Calendar Call unrepresented – there is just too much at stake.