What Does PPD Mean in a Legal Context?
Understanding PPD: Its Legal Definition and Implications
Now that we understand the general medical definition of PPD (Permanent Partial Disability), let’s examine how it’s defined legally and what this means for Texas workers’ compensation.
Texas Labor Code Section 408.142 defines PPD as an incomplete impairment due to a work-related injury that has stabilized. Specifically, the law states that permanent impairment is "the percentage of permanent loss of use of a specific part of the body or body system as determined by the guidelines adopted . "
It is important for workers’ compensation professionals to be aware PPD applies only to a worker’s scheduled losses of function such as the back, knee, upper extremities, etc. If the injury occurs to an unscheduled portion of the spine, then PPD does not apply and the impairment as determined by the AMA Guides must be considered.
So when might we see PPD referenced? For example:
It is important for injured workers, their doctors and employers to understand how PPD applies in these situations so that they can make well-informed decisions when confronted with the prospect of impairment.
PPD and Personal Injury Cases
When a Judge or Lawyer is asked to determine the extent of a Plaintiff’s permanent partial disability (PPD), there are two different remedies available – either for wage loss (i.e. earnings of the Plaintiff post injury compared to their earnings before injury) or for the permanence or severity of their impairment. So what the Court does is look at objective medical evidence and take a secondary look at PPD.
In Illinois, PPD is a term that encompasses compensable disability for a permanent injury to a body part in a workers’ compensation claim and is often used in personal injury litigation to denote the degree of permanent damage caused by a defendant’s negligent actions. When used in a legal context, the definition of PPD means a worker’s disability that is permanent and partial in relation to the body.
PPD is generally measured in increments of 1 percent to 100 percent, with an estimate of total disability usually equal to 100 percent of total disability. A disability of 10 percent PPD would mean in theory, a 10 percent disability of the person’s body if they have 100 percent disability. Let’s say a woman with a wrist injury suffers 15 percent PPD of the wrist, 15 percent PPD at the elbow, and 10 percent of the shoulder. Her combined PPD would not equal 40 percent but would be more like 70 percent, because the wrist and elbow are parts of the same arm and the body does not work part by part, but as a whole unit. That means even though the sum is greater than the factors, it’s possible that the loss of function is less than for a single body part.
In law, courts and lawyers assess PPD with rating systems, which aid in determining the right amount of compensation for injury victims based on various factors. For instance, the process of assigning PPD ratings requires physical examinations by a physician who assesses the level of impairment caused by the injury.
Physicians use rating scales from 0 to 4 under the AMA Guides to Permanent Impairment seventh edition, developed by The American Medical Association, which define 0 to 4 with the following descriptions: 0 being normal range of motion, 3 being loss of 50 percent or more of range of motion and 4 meaning that the loss of range of motion is permanent and stationary. There is an 85 percent rule in terms of determining whether the injured party is entitled to collection of future medical payments.
However, it is up to the attorneys representing the parties and the court in these matters to determine what type of compensation will be given to the victim of the injury.
PPD in Workers’ Compensation Claims
The ratings determine your impairment’s impact on your body or brain. Usually, the injured party will undergo what is known as an AMA Guides examination. This is a process set forth in the federal code of regulations intended to define the injury itself and how it will limit the person in the future. The AMA Guides rating takes into account factors such as the injured party’s age, education level, residency, emotional stability, and any prior work experience.
The rating is then used to determine the amount that the injury would be compensated if it were to be covered under workers’ compensation insurance. For example, let’s say a wrist injury would normally be covered under workers’ compensation at a rating of four points. The injured party will likely receive 4 percent of their average weekly wage, which is where the average weekly wage amount comes in.
Usually, more points equal a higher payment in workers’ compensation. However, if multiple injuries have occurred, a treatise published in the Journal of Occupational and Environmental Medicine states that the combined PPD rating may be reduced up to 17 percent. This reduction is based on the principle that a person having a 50 percent impairment of his overall ability has a greater impairment than the sum of his individual ratings.
A PPD rating can be used to help injured workers settle their case with their employer more quickly than if the case was mediated with the Medical Panel. If the injured worker does want to take their case to Mediation, having a PPD rating from a doctor can be a huge advantage in helping to expedite the mediation process.
PPD and Temporary Disabilities, an Important Distinction
Before we can understand PPD, we need to differentiate it from another kind of disability commonly seen in work injury claims. This other disability is temporary and may not even leave you unable to work. Temporary Total Disability refers to a situation where a person is unable to work for a short period of time due to an injury. In Illinois, you must be 100% unable to work to get TTD. Once you return to work, your claim for Temporary Total Disability benefits ends, with some exceptions.
PPD in Illinois is something that a doctor will usually identify you as having much later in the case (sometimes years). It can be caused by any illness or injury and from a legal perspective is a pretty useful term because is talks about every single type of injury. It basically looks at how you feel and what your doctor thinks your injuries are worth if they’ll never get better.
PPD is different than being temporarily disabled in two key ways: 1) You don’t need to be off work for weeks/months/etc. to be entitled to it. 2) There is no cap on it like there is for TTD.
In other words, a claim for PPD in Illinois does not require you to be temporarily totally disabled to get a settlement. Also, you could never miss a day of work and still get a settlement for a permanent injury to your arm, leg, neck, back, spine, etc. You can even get a settlement for a scar or psychological damage.
With that said, not every injury means that you should get a settlement. Your injuries have to match the damage you’ve sustained, meaning that if you haven’t missed any time from your job, but your doctor writes a report saying you’ll need surgery or will have permanent restrictions, you likely have a viable claim for PPD.
When your doctor identifies you as having some type of PPD injury, they will also provide a recommended permanent impairment rating (how badly hurt you are in their opinion) based on a very convoluted set of rules that says what a bumped head, broken toe, torn rotator cuff, etc., causes as far as a permanent impairment. For example, a broken ankle is often a 9%, but if it’s now worse because you’re limping and it gets worse fast as in has arthritis, that’s another 25%. So the total would be 34% which equals a settlement of around $17,000. 34% of 450, however, is $151,500 which means a settlement of a little over $70,000.
The important thing is that your lawyer can give you a much better answer on settlement amounts once he or she hears from your doctor, than when you initial meet them and that knowledge and experience can really shape the advice that we give.
How PPD Benefits Are Calculated
Typically, the determination of permanent partial disability (PPD) benefits depends on the type of injury sustained, the location of the injury, and the jurisdiction’s applicable workers’ compensation regulations and guidelines. While the advice of a workers’ compensation attorney can be invaluable in maximizing the value of PPD compensation, here are some common recovery methodologies: Types of injuries Injuries to certain parts of the body are considered more severe and impactful. For example, a worker suffering an elbow injury that renders them unable to perform their previous job duties will generally be entitled to a larger sum of PPD compensation than another employee whose wrist injury does not significantly impair their work duties. Additionally, workers’ compensation acts sometimes specifically lay out a certain number of weeks an employee can be compensated for a specific injury. For instance, in Kansas, an employee is entitled to 415 weeks for each time a major joint is injured, an additional 50 weeks is a severe disfigurement is involved. Location of injury There are also "aggravation factors" for how the injury may affect the employee. These can include how much force the employee has to use at work, or how many repetitions they perform in their job duties . The more impact an injury has, the more compensation the worker may be entitled to receive. Jurisdiction-specific guidelines Some jurisdictions have guidelines that can be relatively straightforward to utilize. In Illinois, PPD benefits will be determined using the following formula: average weekly wage x industrial loss = PPD benefits to be paid. An industrial loss is the determined percentage of disability, and may be comparable to using a multiple for certain types of dismemberment. For example, an employee suffering the loss of one finger can generally expect 35 weeks of compensation. An employee who has lost two fingers can generally expect to receive 55 weeks of compensation. Other jurisdictions, like Michigan, have gone so far as to provide a mathematical framework for different categories of injury. For example, an injured individual could expect to receive compensation for paralyzed limbs using the following table: What can I do? The amount of PPD compensation an injured employee can expect to receive varies widely by jurisdiction and the type of injuries sustained. That is why it is important to seek the advice of a knowledgeable workers’ compensation attorney, who can help you determine your eligibility for PPD compensation and maximize its value.
Legal Disputes in PPD Cases
Common legal challenges surrounding PPD benefits include disputes about the extent of an injured worker’s disabilities, the appropriate PPD rating, or the final outcome of the claim. The first line of defense that insurers and self-insured employers frequently mount in these circumstances is to allege a lack of causal connection between the disability and the injury for which a PPD award is being claimed.
For example, an employer may maintain that the PPD rating assigned to the claimant by his physician is invalid due to improper methodology and that there is no causal relationship between the worker’s disability and the injury covered by the claim. In defending a claim, it would be up to the injured worker’s attorney to show that he has an entitlement to benefits and that there is in fact a causal relationship between his injury and the disability suffered. In the face of credible contrary medical evidence, the injured worker’s attorney can meet merely the lowest possible burden of proof. This burden is sufficient to entitle the injured worker to the payment of the minimum PPD award.
Sometimes, however, the injured worker’s PPD award is disputed by the employer because it contends that it has a right to permanent disability reduction under the Second Injury Fund. For such a reduction to occur, the employer must prove that the injured worker’s total permanent partial disability is greater than the degree of impairment initially rated, and, that prior to the most recent work-related injury, the worker had a permanent impairment as determined by a qualified physician. If this is established, the employer bears the burden of proving the degree of permanent impairment caused by the current work-related injury, and, finally, that the previous permanent impairment can be allocated proportionately to the degree of permanent impairment caused by the current work-related injury.
Recent Changes in PPD Laws
Although the law on PPD in Texas is well established, it is important to stay abreast of any new developments in the laws or trends in the courts and with the insurance companies which may affect the handling and evaluation of PPD claims. Here are some recent developments in the law of permanent partial impairment (PPD):
Most recently, on June 1, 2015, the Texas Supreme Court held in Bernard v. BYK-Chemie USA, 458 SW3d 580 (Tex. 2015) that a guilty plea to a felony drug possession carries with it a disability rating of at least 20% from the Texas Department of Insurance (TDI), even if the claimant does not allege a disability from their illegal drug use. Note that unless the illegal drug use would have caused a disability approximately equal to the impairment rating, the claimant will receive the impairment rating for the disability which was caused by the workplace injury.
On December 22, 2014, the Texas Supreme Court held in Texas Mutual Insurance Company v. Ruttiger, 381 SW 3d 467 (Tex. 2012) that canvassing a jury does not violate the Texas Health and Safety Code or Workers’ Compensation Act. This case will now be used by defense counsel in PPD trials to justify asking potential jurors if they are a member of a union or have insurance .
Effective September 1, 2015, House Bill 7 will provide that the employees of a political subdivision that is a member of a workers’ compensation group insurance pool and that are covered by the Act may receive impairment income benefits, supplemental income benefits, and lifetime income benefits pursuant to the same procedures and requirements as an employee of a governmental entity that is a nonsubscriber, as defined by Section 417.001. The Bill also amends Section 406.033 of the Labor Code to add that impairment income benefits, supplemental income benefits, and lifetime income benefits are not available to an employee of a political subdivision if the political subdivision participates in a workers’ compensation group insurance pool and the employee is covered under the political subdivision’s group insurance pool policy. This new legislation needs to be reviewed carefully by the insurance carriers to avoid the pitfalls which might otherwise lead to payment on a preauthorization of treatment or require insurers to pay for "non-O & O" impairment benefits under an Occasional Injury Clause or "claw back" impairment benefits which were paid on UTMB impairment rating.
The law on PPD is constantly evolving, so it is important to stay informed of any new developments or useful information which may benefit you if you have a PPD claim which has been disputed by the insurance carrier.