May 2007 SBH Quarterly Newsletter
PDF FormatManaging PTD Awards
By Norman Cole
If you are not careful, changes in Oregon law applicable to claim closures on and after January 1, 2006 could result in permanent total disability (PTD) benefits being awarded to workers capable of working in minimum wage jobs.
PTD is "the loss, including preexisting disability, of use or function of any portion of the body which permanently incapacitates the worker at a gainful and suitable occupation." Employment is not gainful unless, in most claims, it provides the worker with the lesser of 66.67% of the worker’s average weekly wages from all employment in the fifty-two weeks prior to the injury or the most recent federal poverty guidelines for a family of three–now established as $330.19 per week, or $8.25 per hour for a 40 hour per week job. In other words, if a worker’s average weekly wage is at least $495.29 ($12.38 per hour for a 40 hour week), the worker must be able to earn at least $330.19 per week to have gainful employment. Minimum wage in Oregon is currently $7.80 per hour (or $312.00 per week)–below the gainful employment threshold.
The gainful employment threshold is just one part of the PTD equation. When evaluating PTD, preexisting disabilities–as they existed at the time of injury–must be considered. However, post-injury conditions that have not been accepted must be disregarded. Although a worker may in fact be PTD, that status may not be due to the injury in combination with preexisting disabilities.
PTD awards usually can be avoided if vocational consultants document a worker’s ability to earn income in excess of the gainful employment threshold and base the evaluation on the correct legal standards. Attorneys at SBH can answer any questions you have regarding PTD evaluations and help prevent workers from receiving PTD awards.
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