Wednesday, July 25, 2018

Permanent Disability: Workers’ Compensation v. Social Security

Under Workers’ Compensation (herein referred to as “WC”) the term permanent disability has a very broad meaning. Labor Code section 4660(a) explains that when determining how disabled a person is, WC shall take into account “the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of the injury, consideration being given to an employee’s diminished future earning capacity.”

If an employee injures his or her back at work, taken into account is the above as well as any previous injuries, preexisting conditions, and any other contributing factors to the injury. Once an applicant is declared permanent and stationary, he or she will be seen by a PQME/AME doctor. The PQME/AME doctor will determine the applicant’s impairment pursuant to the Journal of American Medical Association guidelines and adjusted based on the applicant’s age and occupation. Once all the factors are taken into consideration, the applicant may be entitled to an award of permanent disability for the diminished capacity of the injury. A “permanent disability” is more about the loss from the workplace injury in which compensation can be paid based on the rating of the disability. Depending upon the level of impairment and work restrictions it will determine whether he or she can return to their usual customary occupation.

Unlike Workers’ Compensation, Social Security is very strict in defining disabilities, which are called “listings.” However, in order to qualify for Social Security (herein referred to as “SS”), the requirements are more than just being disabled. There are five steps to a disability case. Step one has financial and past-earned income requirements based on the type of program the person is applying for. (POMS SI 00810.001)

Step two looks at the severity of the injury. SS defines a severe impairment as “whether medical evidence establishes a physical or mental impairment or combination of impairments of sufficient severity as to be the basis of a finding of inability to engage in any substantial gainful activity (SGA). When medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimum effect on an individual's ability to work, such impairment(s) will be found “not severe,” and a determination of “not disabled” will be made…” (POMS DI 24505.001)

Step three evaluates the condition to see if it meets or equals the listing of impairments. Under the listing for Spine (POMS 1.04 Disorders of the spine), there are three different categories in which a person with a spine impairment can qualify, which includes the requirement that the impairment has a “compromise of a nerve root (including the cauda equina) or the spinal cord.” These impairments need to be well documented with medical imaging. In addition, under the third spinal category are requirements for “manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.” POMS 1.00B2b has additional requirements and examples such as the “inability to climb a few steps at a reasonable pace with the use of a single hand rail.” Even if a person meets or equals the requirements of the listing and any additional sub parts, the person also needs to meet the second requirement of the severity of the impairments.

If a person does not meet the step three requirements, then under step four SS looks to see if the person can return to their past relevant work of the last 15 years. (POMS DI 25005.015) If they cannot perform their past relevant work, then SS continues to step five to determine if the person can perform any job in the national economy with their limitations. (POMS DI 25005.005) A vocational expert will make an assessment of the person’s limitations and determine if a person with those impairments can perform any jobs on the national economy. These steps four and five are important because even if a person is found severely impaired under step two but does not meet or equal a listing, the person will have to also show that these impairments prevent them from working any job, not just their previous job.

As demonstrated, a person who has a permanent disability as defined by WC may not meet the five-step process under SS. The injuries to the back may hinder someone in the workplace but may not be severe enough to prevent the person from doing any job in the national economy under the SS standards.

A permanent disability under WC, like a back injury, may allow an applicant to receive compensation for the diminished capacity from the injury. Unlike Workers’ Compensation, Social Security does not pay a person for a particular injury, but, rather, pays someone for having severe impairments that prevent them from working at all, whether the impairments are work related or not.