1. that you have been involved in an accident,
2. that the accident occurred while at work or in furtherance of your employment duties, and,
3. that you are under permanent restrictions,OR
4. that you have a permanent injury
Frequently, doctors’ opinions will vary and conflict with one another. Just because the company designated doctor believes that you have no permanent injury or restrictions, does NOT mean you are NOT entitled to any award for permanent disability benefits.
Once it has been determined by a Judge that you do, in fact, have a permanent injury or restrictions based on medical and lay (family, friends, co-workers, etc.) testimony, the Judge can then go on to award an injured worker what is known as permanent partial disability benefits. Tenn. Code Ann. Sec. 50-6-207 provides a ‘schedule’ for benefits payable for injuries to each body part and injuries to the body as a whole. If your injury is not an injury to a ‘scheduled member’, you could be entitled to a percentage of 400 weeks compensation, an injury to the body as a whole.
The extent of vocational disability is a question of fact for the trial court to determine from all of the evidence." See Corcoran, 746 S.W.2d at 458. In determining vocational disability, the judge has to consider whether the employee's earning capacity in the open labor market has been diminished due to the injury. Id. at 459. In making this determination, courts should consider "many pertinent factors, including job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to the anatomical disability testified to by medical experts." Clark v. National Union Fire Ins. Co., 774 S.W.2d 586, 588 (Tenn. 1989).
The fact that an injured employee returns to work after the injury is relevant in determining vocational disability, but it is not controlling and is only one of many factors to be considered. Clark,774 S.W.2d at 589. In fact, vocational disability exists despite an employee's return to employment, "if the employee's ability to earn wages in any form of employment that would have been available to him in an uninjured condition is diminished by an injury." Id.
The injured employee’s testimony about his physical condition and resulting disabilities must also be evaluated. Uptain Constr. Co. v. McClain, 526 S.W.2d 458, 459 (Tenn. 1975).A judge is required to consider both expert and lay testimony when deciding the extent of an employee's disability. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 677 (Tenn. 1983).This is not a simple or ‘wrote’ task for the judge. Every case of permanent disability is different. The same injury can affect different workers in a different way.
Workers with a greater medical disability might be entitled to more permanent disability benefits than those with a lesser medical disability rating. Older workers may not heal as quickly or recover from accidents as younger workers with the same injury. Persons with a higher level of education tend to have more job opportunities than those with a lesser amount of education, especially in today’s depressed job market. If you have had specific vocational training to work in a certain business or trade (for example, formal training as a plumber, welder, carpenter, electrician, nurse’s assistant, etc.), the impact of an on the job injury would be less for you than perhaps someone who has absolutely no vocational training.
In addition to the above considerations, a judge deciding your vocational disability is also limited by the provisions in Tenn. Code Ann. Sec. 50-6-241(b)
If you have had a ‘meaningful return to work’, with your pre injury employer at a wage equal to or greater than before the accident, you can receive no more than 1.5 times the highest doctor’s impairment rating.
If you have not had a ‘meaningful return to work’, you could receive as much as 6 times the highest doctor’s impairment rating.
However, before you decide the value of your case on your own without any help from this office or another competent workers compensation attorney, consider breaking down the preceding two (2) sentences as well as the provisions of Tenn. Code Ann. §50-6-241(b)
What is a ‘meaningful return to work’ under the statute and relevant case law? What doctor’s impairment rating are we talking about?? The opinion of the treating doctor that is hand-picked by the workers compensation insurance carrier for your employer??OR can the judge consider other the opinion of a family doctor or another doctor hired to perform an independent medical evaluation?
There are numerous cases decided by Tennessee courts that discuss what would constitute a meaningful return to work. Likewise, there are hundreds of doctors out there, opinions vary and the practice of medicine is NOT a black and white kind of thing. Medical guidelines on establishing disability are certainly subject to interpretation.
I recommend that any person who is injured on the job, who has even the slightest belief that he or she has a permanent injury or restrictions should seek the advice of an experienced workers compensation attorney. I offer a free consultation in workers compensation cases and promise that I will give your potential workers compensation claim thoughtful and careful consideration. Just complete the simple form on the home page of our website, ask for help with worker’s compensation and submit the information.
You can also call the Jackson office at 731-423-1888 or the Brentwood office at 615-371-6136.