Indiana Worker's Compensation: Permanent Total Disability and Related Developments

Recent Developments in Indiana Worker's Compensation Law Involving Permanent Total Disability Benefits.

The Indiana Court of Appeals addressed a worker's compensation case on appeal involving the denial of permanent total disability benefits to an injured worker.

In Keith v. Indiana Bell, 6 N.E.3d 509 (Ind. Ct. App. 2014) an injured employee asserted a claim for permanent total disability (“PTD”) benefits. The Single Hearing Member found that the employee was not entitled to an award of PTD beneifts. In June 2013, the Full Board affirmed the Single Hearing Member and adopted the findings and denial of PTD with one member dissenting. The employee appealed the Full Board’s determination and the Court of Appeals affirmed.

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The Court noted to establish a total disability, an injured employee must prove that he cannot carry on reasonable types of employment. The reasonableness of the type of employment is determined by assessing the individual’s “physical and mental fitness for the opportunities and by their availability.” Once an injured employee has established the degree of physical impairment, coupled with other facts such as the claimant’s capacity, education, training, or age, and has established that he has attempted unsuccessfully to find work or that it would be futile to search for work in light of his impairment and other characteristics, the burden of producing evidence that reasonable employment is regularly and continuously available then rests on the employer. Walker v. State, Muscatatuck State Dev. Ctr., 694 N.E.2d 258, 265 (Ind. 1998).

Injured employee argued that the totality of the evidence relied upon by the Board did not support its conclusion. He maintained that the Board should have awarded him PTD benefits based upon: 1) the vocational expert's testimony stating he is unable to work; 2) the medical opinion of his doctor; and 3) his testimony that he cannot work. Further, injured employee argued that, having met his burden of proof, the burden shifted to employer to present evidence “that reasonable employment is regularly and continuously available.” (See Walker supra). Injured employee further contended that because employer did not challenge his VE’s testimony and because Dr. Lipson was the only physical medicine rehabilitation specialist that examined him, the Board should have afforded their opinions greater weight. Employer argued that the evidence supported the Board’s conclusion that injured employee is not totally and permanently disabled.

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The Court noted that injured employee had not sought employment since the accident. But that employee maintained that the totality of evidence shows that no reasonable employment exists as a matter of law. See Walker at 265 (holding plaintiff has burden to show that she has attempted unsuccessfully to find work or that it would be futile to search for work in light of her impairment and other characteristics). In support of his contention, injured employee stated that he was 50 years old; had a history in medium to heavy work; could not return to his previous job or work of similar capacity; was limited to lifting 50 pounds occasionally and could not lift more than 10 pounds; could  not bend, reach, crouch, or twist; needed to change positions every half hour and can only stand for a limited amount of time; and that he felt he could only work for one or two hours before lying down.

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The Court point out however that the evidence shows that injured employee was a high-school graduate; had taken 52 credit hours of college courses; could lift up to a total of 50 pounds; and was able to drive independently. In fact, although he was assigned a 30% PPI rating, none of the doctors who examined injured employee stated that he was unable to work. Instead, one of the examining doctors concluded that “he is able to return to gainful employment.”

The Court then went on to distinguish the case from Walker by noting that although Walker had only a PPI rating of 20% and had similar lifting restrictions, she was significantly less educated (eighth-grade education). Walker, 694 N.E.2d at 260.

Moreover, in Walker, the VE’s opinion was not discounted. In Walker, the VE stated that Walker had trouble urinating, dressing herself, making the bed, and running a vacuum cleaner. Walker told the VE that she could not stand more than ten minutes without experiencing pain in her back and right leg, and could not sit for more than several minutes. Id. at 262. Even if the Board had not discounted injured employee’s VE’s report, injured worker did not complain of similar types of limitations. Finally, in Walker an occupational therapist stated that “locating gainful employment within the limitations Walker demonstrated during this evaluation would be very difficult.” Id. at 263. No doctor who evaluated injured employee made a similar conclusion.

The injured employee also argued to the Court that his VE’s report should not have been discounted because the inaccurate history the VE was given and the fact that the VE did not review all of the pertinent medical evidence was not material to his VE’s conclusions.  However, the Court stated that injured employee’s position would require re-weighing of the evidence, which it could not do.

The Court in Keith concluded that injured employee had not demonstrated that it would be futile to search for work in light of his impairment. In doing so, it concluded that there was competent evidence to support the Board’s findings and that the findings were sufficient to support the decision.

Insights: This case should serve as reminder to Indiana worker's compensation lawyers regarding an injured employee’s burden of proof in a PTD claim. Specifically, this case shows the importance of having a valid functional capacity evaluation (“FCE”) which is recognized by the treating physician and having a vocational expert (“VE”) provide an accurate report based upon the restrictions identified in the FCE and any corresponding physician’s opinion. Also, VEs should review all relevant medical records in completing their reports.  Until then, the burden of proof does not shift to the employer to present evidence “that reasonable employment is regularly and continuously available.”