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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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 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.”