Most people with a Vermont workers’ comp claim eventually recover from their injuries and return to work, but those who do not may be entitled to permanent total disability (“PTD”) benefits. The question, however, is when you know if you are permanently and totally disabled, and how you prove it to your employer’s insurance carrier and the Vermont Department of Labor.
For certain injuries, Vermont law considers you permanently and totally disabled simply because of the type or severity of your injury. Examples of injuries which automatically entitle a person to permanent total disability benefits include the loss of sight in both eyes, loss of both hands or both feet (or one of each), paralysis, and severe and permanent traumatic brain injuries. See 21 V.S.A. 644. For other injuries, you must prove that your injury renders you “unable to perform regular, gainful work.” In making that determination, the Vermont Department of Labor not only considers your physical/mental limitations and pain, but also your age, experience, training, education, occupation and mental capacity. Likewise, you generally must have exhausted the vocational rehabilitation options available to you, leading your VR counselor to conclude that you’re not reasonably expected to be able to return to regular, gainful employment. In addition, you typically need to undergo a Functional Capacity Evaluation (“FCE”) for an evaluation of your physical capabilities (i.e. your work capacity).
In other words, there are a lot of steps that must be followed to prevail on a claim for permanent total disability benefits in Vermont. Rarely will the insurance carrier simply agree to pay you PTD benefits, which would obligate them to pay you weekly benefits (comparable to TTD benefits) for a minimum of 330 weeks (6.3 years), but more likely for the rest of your life. Instead, the insurance carrier will hire its own IME expert and its own vocational rehabilitation expert in an attempt to convince the Vermont Department of Labor that you do have a reasonable chance of returning to work at some point and are not permanently and totally disabled. If your doctor(s) or VR counselor tells you they don’t think you’re likely to return to work, it is best to call a Vermont workers’ comp lawyer to help you with your PTD claim.