Friday, January 8, 2016

What's In A Name?

About half of the United States have capitated limits on the duration that an injured worker can get temporary disability indemnity benefits.

The trend started about 20 years ago, when TTD duration was unlimited, and so was the open status of claims.

It is common knowledge - the longer a claim stays open the more expensive it becomes, and the less likely the injured returns to work.

In response, states started implementing caps on TTD duration. This, of course, was challenged in the courts and universally upheld as a legislative prerogative.

Since then, 23 states have capitated TTD status. The caps range from 104 weeks in California and Florida, and 105 weeks in Texas, to as many as 700 weeks in New Mexico.

Another 20 states, including Illinois and New York, allow an injured worker to collect benefits for the duration of temporary disability, according to the Workers' Compensation Research Institute.

In Kentucky, workers can collect TD for the duration of disability or until they qualify for Social Security. Iowa allows injured workers to collect TD benefits for the rest of their lives.

Washington currently has no cap on TTD, but a bill proposed by Rep. Matt Manweller, R-Ellensburg, House Bill 2337, would allow workers to collect temporary disability benefits for as long as total disability continues, or 60 months, whichever is less.

At the same time, Manweller filed House Bill 2338, which would end TD benefits when a worker reaches maximum medical improvement. The bill would also authorize a reduction in TD benefits if the worker has not reached maximum improvement, but has recovered some earning capacity.

A worker not yet at MMI who has partial earning capacity would be entitled to 80% of the actual difference between present wages and earnings at the time of the injury, provided wages and benefits don't exceed 150% of the state's average monthly wage or 100% of TD benefits.

Washington's Joint Legislative Audit Review Committee published a comprehensive report on costs in the state's workers' compensation system, pointing to the lengthy TD duration as a key cost driver.

According to the report, the average TD duration in Washington state was 291 days in 2012, compared to an average of 140 days in 46 other states, as estimated by the National Council on Compensation Insurance. Average duration of TD benefits in Washington has exceeded the national average each year from 2001 to 2012, according to the committee's report.
The committee blames that duration on the fungible standard of "employable."

"This is different from the majority of states that terminate temporary disability benefits once maximum medical improvement is attained, regardless of 'full' employability; if there is 'zero' employability, then permanent and total disability benefits would be warranted," the report says. "This difference, at least in large measure, helps explain the longer average time-loss durations in Washington."

In general I'm not in favor of drawing artificial lines in the sand. Each case, each person, each injury, is different. What works in one situation may not apply to a similar, but different situation.

But temporary is temporary - it is not of unlimited duration. At some point there has to be a declaration that, while someone may continue to improve throughout their lives, a condition is no longer "temporary" - we all have to move on.

What's interesting to me is that Washington's JLARC seems to think that the "employability" standard is more subjective than the Maximum Medical Improvement standard used by other states as a determinant for ending TTD status.

"It is a matter of some disagreement between employers and labor advocates in Washington state as to whether the way 'employability' is assessed in Washington is fair and reasonable," they say about the employability standard. "Some feel that identifying that the person can get a common job making minimum wage (e.g. fast food, retail, delivery, customer service) satisfies the test. Others feel that employability must take into consideration the personal limitations of the worker that may have pre-existed the injury, e.g. prison record, substance abuse, extensive tattoos/body piercing."

But when it comes to MMI, "It seems logical that when most injured workers reach maximum medical improvement, often also called 'fixed and stable,' they are no longer temporarily totally disabled, since additional treatment will not help them recover any more," implying that MMI is a more objective standard.

It isn't. Both rely on an "expert's" opinion. While an opinion may be based on fact, it is still an opinion: "a belief or judgment that rests on grounds insufficient to produce complete certainty."

The only way to "produce complete certainty" is to make something certain - and a time limit does that if "temporary" is to meet dictionary standards.

"What's in a name? That which we call a rose
By any other name would smell as sweet."
Romeo and Juliet (II, ii, 1-2)

What's in "temporary"? "Lasting, existing, serving, or effective for a time only." Employability, MMI, or 60 months...

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