Permanent Total Disability Claims: Ripeness Issues

The Commission has addressed the issue of whether a claimant may file for permanent total disability benefits while he/she is still on an open award for temporary total disability benefits. The case law suggests that this procedure is not favored.

“As a matter of practice, the Commission does wait until nearer the expiration of the 500 weeks before converting a temporary-total award to a permanent-total award since by that time, there is frequently no question as to whether the claimant is permanently and totally incapacitated.” Long v. DBR Const., Inc., VWC File No. 164-30-05 (decided July 6, 2000). Further, “an opinion about potential for future improvements is only speculative, especially upon consideration of the possibility of developments in medical technology that might be beneficial to a claimant.” Id. Therefore, an award of permanent total disability benefits “far in advance of the expiration of the 500 weeks is inappropriate.” Id.

This is not to suggest that a claimant may never convert a temporary total disability award into a permanent total disability award. “We do not hold that the claimant must wait until the full 500-week period for temporary total disability benefits has actually expired before filing [his/her] claim.” Id. However, it is clear that the Commission discourages filing for permanent total disability prematurely.

Permanent total awards present the “worst case scenario” in workers’ compensation claims. Any avenue for defending these claims should be explored.

Where the claimant is on an open award for temporary total disability benefits, and he/she attempts to convert that award into a permanent total award, it should be confirmed that the statutory 500 weeks is close to expiration. Much could happen to the claimant during the 500 week period. Advancements in medical treatment and technology may improve the claimant’s condition to a level where he/she is no longer eligible for a permanent total award under the Code.