Tuesday, February 26, 2013

Is disability 'forever'?

Is it more likely an injured worker will stay on comp disability in Missouri than it is that someone will stay on the job as a Pope or as a British monarch?

What is the right amount to settle or offer in cases of  an alleged permanent total or a surviving spouse claim? This calculation involves consideration of standard life expectancy and whether to depart from those assumptions.  Paying for 20 or 30 years of benefits on the assumption that a claimant cannot work is a really bad idea for the carrier if the claimant goes back to work 6 months after a settlement.  A claimant who 'out-lives' the tables or dies the next day doesn't meet the standard projections.   An injured worker’s medical conditions or co-morbidities may reduce life expectancy. Even a surviving spouse may one day walk down the aisle again.

A recent case demonstrated the risk of miscalculation by an agreement to pay a claimant a settlement based on the assumption he would live another 24 years when he died while the motion for settlement was pending. Nance, dec. v Maxon Electric, 2012 Mo App. Lexis 1401.

Standard life expectancy tables do not adjust for co-morbidities or “rated” ages.

Medical conditions sometimes change. Section 287.470 authorizes a reduction in awards due to change in circumstances despite a dearth of reported decisions affirming a termination of disability. In some cases of people on social security disability no longer receives benefits because they are no longer disabled. This applied in about 7% of terminations. It may not happen often. That doesn’t mean it never happens. http://www.ssa.gov/policy/docs/statcomps/ssi_asr/2011/sect11.html.

Sometimes people even remarry. Even Wallis Simpson was divorced once. CDC office reports remarriage is still more likely than not within 10 years (68-81% likelihood depending on age). The report doesn’t mention comp cases. http://www.cdc.gov/nchs/data/ad/ad323.pdf.  Such things are possible.

Recent reported cases suggest an increased number of ‘totals’ in the past year. The Court identified over 200 unpaid awards of lifetime benefits against the second injury fund in the past 2 years. Skirvin v Treasurer of the State of Mo., 2013 Mo App. Lexis 84 (Jan 22, 2013). This creates the perception that the bar has been set lower to obtain lifetime benefits, and that many undeserving claimants are jumping on the dole.

There has been a lot of media attention to the cost of abuse, addiction and death from pain killers among workers over-treating for medical conditions in part because of over-zealous medical providers. Not much attention has been given to the broader cost on workers and their families when some people ‘play’ disabled, the family contagion of disability, or self-destruction from binging on high self-perceptions of disability. Despite the ‘cost’ of paying total awards for the decades, these secondary effects may ultimately have a larger societal impact.

Any party wanting to settle a case or seeking approval from the Commission must consider the circumstances of each case. Life expectancy tables are only the part of the calculus. Some people will never go back to work. Others not only could go back to work, but should go back to work for their own health.  More attention needs to be made available by the Division and at bar CLEs not just promoting how to make a claim but the real costs both to the employer and employees of such claims. Until then, most workers will believe disability is a one-way road.   

Just like diamonds, disability is forever.