There is no single legal definition of permanent disability. Instead, the applicable definition depends on how you are asking for legal relief or what you need to qualify for. Permanently disabling injuries can include:
- Severe burns
- Spinal injuries
- Nerve damage
- Traumatic brain injuries (TBI)
- Birth asphyxia and other perinatal injuries to infants
Even where the disability is obvious, defense lawyers and insurance adjusters may claim that an injury is not permanently disabling or even that it is hardly disabling at all. An attorney’s disability analysis will depend on whether you claim relief through a personal injury lawsuit (or settlement) or workers’ compensation.
Permanent Disability and Personal Injury Awards/Settlements
When a plaintiff has to claim damages for a personal injury, their attorney must review their medical records and receive a doctor’s report on their potential future recovery. They will also take into account the evidence you provide about your disability and how it affects your daily life. The attorney will then calculate:
- Future medical expenses for a person with the plaintiff’s level of disability
- Lost future earnings, comparing the plaintiff’s current level of ability with their previous level and earning potential
In order to calculate the plaintiff’s non-economic damages—their pain and suffering—the attorney selects a multiplier for the total amount. For a permanently disabled plaintiff, someone who cannot do their previous work or who is impaired in their daily life, the multiplier may be as high as 4 or 5.
Most personal injury claims today end in settlements. Taking a case all the way to trial is a costly and lengthy process that most seek to avoid. But when a defendant is facing an expensive claim, such as one involving a permanently disabled plaintiff, they may try to avoid paying out a settlement and decide to take the matter to trial. There are, however, risks with going to trial. Trial can end up costing the defendant a lot more than a pre-trial settlement would have. On the other hand, the plaintiff runs the risk of getting nothing at all, especially if they were partly responsible for the injury. Under Texas law, if the court finds that a plaintiff was over 50% at fault in an accident, they cannot recover at all. If they were 50% or less at fault, they can recover, but their damage award will be reduced by their percentage of fault.
Defense attorneys and insurance companies will use this to pressure a plaintiff to settle for less than their claim is worth. However, when a plaintiff has been permanently disabled in a terrible accident, the plaintiff’s attorney can turn up the pressure by seeking exemplary damages, also called punitive damages. A court can impose these as punishment if the injury occurred because a defendant was malicious or grossly negligent.
The personal injury claim process is time-consuming because it is based on finding fault and determining the plaintiff’s circumstances in each case. However, if you were injured on the job, you may be able to go through a no-fault process that should, in theory, be simpler.
Workplace Injuries and Permanent Disability
Workers’ compensation insurance was originally designed to bypass court proceedings and provide no-fault payments to injured workers. However, most Texas employers are not required to subscribe to any kind of workers’ compensation insurance or program. If your employer is a nonsubscriber, you will need to seek relief the “old-fashioned” way through the courts. But if your employer does carry workers’ compensation insurance and that insurance covers your injury, you will have to seek relief through workers’ compensation rather than through a lawsuit.
After the injury, once you have reached maximum medical improvement (MMI), your doctor will give you an impairment rating for the severity of your injury, expressed as a percentage. If your impairment is permanent, you can qualify for impairment income benefits (IIBs), which are 70% of your average weekly wage. Each percentage point in your impairment rating entitles you to three weeks’ worth of IIBs. Although this could result in years of benefits for someone with a high impairment rating, it is often not enough for a permanent disability.
You may also be able to receive lifetime impairment benefits (LIBs) for the following injuries:
- total and permanent loss of sight in both eyes;
- loss of both feet at or above the ankle;
- loss of both hands at or above the wrist;
- loss of one foot at or above the ankle, and loss of one hand, at or above the wrist;
- an injury to the spine that causes permanent and complete paralysis of both arms, both legs, or one arm and one leg;
- a physically traumatic injury to the brain resulting in incurable insanity or imbecility;
- third degree burns that cover at least 40 percent of the body and require grafting; or
- third degree burns covering the majority of either both hands or one hand and the face.
Employers and insurance carriers may fight severely injured claimants with challenges, denials, and unjust rulings. Doctors, too, can issue unfair impairment ratings, and you have the right to challenge them. It is essential to act fast—deadlines in workers’ compensation cases can be very short.
An attorney with experience in catastrophic injuries and the kind of workplace cases common in Texas, such as construction and oil rig accidents, can help you get the compensation you deserve. The attorneys at Pelaez Law Firm have the experience necessary to maximize compensation in these types of cases. Call the Pelaez Law Firm today at 210-801-9314 to schedule an appointment about your case.