When there is a partial or total amputation of an extremity, disability in the workers' compensation system can be tricky. The current system requires use of a book called the AMA Guides which rates "medical impairment." Medical impairment often does not take into account functional loss. Functional loss is essentially how you are limited in your daily life and work. Medical impairment often times will not take into account the amputation impact.
If a person has a hand amputated or loses a thumb or the majority of their fingers in an accident, the most medical impairment may consider is loss of use of a hand. However, the loss of use of hand is not the same as the loss of use of an entire arm. If a person does not have a hand, shouldn't consideration to the entire arm been considered?
As you can see, disability in these types of cases make them complex.
Medical care in an amputation case can be complicated. We've represented clients who have other complications such as diabetes or cardiovascular issues. Often times, medical conditions unrelated to the injury impact the overall medical care (and disability discussed above). Complications involving nerve damage, infections, phantom limb syndrome, DVTs (deep vein thrombosis), contractures (stiffening of muscles, tendons, etc.) are seen in these injuries.
We've had some clients who needed nurse case managers highly involved in the day-to-day care up to hospice care if there is a serious infection or potential for further amputation.
Some of our amputee clients will choose to wear a prosthetic to help improve the quality of life after the injury. A prosthetic will help them perform functions like walking, running and handling items. It gives them the freedom to do many things on their own or with little assistance.
Those who decide to utilize a prosthetic will have to closely monitor its condition. Typically it will last several years. However, the lifespan of a prosthetic depends on the individual and the "wear and tear" the device goes through.
Cars can also be retrofitted in order to address the ability to drive. We've had clients go through that process, so they've been able to drive.
Injuries that occur on or after 01/01/2013 do not allow disability for psychiatric injuries that are consequence of injuries. For example, an amputation injury can have significant psychological impact, however, on the surface the law does not allow additional permanent disability for psychiatric disability. Understanding the nuances of the law does lend itself to exceptions to the rule. It's not just knowing the rule; it's understanding how to develop the case in a fashion that the exception to the rule is applied.
Social Security / Medicare
In many catastrophic claims, the injured worker is eligible for Social Security Disability. Although that is not an area of law we handle, it's important for a workers' compensation attorney to understand the impact of Social Security with the workers' compensation claim; special paperwork needs to be done.
Additionally, Medicare is a critical benefit especially if the injured worker has other health conditions. A workers' compensation settlement can impact Medicare rights, therefore, your attorney must understand how to prepare the proper paperwork that Medicare will approve.
Structured Settlements / Medicare Set Aside Trusts
If you are on Social Security Disability and/or you are a Medicare beneficiary, then a Medicare Set-Aside Trust (MSA) would be required before you settle your case by Compromise and Release. The workers' compensation insurance company would obtain a MSA from a company who prepares them. Then that MSA would need to be submitted to CMS (the third-party agency that Medicare uses to address these issues). The MSA company would need all medical records from your workers' compensation case in the last two years, a prescription list from all pharmacies for the last two years, and a Social Security Administration release.
Special Needs Trusts
If a client is on Medi-Cal, public assistance, welfare, or any other benefit which is dependent on income and assets, a Special Needs Trust may need to be setup in order to properly settle a workers' compensation case.
Pre-Existing Conditions Combined With Amputation Injuries
If a client has amputation, that injury alone does not limit them from having a productive future at work. However, in some cases, the injured worker has pre-existing injuries, health conditions, anxiety, depression, and other disabling conditions that the worker could manage before the amputation injury. However, the amputation injury has put the client "over the edge" as far as ability to work in the market.
Basically, from a practical point of view when you combine the pre-existing problems with the amputation, the client cannot function in the open labor market. This doesn't mean that they can't live their life; it means they cannot compete in a competitive job market. There is a special type of workers' compensation claim called a Subsequent Injuries Benefit Trust Fund (SIBTF) claim and that type of claim is one your attorney should understand and consider in these situations.