Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Permanent Disability Awards

Introduction

In Maryland, there are two different forms of permanent disability – permanent partial and permanent total.  Relevant to calculating a permanent disability award is both the employee’s average weekly wage, in addition to the overall State average for a given year. Further, there are four different “tiers” of permanent disability benefits under the Maryland Worker’s Compensation Act (“the Act”).[1]  The first three tiers deal with permanent partial disability, whereas the fourth tier pertains to permanent total disability.

The Act provides for specific compensation rates for the loss or loss of use of certain body parts; specifically, § 9-627 of the Labor and Employment (“L&E”) Article of the Maryland Code provides various “scheduled loss” injuries.  For example, a hand and foot are compensated at a rate of 250 weeks, whereas an arm and leg at a rate of 300 weeks.[2]

Permanent Partial Disability

The first tier of permanent disability awards is outlined in L&E § 9-628 and applies when a claimant is due less than 75 weeks of compensation.  The second tier applies when a claimant is due between 75 and 250 weeks of compensation, and “equals two-thirds of the average weekly wage of the covered employee but does not exceed one-third of the State average weekly wage.”[3]  Tier three, also known as serious disability, applies when owed compensation is greater than 250 weeks, and “equals two-thirds of the average weekly wage of the covered employee, but does not exceed 75% of the State average weekly wage.”[4]  Additionally, when an employee qualifies for serious disability, “the Commission shall increase the award or awards by one-third the number of weeks in the award or awards, computed to the nearest whole number.”[5]

The WCC Commissioner has the discretion to award compensation for the loss of a scheduled member to a precise percent.  That is, the rate of compensation in L&E § 9-627 pertains to a loss of use of 100%; i.e. it provides the maximum amount of compensation due for the total loss of a scheduled member.  However, the Commissioner may attribute less than a 100% disability rating to a scheduled member.  Thus, if the Commissioner were to find 50% loss of use of the right hand, a claimant would be owed 125 weeks of permanent disability benefits, rather than the 250 weeks that is provided in L&E § 9-627(d)(1)(ii).

See additional permanent partial disability information here.

Permanent Total Disability

According to L&E § 9-637, permanent total disability equates to two-thirds of the injured employee’s average weekly wage, but again may not exceed the State average weekly wage.  The State average is based on the particular year in which the disability occurs.  In the words of Clifford B. Sobin:

A claimant is permanently totally disabled if the claimant is so injured that the individual can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist. Evidence that the claimant has been able to earn occasional wages or certain kinds of gainful work does not necessarily rule out a finding of total disability. Even if the claimant is working at the time the claimant’s disability status is adjudicated, the claimant may be found permanently and totally disabled if the employment is sheltered and the claimant’s activities could reasonably be construed to not be representative of the ability to perform gainful employment.[6]

Moreover, the loss of multiple scheduled members may carry a presumption of total disability.  According to L&E § 9-636(b), the loss of either both arms, both eyes, both feet, both hands, and/or both legs equate to a permanent total disability “absent conclusive proof to the contrary.”  Further, the presumption also applies to the loss of “a combination of any 2 of the following: an arm; an eye; a foot; a hand; and a leg.”[7] 

Ambiguities Resulting from L&E § 9-627

Again, L&E § 9-627 provides for various “scheduled loss” injuries.  In addition to the above-mentioned compensation rates for hands, arms, legs and feet, the Act also provides for the loss of an eye (250 weeks), “a great toe” (40 weeks), as well as individual calculations for every finger.  However, the Act fails to provide a calculation for wrist and ankle injuries, which leads to uncertainty as to how such a disability is to be compensated.

For example, a wrist injury can reasonably be considered as a hand or as an arm for purposes of a disability award.  Likewise, an ankle injury may plausibly be calculated as a loss of a leg or a foot.  Obviously, such a determination substantially affects the amount owed to a claimant, as leg and arm injuries are valued higher than the loss of a hand or foot.

Although L&E § 9-627 does not include a wrist or ankle as one of its “scheduled members,” subsection (g) of § 9-627 does mention the two body parts in the context of amputations.  Specifically, according to L&E § 9-627(g)(1), “[a]n amputation at or above the wrist or ankle may be apportioned to the loss of the use of the arm or leg, but may not be less than the compensation for the loss or loss of use of a hand or foot.”

In light of subsection (g)(1), therefore, it is reasonable to conclude that the Act would permit a Commissioner to treat a loss of use of an ankle and/or wrist as a loss of use of a leg and/or arm, respectively.  In other words, because it is the Commissioner who listens to the pertinent testimony first-hand at the disability hearing, the Act allows for discretion, in regard to the proper calculation of a permanent disability award.

Conclusion

The Workers’ Compensation Act provides for a finite period of permanent disability compensation depending on the nature of a given injury.  The Commissioner has the discretion to award benefits in proportion to a specific percentage of “loss or loss of use” of a scheduled member.  However, a gray area arises where a disability is due to an injury to a non-scheduled member, such as a wrist or ankle.



[2] Md. Code Ann., Lab. & Empl. § 9-627 (hereinafter “L&E”).

[3] L&E § 9-629.

[4] L&E § 9-630(a)(1)(ii).

[5] L&E § 9-630(a)(1)(i).

[6] 1 MD Workers’ Compensation § 13:9, Permanent total disability awards.

[7] L&E § 9-636(b)(6).