November 1, 2022
by Omeed Ghaffari

Reassessing an injured worker’s status for permanent total disability following a reopening application in Washington workers’ compensation

An injured worker is permanently and totally disabled within the meaning of the Industrial Insurance Act when, as a result of the industrial injury, he/she is unable to perform any gainful employment on a reasonable consistent basis existing in the labor market within the worker’s qualifications. After an injured worker successfully reopens his/her claim based on an accepted condition that has objectively worsened, the injured worker must be found employable again before the Department will reissue a closing order. In re Darla Ellinghausen shows us that a slight worsening of a condition, even when the percentage rating of impairment does not increase, can still result in the award of a pension provided that a preponderance of the evidence shows the worker can no longer maintain gainful employment.

In re Darla Ellinghausen involves a worker who injured her left knee back in 1996 while working as a home care provider. The injured worker had her claim closed and reopened on two occasions with a 50-percent impairment rating for the left lower extremity. Following the most recent reopening application, the injured worker claimed she was unable to work and was permanently and totally disabled. The defense noted the injured worker was found employable back in 2002 when her claim was first closed as a result of the skills she obtained during her vocational retraining and found employable again in 2008 when her claim was closed a second time. The injured worker presented testimony that the clerical skills she previously obtained during her six-week vocational training program were outdated and inadequate to make her competitive in the labor market.

The defense then argued the injured worker failed to make a prima facie case that she was totally and permanently disabled because she had not shown objective evidence of worsening. The claim was previously closed with a 50-percent impairment rating for the left lower extremity and the defense presented medical testimony that the injured worker continued to have a 50-percent impairment rating. The defense argued that since there was no increase in impairment, the knee condition did not worsen and the injured worker was not permanently and totally disabled. The Board disagreed and found the evidence of worsening does not need to be substantial and concluded the injured worker was permanently and totally disabled.

The Board’s decision clarifies what evidence is relevant when reassessing an injured worker’s employability. Evidence that an injured worker has the same permanent impairment rating following a reopening application is not an absolute defense against a pension award. When working with a vocational counselor on a claim that involves a degenerative condition, I recommend factoring in the long-term implications of the injured worker’s health and the longevity of the skills learned through the retraining program. Skills that are more tech-based are valuable in the long run and often involve sedentary positions. Addressing this potential issue early on can save both parties from unnecessary litigation. It is also always important to clarify the accepted conditions on a claim, especially if there are preexisting degenerative conditions involved.

If you have any questions or concerns about reassessing an injured workers’ employability following a reopening application, please feel free to contact me at (503) 412-3105 or .

Posted by: Omeed Ghaffari