If you are not totally disabled, then you must be partially disabled. That is how the workers compensation laws work. It is one or the other.
The percent of your disability is based on the percent of loss in earning power.
What is earning power? Earning power is determined what the work that is available that you are able to perform. It can also be determined by a labor market survey showing the wages for work you are able to perform. It could also be determined by returning to work to a job where you can not work full hours or by job performance that results in less paid earnings pre-injury. But just because you earn less does not mean you are partially disabled. The question is one of your capacity to make as much money, not whether you are actually making as much. It’s tricky, so consider asking one of our attorneys to review you claim to determine what you are entitled to.
Total Disability – What is it?
Are you disabled if you can not perform the same job you had performed before your injury? Is that a total disability? The answer actually depends on when you were injured. The law changed in 1996. And it could change again, so always consult a lawyer to have the most up to date information at your disposal. It used to be that total disability meant that you could not perform your pre-injury job. Then that changed in 1996, when the law became that you are totally disabled only when you can not work at all. Thus, an employer can show that other work is reasonably available that you can perform. Proving total disability is important, since the compensation rate varies depending on the percent of disability. The payment percentage is called the benefit rate. The benefit rate for total disability is 2/3 of the wage rate, up the the maximum benefit if the injury was prior to 1993. After that, it could be 50% of the statewide average weekly wage or 90% of your wage rate. The law changed again in 1996. So it is important to consider asking a qualified attorney to help you calculate your proper wage rate for your claim.