The term permanent refers to an impairment, alteration or loss in body physiology, anatomy, function, or emotion which is medically determinable and which is expected to be of long-continued or indefinite duration.

1. a. 

   The permanent impairment, defect or alteration may be congenital or acquired by disease or injury.

2. b. 

   It may be a physical or mental, organic or functional, static or progressive, prone to remissions and exacerbations, single or exist in combination with other impairments or defects. It may be obvious or only discernible by thorough medical evaluation.

3. c. 

   The permanent condition must be of major importance and must be of such a nature that it is likely to continue for an indefinite or prolonged period, and the concept of the term “cure”, within 6 months from date of Review Team evaluation, cannot be applied.

   1. 1. 

      The impairment or condition must be one not likely to respond substantially to any therapeutic procedure which is known, available, and not medically contraindicated; or, the client refuses treatment and his decision to refuse therapy can be considered reasonable and prudent. (See 2234.6 for further interpretation of “reasonable refusal.”)

   2. 2. 

      No condition likely to improve, or be completely arrested or “cured” within 6 months from date of Review Team evaluation shall be considered permanent, unless one of the following descriptions is applicable:

      1. a. 

         The condition is one in which the healing process is characterized by significant tissue alterations, as in tuberculosis and Hansen's Disease.

      2. b. 

         If the condition is usually considered to be selflimiting or readily responsive to therapy, the concept of permanent may nevertheless apply if treatment is contraindicated or unavailable, or the client refuses treatment and his decision is one which a reasonably prudent person would make. (See 2234.6).

4. d. 

   Although the condition must be of major importance and of such a nature as to continue indefinitely and be commonly accepted as irreversible, the term permanent does not rule out the possibility of physical or mental restorative efforts, vocational rehabilitation, or even recovery as a result of new drugs and medical techniques. However, pending actual change in physical or mental status, the classification of permanent is proper.

5. e. 

   To substantiate a finding of permanent, objective evidence of the defect, disease or impairment, must be adequately and completely described, or verified by the examining physician, in such a manner that another physician would reasonably accept the diagnosis, or, from the description of the impairment or defect would accept the concept of permanent without examining the client.

   1. 1. 

      The unsupported opinion of the examining physician that a defect, disease or impairment exists, cannot, in itself, be accepted.

   2. 2. 

      Objective physical findings, diagnostic studies, laboratory studies, reports from recognized specialists, reports indicating discharge diagnosis or summaries from hospitals or clinics, reports or evaluations concerning client's work tolerance or function or capacity, etc., may be accepted as material supporting or demonstrating the existence of a defect, disease or impairment.

1. a. 

   The term total is not an absolute term. It refers to the inability of the client to perform those activities involved in carrying out the normal responsibilities necessary in employment or homemaking. Thus, total disability means inability to engage in a useful occupation, including homemaking.

2. b. 

   Total involves factors other than the purely medical. Such social factors as age, education, work experience, skills and training, activities required of the client in his home or on the job, living and working conditions, interest, native capacities and abilities, the extent to which he has adjusted to his defect, disease or impairment, and the availability of training and educational facilities must all be considered. The ability of the client to perform a particular job, (including homemaking) within his competence, in spite of his permanent impairment must be carefully evaluated. The client's remaining capacities and abilities must be considered as they relate to the verified medical findings and the type of activities the client is competent to perform, considering the above social factors and his defect, disease or impairment.

3. c. 

   A disability is not total if the client has the skill, ability, capacity, and is found by competent evaluation to be able to engage in an occupation other than his usual or former occupation.

4. d. 

   The occupation must be one existent in his community. If existent in the community but not available to the client, he is considered unemployed rather than totally disabled. If the occupation does not exist in his community he is totally disabled.

   Community shall mean the place where the client lives, or within reasonable commuting distance, provided the client is physically able to use public or private transportation facilities and such facilities are readily available.

The decision that a client is permanently and totally disabled requires the joint evaluation by a licensed physician and a qualified medical social worker taking into account all of the factors enumerated above, the additional factors in this subsection, and the special factors in 2234.

1. a. 

   When an individual has a permanent physical or mental disease, defect or impairment of such a degree of severity as to be considered incapable of substantially gainful employment, which is within his competence, on a regular and predictable basis, then he will also be considered totally disabled. In other words, if a client is able to perform activities well enough and with sufficient regularity to receive regular payments for his labor, or to carry on homemaking *responsibilities for one other than himself, on a continuing basis, he is not considered totally disabled in spite of any determination of the existence of a permanent defect, disease or impairment.

   The term “useful occupation” means regular employment (or homemaking responsibility *). The fact that an individual may receive some remuneration through activities having some of the characteristics of a “useful occupation” does not preclude a finding of permanent and total disability.

   See 2234.4 for further interpretation of “homemaking” and “homemaker.”

2. b. 

   In considering the status of applicants where no definitive diagnosis of a single major identifiable defect, disease, or impairment can be determined, but who nevertheless are obviously suffering from the physiological and often psychological limitations of aging, and who cannot realistically be deemed able to perform the essential elements of a useful occupation, for which they have competency, on a regular and predictable basis, a finding of permanent and total disability can justifiably be made.

3. c. 

   If an individual is properly found to be permanently and totally disabled by a Medical Review Team, this finding is not invalidated by the fact that:

   1. 1. 

      The person is undergoing medical or surgical treatment for the purpose of arresting, improving or ameliorating the permanent defect, disease or impairment; or

   2. 2. 

      The person is undergoing a planned program of rehabilitation (physical restoration and/or vocational training); or

   3. 3. 

      The person is engaged in therapeutic employment which had been planned by a physician as occupational therapy (or work tolerance) incident to rehabilitation; i.e., sheltered workshop, etc.

      See 2234.5 for further interpretation and procedures in respect to employment.

If an applicant is disabled only by reason of blindness as defined in the Blind Assistance law (less than 20/200 vision in the better eye with refraction, or field of limitation reduced to 20 degrees) he is not eligible for DA.

However, even though an applicant is legally blind, if he has other disabling conditions, which of themselves warrant a finding of permanent and total disability, then he may be found to be permanently and totally disabled for reasons other than blindness only.

Furthermore, it shall be recognized that an applicant, while not legally blind, may have a visual disability of such severity that it precludes him from engaging in a useful occupation, or the visual disability in combination with other disabilities of a relatively minor nature precludes employment. In such instance the applicant may be found eligible for DA with respect to the permanent and total disability factor.

(For CWB procedures see 2235.2 and 2237.5).

This is a complex area involving both medical and social evaluation of a DA recipient's capacity to engage in substantially gainful employment on a regular and predictable basis, his opportunity to secure suitable employment, his ability to hold a job, and the effect on motivation of the client to work by continuing or withdrawing assistance.

The following policy will guide the Medical Review Teams. It provides for a reasonable period of time, after a DA recipient has been evaluated as employable, for him to secure employment and to adjust to the job.

Evaluation of “Useful Occupation”; “Substantially Gainful Employment”—In evaluating the eligibility of a recipient who is actually employed, the Review Team in determining whether the employment is a “useful occupation” and whether he is capable of “substantially gainful employment” will carefully consider the extent to which:

1. a. 

   The employer's sympathy, compassion and altruism enter into the opportunity to engage in remunerative work;

2. b. 

   The job has been created (“engineering” the job) specifically for the individual by devising a special environment and situation, which may include the creation of a market for the product, which is based on philanthropy rather than the competitive value of the product;

3. c. 

   The energy required by the handicapped individual is far beyond that ordinarily required for the same activity for the normal individual;

4. d. 

   The individual is doing more than can ordinarily be expected from individuals with similar impairments of the same degree of severity;

5. e. 

   Such mental factors as ability to learn, to act purposefully, to remember, etc., either independently or under supervision, have been carefully evaluated; and

6. f. 

   Such personality factors as inability to relate to others, to accept supervision, to meet time schedules, have been evaluated.

See 2233.3.a. for Definitions.