DI 21501.265 Wisconsin APTD/AB State Plan
A. Permanent and total disability — determination of disability and definitions
To be “disabled,” the individual must have one or more impairments verifiable by medical findings, which singly or in combination are of major importance and of a degree to interfere with the individual's ability to perform significant functions, such as moving around, handling objects, hearing, seeing, speaking, reasoning, understanding, etc. The impairment may be physical or mental, organic or functional, acquired or congenital.
2. Permanent disability
For the disability to be “permanent” the impairment(s) must be expected to result in death or has lasted or can be expected to last for a continuous period of not less than twelve months.
If a known treatment is unavailable, inadvisable, or the individual refuses treatment and his decision is reasonable, the impairment shall be deemed permanent if, without treatment, it is not likely to improve in a twelve month period or diminish to an extent to cease to be of major importance.
The fact that treatment and/or vocational rehabilitation is or may be possible does not preclude a finding of “permanent” disability.
3. Totally disabled
To be “totally” disabled, the individual must be substantially prevented by reason of a permanent impairment from engaging in a useful occupation within his competence.
The impairment must result in such a lack of ability to perform significant functions as to substantially prevent performance of activities required by a useful occupation for which the individual is qualified. The individual does not have to be completely helpless. The fact that the individual is unable to carry out his last or usual occupation does not in itself qualify him as totally disabled. The occupation must be one for which he is qualified by age, training, education, work experience, or natural ability.
Total disability does not involve consideration of how long the individual will be unable to engage in a useful occupation. Even though the impairment meets the definition of “permanent,” a finding of total disability is possible even though treatment or training might later make possible the performance of a useful occupation.
The determination of total disability will be made on the facts of each case. This will require evaluation of the severity of the impairment, and of its effect on the individual, and finally, consideration of the individual's abilities so that it can be determined whether there remains a capacity to engage in a useful occupation. Thus, with two individuals having the same impairment of a like degree of severity, one may be totally disabled and the other not totally disabled because of variations in social factors.
Various borderline emotional and psychiatric conditions should be looked into with increased individualization of the patient and with particular attention given to how “totally” disabled the person is in light of his social situation, past and present, including built-in obstacles to emotional recovery including evaluation of past successes and failures as evidenced by school and work histories, strong or weak marital relationships, etc. The degree of disability is very difficult to evaluate in this area so that each case needs to be evaluated independently on its own merits.
An impairment may be more limiting for an older person than for a younger person since, in addition to its influence on the permanence of the impairment, the aging process also affects psychological adaptability, general health, speed and efficiency. The amount of training and education a person has is a factor in determining his adapt-ability to other occupations when he is unable to continue his usual occupation. An individual who all his life has done simple unskilled work may find it difficult to adjust to a different occupation if he acquires a handicap that prevents him from carrying on the work in which he is experienced. Experience in unskilled work only, especially when paired with limited education, may indicate limited vocational adaptability. On the other hand, a trained person with varied work experience very often is able to make vocational adjustments.
4. Useful occupation
A “useful occupation” is gainful employment (self-employment or employment by others) including housekeeping.
“Gainful employment” is work available in the area to which the individual has access considering his impairment. There must be a return in money, goods, or services. However, it does not include activities primarily of a therapeutic or rehabilitative value, even though there may be some money return for such activity. Such activities include hobbies, activities for which no replacement would be hired if the activity were discontinued by the applicant; occupational therapy; training carried out under the supervision of a rehabilitation agency including employment in a sheltered workshop if so supervised; and noncompetitive employment as on a county works project, under an opportunity workshop program, etc. The fact of current participation in such activity shall not in and of itself preclude a finding of disability.
5. Substantially prevented
An individual is not “substantially prevented” from engaging in a useful occupation:
if able to perform activities required by gainful employment well enough, for a sufficient number of hours, or with sufficient regularity to receive substantial and predictable remuneration for such employment; or
for housekeeping, if able to perform on a continuing basis outside of the individual's home and without substantial supervision or assistance from others, a significant combination or grouping of the manipulative and managerial activities required to do housekeeping.
The ability to earn money is one of the factors which must be considered in determining whether or not a person has a disability. Using a dollar amount of income shall not however be the decisive factor in determining such disability.
The earnings or losses of a self-employed individual often reflect factors other than the individual's work activities in carrying on his trade or business. For example, a business may have a small income or may even operate at a loss even though the individual performs sufficient work to constitute substantial gainful activity. Thus, less weight is given to such small income or losses in determining a self-employed individual's ability to engage in substantial gainful activity, and greater weight is given to such factors as the extent of his activities and the supervisory, managerial, or advisory services rendered by him.
6. Special situations related to “substantially prevented”
Under the following circumstances persons for whom some useful or remunerative activity is possible will be considered as “substantially prevented” from engaging in a useful occupation, if the activity is not substantially remunerative:
Medical evidence shows that the individual's condition is such that attacks of pain, shortness of breath, dizziness, exhaustion or other medically demonstrable reactions occur at intervals and with such intensity as to prevent engaging in a useful occupation on a predictable or regular basis.
An individual who is unable to perform the essential activities of daily living, performs some work through supreme effort; the impairment is so severe that it would be commonly assumed to prevent him from engaging in any useful occupation; and it is found that:
the time and effort expended is far beyond that ordinarily required for the particular activity; or
the opportunity to work and market his goods or services is provided out of sympathy; or
other persons help more than usual to enable the individual to “carry on.” That is, the individual is doing more than can be ordinarily expected from individuals with impairments of similar severity.
By Reason of
The individual must be substantially prevented “by reason of” a permanent impairment from engaging in a useful occupation. A person may be unemployed for a number of reasons other than disability, such as individual employer preferences, business and economic conditions, etc. Such factors, however, do not substantially prevent him from engaging in a useful occupation by reason of his impairment.
B. Guidelines for determining if treatment is unavailable, inadvisable, or reasonably refused
A condition is usually considered remediable if it can be helped by generally accepted therapy. To be considered as permanent, it must be determined by the state DA Review Panel that treatment is:
Unavailable to the individual because of the circumstances of his particular case; for example, because of inaccessibility to necessary specialized treatment; or
Inadvisable for the individual because of age, general health, complications of other health conditions, etc; or
Reasonably refused by the individual. In determining reasonableness, the following factors will be considered:
whether treatment involves significant risk to the life or health of the individual;
whether further loss may result from treatment (as for the near blind person who may lose remaining vision through surgery);
whether religious convictions enter into the decision; and
whether genuine fear exists.
An example of unreasonableness is refusal to accept treatment when failure to secure it endangers the lives of others.