In The News

New 2018 Permanent Impairment Guidelines for Schedule Loss of Use

In The News Permanency Practice Tips Schedule Loss of Use (SLU) WCB Announcements

In April, part of the New York budget mandated numerous reforms to the New York Workers’ Compensation system. Workers’ Compensation law §15(3)(x), required the Board to implement new Permanency Impairment Guidelines for Scheduled Loss of Use (SLU) evaluations, with an effective date of January 1, 2018. The new SLU guidelines can be found here.

The Board made public “proposed” draft Schedule Loss of Use guidelines in September 2017 which were widely thought to be favorable to employers/insurance carriers and included some significant changes to the Schedule Loss of Use section of the existing 2012 Guidelines for “Determining Permanent Impairment and Loss of Wage Earning Capacity.” After some serious push back from claimant attorneys and trade unions, the Board issued new  “proposed” draft Schedule Loss of Use guidelines in November 2017. I appeared on the Third Fridays podcast [listen here] in December to discuss the significant differences between the first draft of the proposed changes released in September 2017 and the second draft of proposed changes posted on the Board website in November 2017.

The second guidelines proposed in November 2017 are the new SLU Guidelines that went into effect as of January 1, 2018. According to a Board Bulletin:

The 2018 SLU Guidelines will replace chapters in the existing 2012 Medical Impairment Guidelines with respect to SLU, and will take effect January 1, 2018. The 2012 Guidelines remain unchanged for determining non-schedule permanent impairments. For SLU claims that have at least one examination conducted before January 1, 2018, the Board will consider the issue of SLU to have been joined under the auspices of the Guidelines in effect at the time, and as such the Board will determine the claimant’s degree of permanent disability using the 2012 Guidelines. Where the first medical evaluation of SLU occurs on or after January 1, 2018, the question of SLU will be evaluated under the 2018 SLU Guidelines.

While the new SLU guidelines are not seen as being as employer/carrier “friendly” as the initial proposed Guidelines released in September, there are still some changes that are in the carrier/employer’s favor. Lois LLC provided a training webinar on the new SLU Guidelines, which I highly recommend.

The primary consideration in determining SLU under these new guidelines is loss of range of motion. The most significant changes from a review of the 2018 SLU guidelines pertain to total knee replacement surgeries, meniscal tears and rotator cuff injuries:

  • Under the 2012 SLU guidelines, with or without surgery the claimant was entitled to between 10-15% SLU for a rotator cuff tear. The 2018 guidelines do not include this automatic consideration and there is no longer an automatic 10-15% SLU finding for a rotator cuff tear.
  • Under the 2012 SLU guidelines, a claimant who has a work-related meniscal tear that was surgically repaired automatically was found to have 7.5-10% SLU as a special consideration in addition to any other SLU finding. Under the 2018 guidelines, this special consideration no longer exists and there is no longer an automatic 7.5% – 10% SLU added simply because a claimant with a meniscal tear underwent surgery.
  • Under the old guidelines, the guidelines specify the average SLU for a total knee replacement is 50-55%. The new guidelines indicate that a “good outcome” for a total knee replacement is 35% SLU of the leg.

It is important to note, the changes only pertain to Schedule Loss of Use and claims that resolve with a Loss of Wage Earning Capacity finding will continue to use the 2012 permanency guidelines.

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Virtual Hearings Coming To New York!

In The News Practice Tips WCB Announcements

The New York Workers’ Compensation Virtual Hearings pilot program will be rolled out starting next week for hearings at the Menands (Albany) hearing point.

Virtual Hearings will allow injured workers, attorneys/representatives, witnesses and other participants to attend hearings online. Participants will no longer have to travel to a hearing site to attend their hearing. For the time being, parties will have the option to attend any hearing eligible for a virtual hearing either in person, as they normally would, or via the Board’s video conference software program.

According to the Board website:

Virtual Hearings will be rolled out gradually to districts throughout New York State after the successful completion of the Board’s Virtual Hearing pilot. The pilot moves into the next stage with Virtual Hearings available in the Albany District Office, located in Menands, beginning November 13, 2017.

If you are eligible to attend your hearing virtually, you will see a notification of ““Virtual Hearing Available” adobe pdf at the bottom of your hearing notice, along with detailed instructions.

There is no set time frame for when all Workers’ Compensation hearings in the state will be eligible for a virtual hearing but it is clear this is coming state-wide in the near future.

Anyone that has set foot in a hearing point recently has seen updated technology in many of the hearing points and presumably this is the Board preparing for the roll out across the state.

The Board has been hosting a series of webinar training sessions for attorneys and representatives to provide instructions on how to attend hearings virtually, as well as how to use the new check-in procedure when appearing in person. During a “Question & Answers” segment of one of the webinars it was disclosed that claimants will be allowed to attend virtual hearings using audio only but attorneys and representatives will be required to appear via video. Additionally, it appears the plan is eventually for all hearings aside from discrimination matters to be eligible for the virtual hearing process.

It is anticipated there will be many “growing pains” as the Board implements this new process. Presumably, regulations and new Board rules will follow.

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New York Court of Appeals Rules Amendment to §25-a Is Constitutional

Court Decisions In The News

 

What is the Fund?
As a background, §25-a provides for a Special Fund to be set up especially to administer and pay claims arising from the reopening of closed cases. The primary purpose of §25-a is to transfer liability for awards from self-insured employers and insurance carriers to the Special Fund where the claim has become “stale.” Under §25-a, claim is “stale” if it meets certain criteria:

  1. more than seven years has elapsed from the date of the injury or death, and;
  2. where more than three years has elapsed after the last payment of compensation.

Essentially, insurance carriers and self-insured employers could potentially shift liability to the Special Fund in claims that met the criteria of §25-a. Whether a case has been officially closed so as to shift liability to the Special Fund is a decision for the Board to make. Upon transfer to the Special Fund, the carrier or self-insured employer is no longer responsible for payment or management of the claim.

The Law was changed in 2013 to close the Fund to new claims.
In an effort to phase out the Special Fund/Fund for Reopened Cases, the Business Relief Act of 2013 created an amendment to §25-a that no application by an employer or insurance carrier to transfer liability to the Fund for Reopened Cases would be accepted by the Board on or after January 1, 2014. In short, the amendment to be addressed in American Economy Ins. Co. v State of New York closed the reopened case fund to newly reopened claims as of January 1, 2014. Following the amendment to §25-a, any claims that were reopened that previously would have transferred to the Fund became the obligation of the carrier, liability would not shift to the Special Fund.

On October 24, 2017, the Court of Appeals ruled that retroactive closure of the Fund for Reopened Cases was not unconstitutional.

Insurance carriers and self-insured employers have been waiting anxiously for the Court of Appeals to render a decision of the appeal filed by The State of New York and will not be happy with the ruling.

The New York Appellate Division previously ruled that a 2013 amendment to New York Workers’ Compensation Law §25-a which closed the Special Fund for Reopened Cases (the Fund) to new applications after January 1, 2014 was unconstitutional as applied to policies issued before October 1, 2013.

In yesterday’s decision, the Court of Appeals (highest state court) ruled Workers’ Compensation Law § 25-a (1-a) as applied to policies issued before October 1, 2013 is not unconstitutional. The Court of Appeals held the amendment’s retroactive impact is constitutionally permissible and any retroactive impact of the legislation is justified by a rational legislative purpose

Impact of this new decision
For now, the Fund remains closed. I anticipate further litigation, the next step will be the United States Supreme Court, presuming they agree to hear the case.

 

2017 New York Workers’ Compensation Reforms

In The News Loss of Wage Earning Capacity (LWEC) Permanency Practice Tips WCB Announcements

The 2017-2018 New York budget (Part NNN of Chapter 59, Laws of 2017), enacted effective April 10, 2017, includes numerous reforms to the New York Workers’ Compensation system.

The Board issued a Board bulletin this week detailing some of the more important changes.

  • Cap on temporary disability benefits: The reforms amend Workers’ Compensation Law §15(3)(w) to provide carriers and self-insured employers a credit for periods of temporary disability that extend beyond 2.5 years (130 weeks) from the date of injury. It is important to note that this cap on temporary indemnity benefits does not affect claims prior to April 9, 2017.
  • Labor Market Attachment Post-Classification: The statutory changes provide that a claimant who is classified with a permanent partial disability is no longer required to demonstrate ongoing labor market attachment. The statutory change does not affect the question of attachment during periods of temporary disability prior to classification. This rule takes effect immediately. This is a significant change as claimant’s with even a minimum 1% LWEC will be entitled to ongoing indemnity benefits for causally related lost time without having to remain attached to the labor market.
  • Extreme Hardship Determination Threshold Lowered: The threshold for determining when a claimant with a permanent partial disability may apply to the Board for a redetermination due to extreme hardship has been lowered. Claimants who are found to have a loss of wage earning capacity (LWEC) of greater than 75% may now apply for such determination (formerly the threshold was greater than 80%). This rule takes effect immediately. The rule also applies to claimants whose claims were previously adjudicated with a LWEC greater than 75%. The Board issued a separate Bulletin addressing the process for Extreme Hardship Redetermination..
  • Mandatory Full Board Review: When a Board Panel reduces an LWEC finding to below the safety net threshold, and the LWEC had previously been determined by a workers’ compensation law judge to exceed the threshold, any request for Full Board Review will be considered a request for Mandatory Full Board Review. This provision takes effect immediately. Basically, if the claimant is found to have a 75% LWEC or higher by the law judge and on appeal the Board Panel reduces the claimant’s LWEC to 74% or lower, should the claimant request a Full Board Review, the Full Board must review the decision.
  • First Responder Stress Claims: The reforms will significantly affect First Responder Stress Claims. As we previously detailed in our article “Can Police Officers bring PTSD Occupational Disease Claims in New York?” for a mental injury premised on work-related stress to be compensable, the standard previously was that “the stress must be greater than that which usually occurs in the normal work environment.” Based on the 2017 reforms, first responders (i.e. police officers and firefighters, EMTs, paramedics, certified emergency medical providers, emergency dispatchers, and those with similar titles) who encounter extraordinary stress in a work-related emergency who file a claim for mental injury will not be barred from a compensable work-related stress claim because the stress they encountered in dealing with an extraordinary work-related emergency is “no-greater-than” the stress encountered by other similarly situated first responders. Of course, this change will likely result in litigation to determine what “extraordinary stress” in the context of a first responder is defined as because this is a fairly vague standard.

If you wish to have monthly NY workers’ compensation updates sent to your inbox, feel free to sign up for our monthly newsletter here. If you have a question about how the reforms impact your claim or any other New York Workers’ Compensation question, do not hesitate to contact me. 

New York Legislation Extends Deadline for New Workers’ Compensation Claims Related to 9/11

In The News Practice Tips WCB Announcements

New legislation extends the period for workers and volunteers seeking lost wage and medical benefits as a result of their involvement in the September 11th rescue, recovery and clean-up operations. Presumably, a New York Workers’ Compensation Board Bulletin will be issued in the near future outlining the details.

In November 2013, the Board issued a Bulletin detailing the legislation which extended the deadline to September 11, 2014. Prior to the extension to September 11, 2014 any claims for which the associated Form WTC-12 was received after September 13, 2010 were time-barred.

According to the official announcement:

The bill (S5745-C/A7958-C) extends the deadline for individuals to register under the WTC Disability Law until September 11, 2018. The extension will allow additional individuals to receive workers’ compensation, disability, and accidental death benefits as a result of their participation in the WTC rescue, recovery, and clean-up operations.

The World Trade Center Registry, which preserves workers’ compensation rights for those who performed rescue, recovery, and clean-up operations after the World Trade Center attacks will remain open until September 11, 2018. Previously, any claims for which the associated Form WTC-12 was received after September 11, 2014 were time-barred. Those workers were not entitled to benefits. These claims will now be reopened and considered timely.

If you wish to have monthly New York workers’ compensation updates sent to your inbox, feel free to sign up for our monthly newsletter here.