MMI

What Is A ‘Protracted Healing Period’ (PHP) in Workers’ Compensation?

Under New York Workers’ Compensation law, a Schedule Loss of Use (SLU) award may be made when a claimant has reached maximum medical improvement and the claimant’s body part(s) have a permanent loss of use as a result of their work-related injury.

There are two types of permanent disability benefits (Schedule Loss of Use and Non-Schedule/Classification); the type of benefit a claimant is eligible for depends on the body part injured. The concept of a “protracted healing period” only comes into play for “schedule loss of use” awards and serves to increase the value of the award. It is typically in workers’ comp world for the protracted healing period to be referred to as “PHP.”

A SLU occurs when an employee has permanently lost use of an upper extremity (shoulder, arm, hand, wrist, finger), lower extremity (hip, leg, knee, ankle, foot, toe), or eyesight or hearing. Compensation is limited to a certain number of weeks based on the body part and severity of the disability, according to a schedule set by law. Temporary benefits that have been paid are deducted from the total SLU award. [Source]

When Does A “Protracted Healing Period” Apply?

New York defines the “normal healing period” for scheduled injuries. In cases where the claimant remained totally disabled for a period of time in excess of the established healing period, additional compensation payments are required.

The Law provides as follows at Section 15(4-a):

In case of temporary total disability and permanent partial disability both resulting from the same injury, if the temporary total disability continues for a longer period than the number of weeks set forth in the following schedule, the period of temporary total disability in excess of such number of weeks shall be added to the compensation period provided in subdivision three of this section: Arm, thirty-two weeks; leg, forty weeks; hand, thirty-two weeks; foot, thirty-two weeks; ear, twenty-five weeks; eye, twenty weeks; thumb, twenty-four weeks; first finger, eighteen weeks; great toe, twelve weeks; second finger, twelve weeks; third finger, eight weeks; fourth finger, eight weeks; toe other than great toe, eight weeks.

So, where the claimant remained totally disabled after the periods of time set forth by the Legislature, the employer/carrier is exposed for additional comepnsation under the Law.

Example:

If an injured worker made $600 per week and lost his thumb, according to the Scheduled Loss of Use chart, he would be entitled to 100% loss of the thumb – 75 weeks of compensation. This would be paid at a rate equivalent to 2/3rds (66.6%) of her average weekly wage – or  $400 per week. So in this example, the loss of the thumb would give rise to an award of $30,000 for permanent disability. The other benefit the injured worker would receive is medical treatment for life in regards to the lost thumb.

However, what if prior to the claimant being classified with 100% Schedule Loss of Use of the left time the claimant was previously awarded more than 75 weeks of benefits at the total rate? For example, the claimant was previously awarded 90 weeks of benefits at the total disability rate? In that case, the added weeks of lost time would be “Added” to the scheduled award that exceed the “normal healing period,” as set forth by the statute. In the case of the thumb, the “normal” healing period is set at 24 weeks (WCL Sect. 15(4-a)). So, instead of getting nothing as would be due under the Statute without the “protracted healing” provision this claimant would actually be owed the difference between the “normal healing period” for the thumb (24 weeks) and the actual total disability time (90 weeks) or an 66 additional weeks of compensation: $26,400 in “new” money.

Temporary Partial Disability Periods

It is important to note, periods when the claimant is ruled to have a temporary partial disability, do not result in any added money for a protracted healing period. So, in the example above, if the claimant received temporary partial benefits at the marked (75%) rate for 75 weeks, the claimant would not be due any additional money to the amount set forth in the schedule loss of use chart.

For this reason, as much as possible, when dealing with schedule loss of use body parts/conditions the carrier should attempt to limit as much time as possible awards are made at the temporary total rate to avoid a potential additional ‘protracted healing period” award to the claimant at permanency.

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Determining Permanent Impairment and Loss of Wage Earning Capacity

At permanency in New York, if the claimant has a causally related permanent disability they are either awarded a Schedule Loss of Use award or classified with a permanent impairment and Loss of Wage Earning Capacity (LWEC) finding. The “New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity” issued in December 2012 set forth the New York standards for evaluating permanent disabilities.

In general, claims that do not involve schedule loss of use body parts (i.e. arms, hands, fingers, legs, feet, toes, hearing, vision) are classified with a LWEC finding at permanency. The permanency Guidelines set forth the criteria and factors used in determining the severity ranking for the medical impairment for certain surgically treated and non-surgically conditions, with “A” being the least severe medical impairment and “Z” being the most severe medical impairment. The severity ranking “is generally predictive of the expected functional loss from the medical impairment.” The Guidelines also permit consideration of an “assessment of residual functional ability/loss” of the claimant. The extent of impairment is measured by considering medical evidence of impairment and medical evidence of functional loss. Once the appropriate severity ranking is determined, the Medical Impairment Severity Crosswalk (Table 18.1) is to be applied. Table 18.1 is intended to allow for some degree of comparison between rankings of different classes and chapters.

In a typical claim, once there is medical evidence of a permanent disability from either or both parties, the parties will seek to cross-examine the opposing medical expert. The claimant will seek to cross-examine the IME(s) and the carrier will seek to cross-examine the treating physician(s). In addition to developing the medical record, the Board will schedule the claimant to testify regarding their medical impairment(s), functional abilities, and vocational skills.

The law judge’s decision on classification should contain findings as to medical impairment, functional ability, vocational factors, and the determination of Loss of Wage Earning Capacity. In order to render a LWEC finding, the law judge should develop the record as to the nature and degree of permanent impairment, work restrictions, age, education, language ability, and other relevant factors (Matter of Wormley v Rochester City Sch. Dist., 126 AD3d 1257 [2015]). In order to develop the record, the claimant should testify regarding these factors with defense counsel having the opportunity to cross-examine the claimant regarding such things as their vocational skills, education, functional abilities.

The Board has ruled that “while the impairment rating may coincidentally be the same percentage as the ultimate finding of LWEC, the medical impairment rating is not to be used as a direct translation to LWEC” (Matter of NYC Dept of Parks & Recreation).

Claims with a date of loss on or after March 13, 2007 are subject to a cap on indemnity benefits based on the Loss of Wage Earning Capacity. Only claimants found to be permanently totally disabled are entitled to disability benefits for life. Claimant’s classified with a permanent partial disability (LWEC less than 100%) are subject to a cap on their indemnity benefits based on WCL §15(3)(w) (see chart below). After the completion of the number of weeks set forth in WCL §15(3)(w), the claimant is no longer entitled to indemnity benefits.

LWEC

Max. # weeks of PPD benefits

>0-15%

225 weeks

>15-30%

250 weeks

>30-40%

275 weeks

>40-50%

300 weeks

>50-60%

350 weeks

>60-70%

375 weeks

>70-75%

400 weeks

>75-80%

425 weeks

>80-85%

450 weeks

>85-90%

475 weeks

>90-95%

500 weeks

>95-99%

525 weeks

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Board Announces Efforts to Promote Permanency Classifications

According to an announcement last week, the Board “is enacting process improvements to efficiently effectuate the classification of non-schedule permanent partial disabilities (PPD-NSL). The changes include new specialized hearing parts for handling classification of PPD-NSLs and stronger enforcement of existing requirements for medical providers to use the Doctor’s Report of MMI/Permanent Impairment (Form C-4.3) as directed.”

It will be interesting to see if the Board does in fact begin handling claims for classification more efficiently.

Often an issue that requires litigation is whether the claimant has reached Maximum Medical Improvement (MMI). Often times the Independent Medical Examiner will opine the claimant has reached MMI and there is a permanent disability. The claimant is then be directed by the Board to produce their own permanency report and their treating physician(s) opine the claimant has not yet reached MMI. The issue then has to be litigated and a WC Law Judge determines whether the claimant has reached MMI.

As you would expect, treating physicians rarely opine the claimant has reached MMI until the carrier has presented evidence of permanency. It’s against the treating physicians interests to inform the Board the claimant will not benefit from additional medical treatment.

The Workers’ Compensation Board’s announcement specifically discussed the issues with MMI:

According to the 2012 Permanent Impairment and Loss of Wage Earning Capacity Guidelines, “A finding of MMI is based on a medical judgment that (a) the claimant has recovered from the work injury to the greatest extent that is expected and (b) no further improvement in his/her condition is reasonably expected. The need for palliative or symptomatic treatment does not preclude a finding of MMI. In cases that do not involve surgery or fractures, MMI cannot be determined prior to 6 months from the date of injury or disablement, unless otherwise agreed to by the parties” (2012 Guidelines, 1.2).

 

Injured workers generally reach MMI within two years of the injury. Special circumstances may require additional time to reach MMI, but these circumstances must be documented. If a treating provider or independent medical examiner (IME) is asked to provide a permanency evaluation and believes that the injured worker has not yet reached MMI, the provider must document the treatment the claimant is receiving, specific improvements that are expected, and a timeframe by which the claimant is expected to reach MMI. As clearly stated in the regulatory definition, palliative or symptomatic treatment does not preclude an MMI finding.

 

The mere assertion of the possibility of future surgery is not a bar to MMI. The appropriateness of surgical intervention should be evaluated in light of applicable Medical Treatment Guidelines. A claimant must not only qualify for surgery but also have specific plans for surgery, including an active request for pre-authorization, if required. Judges may evaluate the credibility of the claimant or provider who asserts the possibility of future surgery, based on such factors as history of treatment, prior requests for surgery, etc. If MMI is deferred because of surgery, the claim will be followed to ensure that surgery occurs and the claim is reconsidered following post-surgical rehabilitation.

 

[Source]

 

The Board specifically discussed the requirements if surgery in the future is a possibility. In the past, the mere thought of surgery would prevent a finding of MMI.

What Is A Schedule Loss of Use (SLU) Award?

Under New York Workers’ Comp law, a Schedule Loss of Use (SLU) award may be made when a claimant has reached maximum medical improvement and the claimant’s body part(s) have a permanent loss of use as a result of their work-related injury.

There are two types of permanent disability benefits (Schedule Loss of Use and Non-Schedule/Classification); the type of benefit a claimant is eligible for depends on the body part injured.

A SLU occurs when an employee has permanently lost use of an upper extremity (shoulder, arm, hand, wrist, finger), lower extremity (hip, leg, knee, ankle, foot, toe), or eyesight or hearing. Compensation is limited to a certain number of weeks based on the body part and severity of the disability, according to a schedule set by law. Temporary benefits that have been paid are deducted from the total SLU award. [Source]

The law specifies how many weeks of benefits a claimant will receive for their disability. The Schedule Loss of Use award is based on the body part injured and how much permanent damage has been done to that body part. Each body part has a specific number of weeks the claimant will be entitled to if there is a permanent disability.

The maximum SLU award is for 100% loss of use of the arm. A 100% SLU of the arm equals 312 weeks of benefits. If the claimant is found to have a 35% loss of use of the arm, this equates to 109.2 weeks. The weekly benefit is equal to the claimant’s temporary total degree of disability benefit.

Example:

  1. Claimant injures her right arm
  2. NY WCL allows 312 weeks maximum for an arm injury.
  3. Claimant found to have 35% SLU of her right arm
  4. 35% of 312 weeks = 109.2 weeks
  5. Claimant had pre-injury Average Weekly Wage of $900. Two-thirds her average weekly wage (temporary total rate) is $600.
  6. $600 a week for 109.2 weeks = $65,520 award to claimant.
  7. Carrier/self-insured employer may take credit for prior indemnity benefits paid to claimant.

Typically, either the claimant’s treating physician or the IME will opine the claimant has reached MMI and has a permanent disability. If the body part with the permanent loss of use is a body part which requires a SLU award the doctor will provide an opinion for a loss of use. The opposing party will then produce their own permanency report opining on the claimant’s Schedule Loss of Use. There are times when both the claimant’s treating doctor and the IME will agree to the SLU. However, typically this issue has to be litigated. Often the parties will stipulate to a compromised SLU award.

The claimant’s treating physician should submit their permanency report to the Board on form C-4.3.

Physicians should base their Schedule Loss of Use findings on the Guidelines for Determining Permanent Impairment which are very specific.

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