Permanency

Appellate Division Issues Decision Clarifying How To Calculate Schedule Loss of Use For Shoulder Injuries

Court Decisions Permanency Schedule Loss of Use (SLU)

Case: Matter of Maloney v Wende Correctional Facility

Issue
In determining the Schedule Loss of Use (SLU) percentage applicable to a shoulder injury, whether it is appropriate to assign separate loss of use values for deficits in anterior flexion and abduction or if this is duplicative and results in an inflated SLU percentage.

Facts of Case
Claimant was a Correctional Officer who injured himself while working in July 2013. The claim was established for a right shoulder injury. At permanency, the claimant’s treating physician opined claimant had 90% SLU of the right arm while an IME opined the claimant had 50% SLU of the right arm. Following litigation of the issue, the law judge credited the IME opinion over that of the treating physician and found claimant to have 50% SLU of the right arm. The Workers’ Compensation Board affirmed the Law Judge’s finding and the claimant appealed to the Third Department.

Decision
Board decision is affirmed, finding claimant to have 50% SLU of the right arm. The Court noted “the Board is vested with the authority to resolve conflicting medical opinions concerning the SLU percentage to be assigned to aspecific injury.” Additionally, the Court noted “judicial review is limited, and the Board’s determination will not be disturbed as long as it is supported by substantial evidence.”

The Court reviewed how each of the medical experts came to their conclusion under the 2012 “New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity.” Both the treating physician and IME had assigned a 10% value due to claimant’s rotator cuff tear as required by a special consideration in the guidelines. The IME assigned a 40% loss of use for the decrease in range of motion in anterior flexion and abduction to 90 degrees under table 2.11, resulting in a total SLU finding of 50%. The treating physician also assigned a 40% loss of use for the decrease in range of motion in anterior flexion to 90 degrees under table 2.11.  However, in addition to this and the 10% loss of use attributable to the rotator cuff, the treating physician assigned another 40% loss of use for the decrease in range of motion in abduction to 90 degrees under section 2.5 (3) of the guidelines, resulting in a total SLU of 90%.

The Court noted the 2012 permanency guidelines do not address whether it is appropriate to assign separate loss of use values for deficits in anterior flexion and abduction. The Court ruled the Board has rendered multiple recent decisions that “concluded that separate values should not be assigned for anterior flexion and abduction deficits indetermining an SLU award for a shoulder injury.  Significantly, the Board noted that adding together separate values for anterior flexion and abduction deficits could produce an entirely illogical result.  Specifically, the combined value could exceed 80%, the SLU percentage that under the guidelines is applicable to a claimant with ankylosis – an impairment of the shoulder restricting the range of motion to zero degrees – and a claimant with a lesser injury and greater range of motion might actually obtain a more favorable SLU award.”

Commentary
This decision clarifies how Schedule Loss of Use issues should be resolved when there are deficits in anterior flexion and abduction under the 2012 permanency guidelines. As of January 1, 2018 the Board implemented new SLU guidelines. The new guidelines do not leave this issue up to the interpretation of the Court, instead the guidelines specifically state “if a defect of both flexion (forward elevation) and abduction are documented, the greater of the two defects must be utilized, not both. However, if the defect in both ranges of motion are moderate or higher, and the measures are within 10 degrees of each other, up to 10% may be added to the overall schedule loss of use, not to exceed ankylosis.”

Additionally, under the new SLU guidelines the claimant would not be entitled to the automatic 10% value for the rotator cuff tear, this special consideration has been removed from the 2018 SLU guidelines.

This decision makes perfect sense. If under the 2012 guidelines a claimant with zero range of motion in their shoulder (ankylosis) is not entitled to greater than an 80% SLU of the arm then it would not make sense for an individual with significantly better range of motion findings to be found to have a greater SLU.

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

MMI Permanency Schedule Loss of Use (SLU)

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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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. 

Determining Permanent Impairment and Loss of Wage Earning Capacity

Loss of Wage Earning Capacity (LWEC) MMI Permanency

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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