Permanency

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 50% loss of use of the arm, this equates to 156 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 50% SLU of her right arm
  4. 50% of 312 weeks = 156 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 156 weeks = $93,600 award to claimant.

Here is a very useful Schedule Loss of Use chart which specifies the number of weeks for each body part and breaks down the number of weeks depending on the SLU percentage.

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.