NY Workers' Compensation Defense

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.

 

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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.