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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New Maximum Weekly Indemnity Benefit Rate as of July 1, 2017

Practice Tips WCB Announcements

The Board announced the new maximum weekly benefit rate for accidents after July 1, 2017. Accordingly, the maximum weekly benefit rate is $870.61 for compensable lost time for workers’ compensation claims with dates of accident during the period from July 1, 2017 through June 30, 2018.

Each year since reforms to the law in 2007 the maximum indemnity rate has increased. The benefit rate a claimant receives is determined by their date of injury and does not increase in the future as the maximum rate changes.

Date of Accident Weekly Maximum
Total / Partial
July 1, 2016 – June 30, 2017 $864.32 / $864.32
July 1, 2015 – June 30, 2016 $844.29 / $844.29
July 1, 2014 – June 30, 2015 $808.65 / $808.65
July 1, 2013 – June 30, 2014 $803.21 / $803.21
July 1, 2012 – June 30, 2013 $792.07 / $792.07
July 1, 2011 – June 30, 2012 $772.96 / $772.96
July 1, 2010 – June 30, 2011 $739.83 / $739.83
July 1, 2009 – June 30, 2010 $600 / $600
July 1, 2008 – June 30, 2009 $550 / $550
July 1, 2007 – June 30, 2008 $500 / $500
July 1, 1992 – June 30, 2007 $400 / $400
July 1, 1991 – June 30, 1992 $350 / $350
July 1, 1990 – June 30, 1991 $340 / $280
July 1, 1985 – June 30, 1990 $300 / $150

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. 

2017 New York Workers’ Compensation Board Legal Holidays and Closures

WCB Announcements

The New York Workers’ Compensation Board has released the 2017 Legal Holidays and Board Closures.

This is not the same as the Board’s hearing schedule, which has not yet been released. In addition to the below dates, there are numerous dates when the Board is open but there are no hearings. It is anticipated the Board will announce these dates in the near future.

The Board will be closed on the following dates:

New Year’s Day Monday, January 2 (Observed)
Dr. Martin Luther King, Jr. Day Monday, January 16
Presidents’ Day Monday, February 20
Memorial Day Monday, May 29
Independence Day Tuesday, July 4
Labor Day Monday, September 4
Columbus Day Monday, October 9
Thanksgiving Day Thursday, November 23
Christmas Day Monday, December 25

New York Workers’ Compensation Board Announces New Hearing Process for Opioid Weaning Issues

FAQs Medical Treatment Guidelines (MTG) WCB Announcements

Recognizing that opioid addiction is a major public health crisis, the New York Workers’ Compensation Board yesterday announced a new hearing process to address opioid weaning issues. In 2014, the Board implemented the “Non-Acute Pain Medical Treatment Guidelines” (“MTG”) to address opioid usage in workers’ compensation claims.

As the “Non-Acute Pain Medical Treatment Guildeines” makes clear, long-term opioid use is only recommended in limited circumstances, and must involve constant clinical monitoring and re-evaluation. The guidelines also includes best practices for safely weaning injured workers from opioids and other narcotics.

Requesting a Hearing 

Under the new process, the insurance carrier or self-insured employer can now request a hearing to address whether the claimant should be weaned from opioids. In order to request the hearing, the Board requires an IME report or Records Review, “which indicates weaning goals and recommended weaning program or resource” be submitted with the RFA-2.

In response to the RFA-2 filed by the insurance carrier:

The claimant will have the opportunity to submit a medical report from his or her prescribing physician. The report must contain the provider’s review of the use of opioid medications, a list of the claimant’s current medications and a review of whether the opioid medication is in compliance with the Non-Acute Pain Medical Treatment Guidelines. The provider may comment on weaning resources identified in the IME and/or provide alternative resources. The medical report is due by the date of the hearing, which will be held approximately 45 days after the Board notifies the claimant of the insurer’s request for a hearing.

If the claimant or his legal representative wishes to cross-examine the IME, they may do so. However, the new procedures require the deposition transcript(s) to be in the Board file prior to the opioid weaning hearing. Should the treating physician submit medical evidence contrary to the IME, the insurance carrier may request cross-examination of the treating physician at the hearing.

The Hearing Process

Once all evidence (medical reports, deposition transcripts, weaning recommendations) is submitted and the parties are heard, the Law Judge will issue a ruling finding either:

  • Insufficient proof that there is a need for continuing long-term opioid use and the claimant must be weaned from the narcotic medication(s); or
  • Insufficient proof that there is a need for continuing long-term opioid use and the claimant must be weaned from the narcotic medication(s), and enrolled in an addiction treatment program; or
  • Claimant demonstrated the opioid use was effective in terms of improved function and reduction of pain, and that weaning will be unnecessary at this time.

When the WCLJ rules that the claimant must be weaned from the opioid medication, the insurer will be required to cover the cost of the claimant’s addiction treatment program or weaning protocol, as directed. If the claimant is to be weaned without addiction services, the insurer will remain liable for the claimant’s medications for the duration of the weaning process. If an addiction treatment program has been directed, then after 30 days, the insurer will only be liable for payment of narcotic prescriptions written by an addiction treatment program physician.

Basically, this new process ensures the issue of whether a claimant’s opioid medication treatment is within the Non-Acute Pain Medical Treatment Guidelines will be addressed in an expedited matter and sets forth the process for how these issues are to be litigated.

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