Board Reveals Permanent Disability Guidelines Effective January 2012.

New York’s 2007 reforms promised employers relief from the runaway costs of an out-of-control workers’ compensation system by capping indemnity benefit weeks, instituting a system of “preauthorized” treatment to reduce medical costs, and by reviewing the failed disability duration guidelines which established the standards for awards of permanent disability in the state since 1996.

Since 2007, the Board has adopted Medical Treatment Guidelines and the new caps on awards (can not exceed 600 weeks for less-than-total disability) are in effect.

As of January 1, 2012 the “New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity” (2012 Guidelines”) will apply to all cases where there has been no medical opinion finding permanent impairment with a rating based on the 1996 Guidelines (now deprecated). On January 1, 2012 these new Guidelines will apply to all cases where there has not been an estimate of permanent impairment under the old (1996) Guidelines.

Under the New York Workers’ Compensation Law, there are four types of benefits available to an injured worker:

1. Medical treatment. Emergency and follow-up treatment for their injuries.
2. Wage compensation for earnings lost while they recover from the immediate effects of their injury.
• This wage compensation is called “temporary total” with the claimant is 100% totally temporarily disabled (cannot work at all) OR
• “Partial temporary” when the claimant can do some work – but isn’t earning their prior level of wages (usually because they can only work part time or have to work at a job that pays less than the work they were doing at the time of the accident). This is calculated as 2/3rds of the difference between old wages and post-accident wages.
3. Death benefits payable to the dependents (usually wife and kids) of a worker killed during the course of employment. This is 2/3rds of their average weekly wage at the time of injury, subject to maximums and minimums, to the wife for life.
4. “Permanency” benefits – these are payments of money to injured worker to compensate them for the “permanent effects” of an accident. As of January 1, 2012 the “New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity” (2012 Guidelines”) will apply to all cases where there has been no medical opinion finding permanent impairment with a rating based on the 1996 Guidelines (now deprecated).

Most settlements resolve the amount of “permanent disability” that a claimant is due – and the new Guidelines directly address how these disabilities are to be compensated.

Valuing Workers’ Compensation for Injuries in New York.

The happening of an injury is not enough (by itself) to warrant the payment of an award. Awards are issued for residual permanent impairment. If the claimant is due an award, the amount of money the claimant receives will depend on the nature and degree of the loss. The Workers’ Compensation Law breaks down the amount payable into two broad categories: “scheduled losses” and “unscheduled losses.”

Maximum Medical Improvement.

Before scheduled or non-schedule (classification) permanent disabilities can be determined, there must be a finding by a medical professional that the injured worker has reached maximum medical improvement (“MMI”). According to the 2012 Guidelines:

A finding of maximum medical improvement is based on a medical judgment that (a) the claimant has recovered from the work related injury to the greatest extent that is expected or (b) no further improvements in his or her condition is reasonably expected. The need for palliative care 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 six months from the date of injury or disablement, unless otherwise agreed to by the parties.

Awards for permanent disability.

Some specific injuries, such as loss of an extremity, vision loss, hearing loss, or facial disfigurement have scheduled or set payment amounts. Other losses, called unscheduled or classifications compensate the injured worker for injuries which are not on the schedule (such as a spinal injury, disc herniation, a cardiac injury, abdominal injury, etc.) but which cause continuing partial or total disability in the claimant. These unscheduled losses are classified into permanent partial disability and permanent total disability.

The statute envisions two types of permanent disability compensation:

Scheduled Loss of Use.

“Scheduled loss of use” relates to injuries to specific, enumerated body parts which are listed on a “scheduled loss of use chart” (found in this book). This is a fixed amount of compensation for injuries to fingers, toes, hands, feet, arms, ankles, knees, etc.  In other words, the Workers Compensation Law states that if you lose your thumb in accident, you get a fixed benefit – a number of weeks of compensation times your weekly rate – which is determined by the injury.

Classification.

The second type of permanent disability award is called a “classified award” or sometimes it is called a “classification.” This term “classification” doesn’t really mean anything – it just means the claimant sustained injury to a body part which is not specifically described on the “scheduled loss of use chart.” For example, injuries to the head, neck, and low back are considered “classifiable” injuries – and they are compensated in terms of a fixed number of weeks – up to 600 weeks.

Example – Scheduled Loss of Use.

If an injured worker made $200 per week and lost her thumb, according to the Scheduled Loss of Use chart, she 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 approximately $133.34 per week (two thirds of $200 per week). So in this example, the loss of the thumb would give rise to an award of $10,000 for permanent disability. The other benefit the injured worker would receive is medical treatment for life in regards to the lost thumb.

Example – Injury Giving rise to Classification.

If an injured worker earned $200 per week and sustained an injury to her low back, such an injury (if permanent) could give rise to a classification award. Any amounts already paid to me – the claimant – during the claim for my lost wages – for example, if I lost a few weeks from work – would be subtracted from the overall award.

What a treating doctor must do.

Often, there is not a simple agreement between the parties as to the extent and nature of the claimant’s residual permanent disability. In such a case, we will often have a trial. During the pendency of the trial both parties have the opportunity to present their own witnesses.

A treating physician must provide the Board with medical evidence that the Workers’ Compensation Law Judge will consider when making his or her legal determination about disability. The health provider can make a recommendation about whether or not the claimant can return to his or her regular employment. If the medical provider states that the claimant can not return to his previous employment, the medical provider should states what medical limitations exist.

The 2012 Guidelines envision that the treating physician’s evaluation of medical impairment should include the relevant basis for the impairment classification, including the relevant history, physical findings, and diagnostic test results and be provided on Form C-4.3.

The C-4.3 evaluation of impair
ment report must include the following:

1. That the injury occurred on-the-job.
2. Functional abilities and restrictions (if any). The physician should measure the claimant’s ability to perform a range of functional abilities. These should include general abilities (lifting, carrying, pushing, etc.) but also general and specific tolerances (climbing, bending, kneeling, stooping, walking, standing).
3. Exertional ability (using standard classification system – ranging from “Sedentary” to “Very Heavy.”)
4. Psychiatric Limitations.
5. Other Limitations, which would include the impact of medications on ability to operate machinery, for example.

Examining Doctors.

The Workers’ Compensation Law presumes that the medical records and reports from both treating physicians and IME doctors will be “adequate, complete, and objective.” In reality, medical reports often contain subjective impressions, such as a treating doctor’s feeling that a claimant can not return to work based on non-medical factors such as age, education, occupation, etc.

Evaluating doctors are expected to produce reports which measure, to a reasonable degree of accuracy and uniformity, the nature and extent of the impairment experienced by the individual claimant. This assessment should be based upon the loss of structural integrity, pathology, and pain substantiated through physical (clinical) findings.

In order to prepare a report on permanent impairment, the examining physician should do the following:

1. Review the Guidelines.
2. Review the medical records.
3. Perform a thorough history and physical examination and recount the relevant medical history, examination findings and appropriate test results.
4. State the work related medical diagnosis(es) based upon the relevant medical history, examination and test results.
5. Identify the affected body part or system (include Chapter and Table No. for non-schedule disabilities).
6. Follow the recommendations to establish a level of impairment.
7. For a non-schedule disability, evaluate the impact of the impairment(s) on claimant’s functional and exertional abilities.

What the Workers’ Compensation Law Judge does.

In disputed cases, the Law Judge considers the employer’s defenses and makes a determination regarding accident, notice, and causal relationship. In practice, most cases do not involve disputes about whether or not the accident took place, except for occupational claims, in which there may be serious issues of notice and causal connection. The Law Judge must be made aware of any pre-existing conditions the claimant had, prior claims and awards, and any subsequent injuries or claims.

Non-schedule/Classification Awards Post-Reform.

For dates of injury post March 13, 2007, there are two formula to be applied to distinct classes of injured worker: those workers who have returned to work (in some capacity) and those who have not.

The Working Post-reform Claimant.

Current wage information will be available for the working claimant.

The degree of disability and monetary award will be based entirely on the Loss of Wage Earning Capacity (LWEC). This is simple to calculate:

AWW less Current Earnings / AWW * 100% = LWEC %

Calculating the weekly benefits due a working claimant would follow the following:

Weekly Benefit Rate – 2/3 * LWEC * Current Wages

Example.

Presume a pre-injury wage of $500 per week. After return-to-work, the claimant now earns $350 per week. The calculation would be:

LWEC = (($500 – $350)/$500))*100% = 30%

Weekly Benefit Rate = ((2/3) * .30 * 350 = $70

Under this example, the claimant would receive a weekly benefit of $70 per week, which added to her earned wages ($350) give a total income of $420 per week.

Using the chart (“LWEC and Maximum PPD Benefit”), this benefit would be payable for 250 weeks.

The Non-working Post-reform Claimant.

If the claimant is not working, the Judge must establish a loss of wage earning capacity based on the facts in the case, considering medical evidence and vocational factors. The Judge is not expected to presume that the wage earning capacity of the non-working claimant is zero.

The calculation for the non-working claimant is as follows:

Weekly Benefit Rate – 2/3 * LWEC * AWW (at time of loss)

Unlike the working claimant, there is no current earnings to base LWEC on. Therefore, loss of wage earning capacity (“LWEC”) is based on three types of input:

1. Medical impairment. The medical impairment evaluation must be performed by a medical professional. The medical professional should apply the evaluation criteria laid out by the Board in the 2012 Guidelines. (For more on this topic, see Chapter 2: IMEs). The physician must document the injured worker’s diagnoses and impairment ranking by body part or system and state the medical basis for the impairment classification, including reference to the relevant history, physical findings, and diagnostic test results.
2. Functional ability/loss. The medical assessment of the residual functional abilities and losses is also considered by the Judge in assessing loss of wage earning capacity in the non-working claimant. The functional evaluation (recorded on Form C-4.3) should include the following:
   1. Functional ability/restrictions: On examination, the physician should measure the injured worker’s performance and restrictions across a range of functional abilities, including dynamic abilities (lifting, carrying, pushing, pulling and grasping), general tolerances (walking, sitting and standing) and specific tolerances (climbing, bending/stooping, kneeling, and reaching). These abilities and restrictions, including specific weight and time limitations, should be recorded on the Form C-4.3. Alternatively, the physician may refer the injured worker to a physical or occupational therapist for completion of the functional measurements and, after the physician’s review, incorporate them into the Form C-4.3.
   2. Exertional ability: Finally, the physician should rate the injured worker’s residual exertional capacity according to the standard classification system of Sedentary to Very Heavy. The exertional capacities relate to those activities that require lifting and/or pushing or pulling objects. The definitions of each category, which are derived from the Dictionary of Occupational Titles and used in the Social Security system, are as follows:

   • Sedentary: Exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.
   • Light: Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently and/or negligible amount of force constantly to move objects. Physical requirements are in excess of those for sedentary work. Even though the weight lifted may only be a negligible amount, a job should be rated light work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligi
     ble. NOTE: The constant stress of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.
   • Medium: Exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. Physical demand requirements are in excess of those for light work.
   • Heavy: Exerting 50 to 100 pounds of force occasionally, and/or 25 to 50 pounds of force frequently, and/or 10 to 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for medium work.
   • Very Heavy: Exerting in excess of 100 pounds of force occasionally, and/or in excess of 50 pounds of force frequently, and/or in excess of 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for heavy work.
3. Non -medical vocational factors:

• Vocational issues: Education and Training. The Board considers the role of education in a worker’s ability to qualify for different occupations and level of income. The relationship between education and loss of wage earning capacity is complicated by the fact that the impact of education is also generally reflected in workers’ pre-injury wages. Those with more education generally earn more than those with less education, both pre-injury and post-injury. Thus, in determining loss of wage earning capacity, it the court will evaluate the degree that educational achievement affects the impact of a medical impairment on a worker’s earning capacity.
• Vocational issues: Skills. Prior work skills are often as important as formal education in an individual’s qualification for employment. An injured worker with a history of unskilled or semi-skilled work in the past is unlikely to qualify for skilled work post-injury. A worker who has performed skilled work may be able to find other skilled work within his functional limitations, though this depends on the nature of the worker’s job skills. A key consideration is whether the worker’s skills are readily transferable to alternative employment. The transferability of skills from a prior occupation generally depends on the similarity of occupationally significant work activities among different jobs. The similarity can be measured by the level of similarity in the degree of skill involved, the tools and machines used, and the materials, products, processes or services involved.
• Vocational issues: Age. The 2012 Guidelines instruct that age “should be considered in the context of residual function, education, and work experience.” The court will presume that advancing age adversely impacts a person’s ability to obtain employment that involves work that is different from one’s prior work experience or requires developing new skills.
• Vocational issues: Literacy and English Proficiency. The ability to read, write, and speak English fluently is a requirement for many occupations in New York. Those who have limited or no ability to read, write or speak English fluently may still qualify to perform manual labor and other work that does not require interaction with the public or involvement with written documents. Workers who are illiterate or have limited or no English proficiency and, by virtue of their impairment, are rendered unable to perform manual work may have a significant loss of earning capacity.