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Overview New process for Non-Schedule PPD cases.

An Overview of New York Workers’ Compensation Permanent Impairment and Loss of Wage Earning Capacity Guidelines Presented by Melissa A. Day, Esq., The Law Offices of Melissa A. Day, PLLC Friday, March 15, 2013.

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Overview New process for Non-Schedule PPD cases.

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  1. An Overview of New York Workers’ Compensation Permanent Impairment and Loss of Wage Earning Capacity GuidelinesPresented by Melissa A. Day, Esq.,The Law Offices of Melissa A. Day, PLLCFriday, March 15, 2013

  2. New York State Guidelines for Determining Permanent Impairment andLoss of Wage Earning CapacityJanuary 2012

  3. Overview • New process for Non-Schedule PPD cases. • Shift away from medical impairment as sole component in determining percentage disability. • Determination of SLUs remains the same as under 1996 Guidelines. • Ultimate Determination of Loss of Wage Earning Capacity (LWEC) left to litigation and negotiation • Only for evaluation of permanent disabilities. • Buffalo Auto Recovery still (mostly) good law

  4. Effective Date • January 1, 2012 • EXCEPT - For claims that already have at least one medical opinion finding a permanent impairment with a rating based on the 1996 Guidelines on or before January 1, 2012, the Board will determine the claimant's degree of permanent disability using the 1996 Guidelines.

  5. Conditions Addressed • Schedule Loss of Use • Non-Schedule Permanent Disabilities

  6. Schedule Loss of Use • Unchanged from 1996 Guidelines • Impairment of extremities • Loss of vision • Loss of hearing • Facial disfigurement • Chapters 2 – 8.

  7. Non-Schedule Permanent Disability • The rest of the Permanent Impairment Guidelines “PILWECG” (Chapters 9-17) are devoted to non-schedule permanent disability and are largely based on the work of the Insurance Department's Workers' Compensation Reform Task Force and Advisory Committee. • Much of this part of the guidelines provide information for medical professionals on how to evaluate medical impairment and physical function. • There is little to no guidance on how to determine loss of wage earning capacity because the Task Force could not come to a consensus on a system for determining LWEC. • “It is expected that attorneys, claims professionals, and others will utilize these new standards in an attempt to evaluate and settle claims.” See Board Subject # 046-472.

  8. Maximum Medical Improvement The starting point for determining both schedule and non-schedule permanent disabilities is the finding by a medical professional that the injured worker has reached maximum medical improvement (MMI) and has a causally related permanent impairment.

  9. Maximum Medical Improvement (MMI) • Medical judgment that • the claimant has recovered from the work injury to the greatest extent that is expected and • 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. • The treating physician should perform an impairment and functional assessment when the claimant has reached MMI and has a permanent impairment or when directed by the Board to provide such an assessment. PILWECG at p. 8.

  10. Buffalo Auto Recovery • Guidelines do not overrule Buffalo Auto Recovery. • Under Buffalo Auto Recovery Services, 2010 N.Y. Wrk. Comp. 80703905, LWEC is determined based upon the preponderance of the evidence concerning the nature and degree of the work-related permanent impairment, work restrictions, claimant's age, and any other relevant factors, with wage earning capacity as its inverse.

  11. Longley Jones • Longley Jones Management Corp., 2012 N.Y. Wrk. Comp. 6070 4882 (February 8, 2012) decision overrules part of Buffalo Auto Recovery. • RTW wages are just one of the factors taken into account in determining LWEC. • The case will likely be going to the Full Board given that there was a dissenting commissioner. • Additionally, in at least one Board Panel Decision, the Board continues to find that actual wages determine the LWEC. SeeConcord Management Ltd., 2012 N.Y. Wrk. Comp. 4080 6411 (May 2, 2012).

  12. Three Steps to LWEC • A medical determination of permanent medical impairment; • A medical assessment of functional abilities/limitations; and, • A judicial (legal) determination of LWEC using the impairment, functional, and vocational (non-medical) evidence.

  13. Role of the Examining Provider • Physicians should not infer findings or manifestations that are not drawn from the physical examination or test reports, but rather physicians should look to the objective findings of the physical examination and data as contained within the medical records of the patient.

  14. Role of the Examining Provider (cont.) • Review the Guidelines • Review the medical records. • Perform a thorough history and physical examination and recount the relevant medical history, examination findings and appropriate test results. • State the work related medical diagnosis(es) based upon the relevant medical history, examination and test results. • Identify the affected body part or system, include Chapter and Table No. for non-schedule disabilities; (for body parts not covered by the Guidelines, see Chapter 17). • Follow the recommendations to establish a level of impairment. • For a non-schedule disability, evaluate the impact of the impairment(s) on claimant’s functional and exertional abilities. See Medical Impairment and Functional Assessment Guidelines in Chapter 9.2.

  15. Permanent Medical Impairment • Definition of Impairment: A deviation, loss, or loss of use of any body structure or function in an individual with a health condition, disorder, or disease as defined in the 2012 Impairment Tables. • Impairment is a purely medical determination made by a medical professional, and is defined as any anatomic or functional abnormality or loss. • Once physician determines that there is a PMI, its severity must be determined.

  16. Severity of the PMI • Each category of impairment is assigned a severity ranking from A to Z. • Impairment severity is based on the estimated impact of the condition on overall health and bodily function. • The physician’s role is to objectively assign the category of impairment that best fits the claimant at the time of MMI. • A medical impairment ranking is not to be used as a direct translation to loss of wage earning capacity • BUT, in general, more severe impairments lead to greater losses of work opportunity and reduced earning capacities. (Chapter 9.3).

  17. The Crosswalk • Chapter 18 (“The Crosswalk”) of the 2012 Guidelines translates each impairment's letter ranking into a 1-6 severity ranking to allow comparisons across different types of impairments.

  18. Crosswalk (Ch. 18) • Letter rankings can be translated to a numerical severity ranking: 0 – 6 and total. • PILWECG say that “In principle, the severity rankings for the Classes of one chapter should not be compared to the rankings in other Chapters.” • There may be a temptation to equate these numerical rankings to functional abilities/loss assessments or LWEC.

  19. Categories of Impairments • Spine and Pelvis (Ch. 11) • Respiratory Conditions (Ch. 12) • Cardiovascular (Ch. 13) • Skin (Ch. 14) • Brain (Ch. 15) • Pain (Ch. 16)

  20. Other Injuries and Occupational Diseases (Ch. 17) • Conditions which are normally schedulable and other occupational diseases • Surgical Disorders – Hernia and Organ Excision • Vascular Disease of the Extremities • Work Related Post-Traumatic Neurosis, PTSD and other Causally Related Psychiatric Conditions

  21. Medical Impairment – How Measured Example 1: Claimant sustained a low back injury after a chair she was sitting on at work collapsed beneath her. She landed on her buttocks. After physical therapy and medications, her symptoms improved. She now has intermittent pain across her low back with radiation into the back of her legs, but not her feet. Her neurological exam is normal.

  22. Medical Impairment – How Measured Example 1 (continued): • Non surgically treated soft tissue spine condition - use Table 11.1 • Claimant meets "Class 2" because of persistence of symptoms without objective clinical findings or correlative imaging findings. • "Class 2" for lumbar spine on Table 11.1 = "A" Severity Ranking (least severe)

  23. Medical Impairment – How Measured Example 2: Claimant lifted a 80lb. concrete slab, resulting in a back injury. His MRI showed a L4-5 herniated disc with right L5 nerve root displacement. He failed conservative treatment, leading to a L4-5 surgical discectomy. On exam he has: 1) absent right ankle jerk; 2) straight leg raise with radicular pain in L5 pattern at 30 degrees; and 3) leg atrophy of 2cm, comparing right to left.

  24. Medical Impairment – How Measured Example 2 (continued): • Surgically treated spine condition – use Table 11.2. • Claimant meets "Class 4" because of surgical intervention with residual symptoms and additional objective findings. • "Class 4" for lumbar spine on Table 11.2 = "D" through "J" Severity Ranking. Need to refer to supplemental tables to determine exact severity ranking.

  25. Medical Impairment – How Measured Supplemental Tables Example • Table S11.4: Radiculopathy Criteria: add up the points from claimant's objective testing. • After obtaining point total, refer to Table S11.7 for exact letter Severity Ranking in class. • Claimant has muscle atrophy, demonstrated by bilateral circumferential measurement - 6 points • Claimant has absent right ankle jerk - 6 points • Claimant has positive SLR - 4 points • Total = 16 points • This translates to an "E" severity ranking.

  26. Medical Impairment Crosswalk • Example 1: "A" Severity Ranking = "1" (least severe) on Crosswalk • Example 2: "E" Severity Ranking - "2" on Crosswalk • Even though claimant in Example 2 had more significant injury, treatment, and residual problems, his ranking is only one level higher than Claimant 1 on the Severity Crosswalk. • Would probably be "mild" and "marked" under 1996 Guidelines.

  27. Step 2 – Evaluation of Functional Capacity • "The medical assessment of the injured worker’s residual functional abilities and losses is a key component in a judge's determination of loss of wage earning capacity." (2012 Guidelines) • Physician to document claimant's functional capabilities on new C-4.3 Form. • Physician to obtain job description of claimant's pre-injury employment and discuss with claimant. • If alleging claimant can return to pre-injury job, employer to provide job description to physician.

  28. Functional Impairment • Determine if Claimant is able to perform his or her “At-injury job” • Measure the claimant’s Functional Abilities/Restrictions • Rate the Claimant’s Exertional Abilities

  29. At-Injury Job • Physician should first document whether or not the injured worker is capable of performing the work activities of the at-injury job. • To understand the major work requirements of the at-injury job, the physician should request a job description or other similar documentation from the employer and speak with the claimant about the job requirements. • If the employer maintains that the injured worker is capable of performing the at-injury job, the employer must provide appropriate detail about the physical job requirements. • The physician should document whether the claimant can perform the at-injury job requirements based on the best information available to the physician about the job requirements at the time of evaluation.

  30. Functional Abilities/Restrictions • On examination, the physician should measurethe 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.

  31. Evaluation of Functional Capacity C-4.3 Form 1) Describe the claimant's residual functional capabilities for any work. 2) Determine the claimant's exertional ability. 3) Describe other relevant medical considerations (such as the use of pain medications). 4) Determine whether the claimant could perform his or her at injury work activities injury with restrictions. 5) Describe whether the claimant has had any injury or illness since the date of injury that impacts residual functional capacity. 6) State whether the physician has discussed the claimant's return to work or limitations with the claimant or claimant's employer. 7) Determine whether the claimant would benefit from vocational rehabilitation.

  32. Exertional Abilities • 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 • Light • Medium • Heavy • Very Heavy

  33. 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.

  34. 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 negligible. 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.

  35. 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.

  36. 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.

  37. 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.

  38. Miscellaneous Considerations • Psychiatric limitations: For claims involving an established, permanent psychiatric impairment, the treating provider should document the impact of the psychiatric impairment on the claimant’s ability to function in the workplace, including activities that are relevant to obtaining, performing and maintaining employment (e.g. personal hygiene and grooming, interpersonal relations, etc.) • Other limitations: The physician should also document other limitations caused by the permanent impairment(s) that impact the claimant’s ability to function in the workplace. This includes any limitations caused by the medical condition or treatment, including prescription medication, that impact the claimant’s ability to work.

  39. Multiple Claims or Conditions • Not uncommon for an injured worker to have a permanent impairment of more than one body part or system. • PILWECG do not provide for a mathematical combination of medical impairments. • The impact of each impairment on function and wage earning capacity to determine their cumulative effect.

  40. Non-Causally Related Conditions • Guidelines are completely silent on the effect of non-occupational medical conditions which may affect earning capacity. • The medical impairment and functional loss evaluations and findings are limited to the occupational conditions and affected injury sites. • Defending LWEC claims may require demonstrating that disability is caused by non-occupational medical conditions.

  41. FORM C-4.3 • The results of the impairment and functional assessments should be recorded on the Doctor’s Report of MMI/Permanent Impairment which is a new WCB form, Form C-4.3.

  42. Loss of Wage Earning Capacity • LWEC is a legal determination to be made in the first instance by a law judge after considering the relevant medical factors (impairment & functional ability/loss) and relevant vocational factors such as education, age, job skills and English language proficiency. • Medical Impairment • Functional Loss • Vocational Factors

  43. Vocational (Non-Medical) Factors • Education and Training • Skills • Age • Literacy and Language Proficiency • Other “Fuzzy” Factors

  44. Education and Training • Plays a significant role in a worker’s ability to qualify for different occupations and level of income. • 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. • It is important to evaluate the degree that educational achievement buffers or intensifies the impact of a medical impairment on a worker’s earning capacity. • For example, an injured worker whose education and training qualifies him to perform work that, despite his disability, he is physically capable of doing, and that pays similarly to his pre-injury work, will have a smaller LWEC. • In contrast, an injured worker whose injury prevents him from doing his former occupation and does not have the education or training to perform any comparably paid work will have a higher LWEC.

  45. Skills • Often as important as formal education in an individual’s qualification for employment. • Someone who has only performed 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

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