The Workers’ Comp Board was directed to consult with those who represent labor, business, medical providers, insurance carriers, as well as self-insured employers surrounding the revisions to permanency impairment guidelines. This direction was taken in order to adopt revised guidelines for the evaluation of medical impairment and determination of permanency. As mandated by law, these guidelines need to reflect the advancements of modern medicine which enhances and encourages healing and results in a better outcome. These revised permanency guidelines supersede the Board’s 2012 Impairment Guidelines which concern the medical evaluation of injuries amenable to a schedule loss of use, as well as any other provision of the 2012 Impairment Guidelines that do not show consistencies with the updated 2018 Guidelines.
The 2018 Workers’ Compensation Guidelines for Determining Impairment includes, but is not limited to, guidelines pertaining to injuries surrounding Upper Extremities, Knee and Tibia, Lower Extremities, Central Nervous System, and the Visual System.
As of February 6, 2020, the 2018 Workers’ Compensation Guidelines for Determining Impairment are the most up to date guidelines provided by the New York Workers’ Compensation Board.
Types of Disabilities Under Workers’ Compensation
The Workers’ Compensation Law has established the following forms of workers’ comp cases:
- Temporary Total Disability
- Permanent Total Disability
- Temporary Partial Disability
- Permanent Partial Disability
Evaluation determining permanent disability occurs when there is a permanent impairment remaining after the claimant reaches the maximum medical improvement (MMI). The guidelines were created to determine impairment for permanent disabilities.
Maximum Medical Improvement
The finding of MMI is based on a medical judgment where (a) the injured employee has reached a state where his or her condition cannot be improved or (b) treatment has plateaued and further improvement is not reasonably expected. Palliative or symptomatic treatment does not preclude a finding of MMI. Cases where surgery or fractures are not involved, MMI cannot be determined prior to 6 months from the date of injury or disablement – unless stated and agreed to by all parties involved. If a worker suffers from multiple injuries, all of the injuries must heal as much as possible before the worker can reach the MMI point.
Those who have reached Maximum Medical Improvement may be able to return to work and perform the same responsibilities prior to their injury. They may also be able to return to work but with modified responsibilities that are in line with their physical capabilities.
Examining Medical Providers Role in Workers’ Compensation Cases
Under obligation to the Board, medical providers are required to provide the Board, and the parties involved, their best professional opinion with regards to the claimant’s medical condition, degree of impairment, as well as functional abilities. The Guidelines provide detailed criteria to determine the severity of medical impairment, with a greater weight given to objective findings. It is the responsibility of the medical provider to submit any medical evidence to the Board that will be taken into consideration when making a legal determination surrounding disability.
Medical providers are not to infer findings or manifestations which were not drawn from the physical examination or test reports. They are to look at the objective findings of the physical examination and data contained within the patient’s medical records. This process fosters consistency, predictability, and inter-rater reliability to determine impairment.
MMI Status can change if an injured workers’ doctor recommends surgery or other curative treatment or medical procedures in the future. Treatment is determined to be curative if a doctor begins the treatment with the reasonable expectation that it will result in lasting improvement for the worker.
Schedule Awards
A schedule loss of use award is not given for an injury sustained but rather for the residual permanent physical and functional impairments. The final adjustment of a claim by a schedule award is required to comply with medical requirements as described by the 2018 Workers’ Compensation Guidelines for Determining Impairment.
When a doctor determines that the injured employee has reached MMI, he or she will examine them for any permanent physical or cognitive damage and write a Maximum Medical Improvement report. The injury will then be assigned an impairment rating. This impairment rating impacts the amount of benefits the worker is able to receive.
Non-Scheduled Awards
Non-schedule is a permanent disability involving a part of the body or condition that is not covered by an SLU award (e.g. spine, pelvis, head, lungs, heart, brain, etc.). Occupational diseases such as repetitive stress injuries and Mesothelioma are also non-scheduled awards.
Non-schedule benefits are based on the employee’s permanent loss of earning capacity. If an injured worker is found to be permanently totally disabled, they have a 100% loss of wage earning capacity. When determining loss of wage earning capacity, the Workers’ Compensation Board will review the injured worker’s medical records to see what permanent physical damage was caused by the work-related injury. They will also look into the vocational background of the injured worker and consider factors such as age, level of education, specialized training, military service, and work history. They will also consider the injured worker’s ability to read, write and speak English.
