As you are aware, the process by which claimants are classified with a permanent partial disability (PPD) has drastically changed in light of the 2007 amendments to the Workers’ Compensation Law. Most recently, the Board has been scheduling hearings in specially-designated “permanency parts” at the various hearing locations. The clear intent of the Board is to push cases towards classification. This development could potentially be quite beneficial to Workers’ Compensation Defense firms, although we need to be cognizant of the potential pitfalls that this new procedure may entail. To that end, we would like to submit this checklist to be mindful of how to best utilize the current state of affairs to our advantage.
- The vast majority of claims with hearings in the permanency part involve dates of accident after 3/13/2007. This means that we have the potential to impose PPD caps on cases in which we are currently paying at temporary rates- rates which do not count against the cap.
- We can use the Board’s current posture to our advantage by scheduling Insurance Medical Examination [IMEs] on all cases that are ripe for permanency. Technically, a case can be assessed for permanency after 6 months. This is an absolute minimum, and certain claims clearly require more than 6 months in order to reach a point at which permanency can be found.
- We must instruct our doctors to determine whether or not a claimant has reached Maximum Medical Improvement (MMI). In addition, the doctors MUST reference the new impairment guidelines, put in place in 2012. Although the ultimate permanency finding will be based on loss of wage earning capacity, which includes both medical impairment as well as other factors (such as age, skill set, work history, education, etc.), we are in a position to begin the process by securing our own permanency report.
- Once we obtain an IME that finds MMI and comments on permanent impairment in accordance with the Guidelines, we can file an RFA-2 (Request for Further Action) and ask the Board to address permanency. The Board will likely then direct the claimant to produce his or her own permanency report. If the claimant produces a permanency report, we are likely to be directed to produce our own such reports- even without a hearing having been held. Please note that the Board can also reopen claims to address permanency on its own accord – without a permanency report having been submitted from either side. In such circumstances, an administrative directive will be issued directing all parties to produce permanency reports in accordance with the Impairment Guidelines.
- All hearings in the permanency part are considered Expedited. Accordingly, requests for adjournments are very unlikely to be granted and failure to produce permanency reports may lead to a waiver and/or preclusion. Certainly, one or both doctors are permitted to opine that a claimant is not at MMI and the case is not ready for permanency, but the doctor will need to explain in detail why he or she reached that conclusion (this is likely to be a larger issue for claimants- who are more likely to be seeking to put off a permanency finding).
In conclusion, we believe that the new procedures being implemented by the Board can be used to our advantage in that they will provide us with an opportunity to aggressively push claims towards permanency. For all claims with dates of accident after 3/13/2007, this potentially means a cap on indemnity benefits.
Even in cases in which we face some obstacles to classification (such as evidence from claimant’s doctor that the claimant is not at MMI or claims of permanent total medical or industrial disabilities), we have a method by which to secure a fairly speedy resolution of these issues. This process can also be utilized to resolve claims under WCL Section 32 earlier, and under better terms than in the past, as claimants will be facing the real possibility of a cap on benefits via an expedited procedure. To be sure, this process is likely to undergo some changes and appeals of some of the more rigid aspects of this process are certain to be filed in the coming months. Nonetheless, if we are able to carefully avoid some of the potential pitfalls of these new procedures, we will be in an excellent position to take advantage of the caps on Permanent Partial Disability claims and limit our exposure in ways we were previously unable to do.
Our firm is happy to answer any questions regarding the new process as well as the inevitable changes that will be implemented over time. Jones Jones, LLC is in the unique position of having attorneys “on the ground” at hearing locations throughout New York City, Long Island, Westchester and the Hudson Valley, as well as maintaining significant contact with the State agencies in Albany. Please feel free to contact us at email@example.com regarding any general questions or issues related to any specific claim.
For more information, view our PowerPoint presentation providing a comprehensive look at New York’s LWEC (loss of wage-earning capacity) guidelines. Download a PDF version of this presentation from our dropbox.