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Navigating the 2012 NYS Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (NYS Guidelines)

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workers compensation

According to the NYS Guidelines, “In 2007, workers’ compensation reform legislation established duration limitations on non-schedule permanent partial disability awards based on an injured worker’s loss of wage-earning capacity (LWEC). In 2008, the Workers’ Compensation Reform Task Force began developing guidelines for evaluating loss of wage earning capacity.” Their proposals are now part of the current medical impairment guidelines which replaces prior guidelines for non-schedule impairments of out-of work claimants. The NYS Guidelines now includes new sections for functional evaluation and the evaluation of loss of wage earning capacity.

Permanent partial disability is one type of classification allowed by law in worker’ compensation cases. Evaluation of permanent disability occurs when there is a permanent impairment remaining after the claimant has reached maximum medical improvement (MMI). MMI cannot be determined prior to 6 months from the date of injury or disablement, unless otherwise agreed to by the parties.

A finding of MMI is based on a medical judgment that the claimant has recovered from the work injury to the greatest extent that is expected and no further improvement in their condition is reasonably expected – but what if the claimant continues to recover beyond expectations? In addition, as we have frequently documented, many claimants will fraudulently exaggerate or even lie about medical conditions in order to receive compensation. While not every claimant is dishonest, the risk of loss due to fraud is extremely high because PPD awards can be paid out for years or even the lifetime of the claimant.

Examining health providers have a major responsibility in the determination process as they are expected to adhere to the Guidelines and provide the Board their best professional opinion based on the claimant’s medical condition, degree of impairment, and functional abilities. They are expected to review the Guidelines and medical records, perform a thorough history and physical examination and report the findings; state the work related medical diagnosis; identify the affected body part or system; follow the recommendations to establish a level of impairment, and evaluate the impact of the impairment on the claimant’s functional and exertional abilities.

Their functional evaluation is expected to include whether it was an at-injury job and document whether the claimant can perform the job based on the “best information” available to him or her. The Guideline document also states they “should” request a job description. The physician is tasked with deciding the functional ability of the claimant and their exertional abilities for lifting, pushing or pulling objects. (Something that covert surveillance can easily uncover if there is a false claim.)

Given the comprehensive nature of what the examining health providers are expected to report, it is inevitable that some details may occasionally fall through the cracks. Investigations including surveillance, background screenings and canvassing can ensure the information reported is 100% accurate and if not, properly documented evidence can provide the necessary ammunition to have a PPD award judgment rescinded.

In addition to medical impairment and functional ability/loss (based on reports provided by physicians), non-schedule permanent partial disability for those who are not currently working is also based on non-medical/vocational factors such as education, skills, age, literacy etc. This information is provided by the parties as part of the evaluation for loss of wage earning capacity. The amount of the award can vary greatly depending on the claimant’s education and training, skill level, age, literacy and English proficiency. With so much at stake, it is vital to verify that the information is accurate and truthful.

PPD awards are calculated by determining the average pay amount for a position and dividing it by the Average Weekly Wage (AWW) that the claimant actually earned. The resulting percentage is the Wage Earning Capacity. When this percentage is subtracted from 100%, the difference represents the Loss of Wage Earning Capacity (LWEC). The LWEC % corresponds to the number of weeks of benefits the claimant is entitled to on the Maximum Weeks of PPD Benefits Chart (anywhere from 4 years to 10 years for Permanent Partial Disability and lifetime for Permanent Total Disability.) The dollar amount that is paid weekly is calculated by taking two-thirds of the difference between the average pay amount and the original Average Weekly Wage.

Employers can’t afford to wonder if claimants are being honest or if medical practitioners are complying with the necessary due diligence to provide accurate information. Alliance has the resources to provide employment and education verifications, professional license searches, social networking searches, canvassing procedures, and all types of surveillance operations. We have a proven track record of rescinding fraudulent compensation classifications and can use these skills when it comes to determining the validity of PPD Award Schedules.

Mitigate your loss potential with Alliance surveillance and insurance fraud investigations. For more information email sales@allianceriskgroup.com.

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