Workers’ compensation provides an avenue for employees to collect for an injury suffered or a disease contracted in the workplace without first having to prove their employer was negligent. In turn, employers may not turn the tables and claim the injury was due to the worker’s negligence.
Although there are real benefits to the system, there are also downsides. There are strict rules regarding reporting the injury, plus complicated forms to fill out and requirements for detailed medical examinations and record keeping. Special provisions are provided for those who have a partial or permanent impairment.
For many years, New York State has published Workers’ Compensation Impairment Guidelines so that those injured, and their attorneys, know what documentation is needed to prove the worker suffers from a permanent impairment. As of January 1, 2018, new Permanency Impairment Guidelines are used that workers’ must follow in order to qualify and collect their workers’ compensation award.
Previously, we discussed how to collect for permanent impairment under the 2012 Guidelines. That contains important general information that, coupled with the knowledge of the new changes that have been made, assist you in knowing some of the requirements for proving permanent impairment.
In order to better understand the Guidelines and how the workers’ compensation board determines appropriate compensation, two terms are important to understand: permanent impairment and schedule of loss.
What is a Permanent Impairment?
According to the new Permanent Impairment Guidelines, a Permanent Impairment is “a purely medical determination made by a medical professional, and is defined as any anatomic or functional abnormality or loss.” Whether or not a worker has suffered permanent impairment is determined by a “competent” evaluation and “accurate” objective assessment of function.
Schedule of Loss
A Schedule of Loss for a permanent impairment, according to the new guidelines, is an amount paid “not for an injury sustained, but for the residual permanent physical and functional impairments.”
Changes to New York State Compensation Permanent Impairment Guidelines Hurt Workers
If a worker can prove a permanent impairment, the amount of the award for a specific type of injury has essentially not changed. But, the proof required of the worker to support his or her claim has been made more comprehensive and difficult. Some of the changes that may negatively impact workers who file a compensation claim involve:
- Greater emphasis on objective evidence. Medical providers are instructed that they are not to “infer findings or manifestations that are not drawn from physical examination or test reports.” Reports must be based on physical examination and objective data contained in the medical records of the patient. Subjective evidence, which is based on reports of the patient and observations of the medical care provider, are not given much weight. For example, no longer will a claimant’s response to “On a scale of 1 to 10, how severe is your pain” be given much weight. That is considered subjective evidence that may not even be considered.
- Medical providers must provide more detailed reports. There are extra forms to fill out with more detailed questions that require more detailed answers and attachments of test results and X-rays that are required. It may be more difficult for medical providers to obtain full compensation for the work they do in order to provide the more detailed medical reports.
- Guidelines do not reflect advances in modern medicine. The Director of Government Affairs for the Business Council of New York State gave testimony in front of the NYS Assembly Committee on Labor about the concerns expressed by the Business Council. One of the Council’s primary concerns is that the changes “illustrate that major advances in modern medicine are not fully taken into account.”
- No consideration of the opioid problem. Another concern of the Business Council is that there is no effort “to curb the opioid addiction national emergency.”
- Some benefits have been “slashed.” The New York Workers’ Compensation Alliance has provided a detailed list of various injuries, for example, loss of a thumb, or loss of the use of a leg. The analysis notes in each case how the benefits have been reduced and how that will negatively impact the injured worker.
- The Schedule of Loss has made changes that eliminated some losses. One example of this is the schedule of loss benefit for impairment due to a rotator cuff injury has been eliminated.
Since the Guidelines have only been in effect for a short time, it is too soon to know exactly how many more hoops workers will have to jump through in order to get their permanent impairment awards. If you filed your claim before January 1, 2018, depending on its status at that time will make a difference in whether the new Guidelines affect your award. For claims filed after January 2, 2018, it is a sure thing that your claim will be evaluated under the new Guidelines.
If you have a claim for a permanent impairment, contact the office of Paul Giannetti, attorney at law. He is an experienced workers’ compensation attorney and offers you a free consultation. Call 866-868-2960 or contact him online.