When is a Permanent Partial
Disability really a Permanent Partial
Disability??
The 2007 New York State Workers’
Compensation Law Reforms and
PPDs
Westchester County Bar Association June 2010
Presented by
Brian M. Mittman
Markhoff & Mittman, PC
www.markhofflaw.com
1.914.946-1452
This may be dry but…
But its important for all sides
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History
• The Great Trade Off of almost 100 years ago
(employees giving up the right to sue and the
employer agreeing to obtain insurance so as
not to be sued) received its latest “update” in
2007 – the only piece of significant legislation
passed under the Spitzer Administration
• Another alleged Great Trade Off once again to
insure known benefits and costs to the parties
invovled
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The 2007 Great Trade Off
(in respect to PPDs)
• Employees – guaranteed increased weekly
benefits based on their wages and date of
accident; return to work programs; safety
valve if unable to return to work.
• Employers – guaranteed caps (limits) on
benefits (exposure) for indemnity payments
for individual employees suffering permanent
partial disabilities
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What is a Permanent Partial Disability
(and why does it matter)
• Permanent Partial Disability (PPD)
– At some time during the “life” of a workers
compensation claim that claim must resolve or end.
One of the main points on this time line is when a
determination can be made that an individual has a
permanent partial disability
– It is at this time that awards in some fashion will be
determined, if any, and the case is “resolved”
– The WCL defines in Section 15 the types of disability:
Permanent Total Disability; Permanent Partial
Disability; Temporary Partial Disability; Temporary
Total Disability
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The Permanent Partial Disability
• Type I The Schedule Loss of Use 15(3)(a) thru (v)
• Schedule Loss of Use – Section 15(3)(a)-(v) provide a way
to determine a final award of compensation for
impairments that are permanent in nature to specific
enumerated body parts such as facial disfigurements,
arms, legs, hands, feet, fingers, toes, eyes, hearing loss -these are considered permanent partial disabilities, but
given specific identified treatment
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The Permanent Partial Disability
• Type II: Other Cases (15(3)(w)){after March 13, 2007}
– In all other cases of PPD, the compensation shall be 66 2/3% of
the difference between the injured employee’s average weekly
wage and his or her wage-earning capacity thereafter in the
same employment or otherwise. (see Sec.15(5-a)) [the rate]
The
New
Stuff!
– All compensation payable under this paragraph shall not exceed
(i) five hundred twenty-five weeks in cases in which the loss of
wage-earning capacity is greater than ninety-five percent…and
(xii) two hundred twenty-five weeks in cases in which the loss of
wage-earning capacity is fifteen percent or less…” [the cap]
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What are the limits?
(The PPD schedule for non-scheduled
sites of injury)
•
If the work related accident or date of disablement occurred on or after March
13, 2007, benefits are payable for a maximum number of weeks as determined
by the claimant's loss of wage-earning capacity. The maximum number of weeks
is set forth in statute as follows:
525 weeks for loss of wage earning capacity of greater than 95%
500 weeks for loss of wage earning capacity of greater than 91% thru 95%
475 weeks for loss of wage earning capacity of greater than 86% thru 90%
450 weeks for loss of wage earning capacity of greater than 81% thru 85%
425 weeks for loss of wage earning capacity of greater than 76% thru 80%
400 weeks for loss of wage earning capacity of greater than 71% thru 75%
375 weeks for loss of wage earning capacity of greater than 61% thru 70%
350 weeks for loss of wage earning capacity of greater than 51% thru 60%
300 weeks for loss of wage earning capacity of greater than 41% thru 50%
275 weeks for loss of wage earning capacity of greater than 31% thru 40%
250 weeks for loss of wage earning capacity of greater than 16% thru 30%
225 weeks for loss of wage earning capacity of 15% or less
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WHOA! Uh, what’s that mean?
• How it was done pre-March 2007 –
Parties agree on a rate of compensation or Judge
decides the rate of compensation, claimant is
classified as an individual with a permanent partial
disability, payments continued to worker for life
subject to review for return to work, reduced
earnings, attachment to labor market, voluntary
withdrawal from labor market, etc.
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How to Determine PPD Post-March 13,
2007
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In General
• As a general rule, the Non-scheduled 15(3)(w)
PPD (whether old or new law) is a legal
determination supposedly made by the WC
Law Judge and incorporates the permanent
physical/mental impairment along with
consideration of other factors such as age,
ability, mental attitude and motivation – it is
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Buffalo Auto Recovery – The new road
map to PPD’s
• The WCB issued its first “kind-of” substantive
decision on Section 15(3)(v) in the Buffalo Auto
Recovery case. This decision went to great
lengths to try to map out how to go about finding
a PPD and a rate, but didn’t really give a lot of
guidance on the actual determination of loss of
wage earning capacity.
• It seems to tell us how to determine The Rate
and some things for The Cap.
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Buffalo Auto -The Highlights
• Medical Guidelines – use the 1996 Guidelines until
there are new guidelines --- and an update on that
issue…
• PPD finding impairment is a medical decision and
disability is a legal decision
• Judge must consider multiple factors beyond just the
impairment to make proper determination on the loss
of wage earning capacity (Now a Two Prong Test)
• Ignores the word “shall”
• Once Fixed the ultimate number of weeks does not
change, but the rate can!
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Loss of Wage Earning Capacity
• Never defined in Statute and Buffalo Auto
tries to define it by noting it must be the
opposite of Wage Earning Capacity
• Is it really opposite of wage earning capacity
Sec. 15(5-a)
• What happens if your capacity changes
• What are the factors to consider, is it like
Social Security Disability and so forth? Age,
education, motivation, other factors?
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Best Practices
• Approach PPDs as a two prong – the medical
(impairment) portion and the legal (disability)
portion
– Consider factors, obtain a vocational expert or
functional capacity expert?
– Testimony of the claimant
– Job description and description of limitations
– This holds true for either side of the equation –
claimant or employer!
– To wait or not under the Medical Guidelines?
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Settlement
•
•
•
•
Does this encourage parties to settle?
Medical stays open, isn’t that the real cost?
Return to Work task – the One Stop Approach
A way to reopen?
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Resources
• www.wcb.state.ny.us
• www.markhofflaw.com
• WCL Section 15
• Presented by:
Brian M. Mittman, Esq.
Markhoff & Mittman, PC
14 Mamaroneck Avenue, Suite 201
White Plains, NY 10601
(914)946-1452
www.markhofflaw.com
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Markhoff & Mittman PC © 2010