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

This may be dry but… But its important for all sides Markhoff & Mittman PC © 2010

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 Markhoff & Mittman PC © 2010

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 Markhoff & Mittman PC © 2010

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 Markhoff & Mittman PC © 2010

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 Markhoff & Mittman PC © 2010

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 employees average weekly wage and his or her wage-earning capacity thereafter in the same employment or otherwise. (see Sec.15(5-a)) [the rate] – 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] The New Stuff! Markhoff & Mittman PC © 2010

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 Markhoff & Mittman PC © 2010

WHOA! Uh, whats 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. Markhoff & Mittman PC © 2010

How to Determine PPD Post-March 13, Markhoff & Mittman PC © 2010

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 Markhoff & Mittman PC © 2010

Buffalo Auto Recovery – The new road map to PPDs 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 didnt 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. Markhoff & Mittman PC © 2010

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! Markhoff & Mittman PC © 2010

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? Markhoff & Mittman PC © 2010

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? Markhoff & Mittman PC © 2010

Settlement Does this encourage parties to settle? Medical stays open, isnt that the real cost? Return to Work task – the One Stop Approach A way to reopen? Markhoff & Mittman PC © 2010

Resources WCL Section 15 Presented by: Brian M. Mittman, Esq. Markhoff & Mittman, PC 14 Mamaroneck Avenue, Suite 201 White Plains, NY (914) Markhoff & Mittman PC © 2010