State News : New York

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New York


  (716) 852-0003


Presented by

Susan R. Duffy, Esq.

Hamberger & Weiss

Impairment from Conditions Other than Spinal

} Asthma (Chapter 12.2)

} Traumatic Brain Injury (Chapter 15)

} Psychiatric (Chapter 17)

} Pain (Chapter 16)


} Impairment Due to Asthma

} Diagnostic work up must confirm diagnosis of asthma

} Compatible history of episodic symptoms

} Airflow obstruction that is at least partially reversible

} Alternative diagnoses are excluded

 Medical Impairment Class—Asthma (Table 12.2)

} Severity rankings include A, B, D, F, L, R, Z

} If claimant does not meet all the necessary requirements for any one medical impairment class, objective tests should be given greater weight than other criteria in determining the appropriate class


} Asthma Class 1(a): Severity Ranking “A”

} Intermittent Asthma Symptoms: not more than two times per weekor nighttime awakening not more than two times per month.

} And all of the following:

} No interference with normal activity

} Rescue medication for symptom control not more than two times per week

} Lung function normal FEV1 and FEV1/FVC between exacerbations

} FEV1 more than 80% predicted

} Exacerbations up to one time per year requiring systemic oral corticosteroids


} Asthma Class 1(b):Severity Rank “B”

} All of the above but exacerbations more than two times per year requiring steroids


} Asthma Class 3:Severity Ranking “L”

} Daily symptoms or nighttime awakening more than one time per week but not nightly

} And all of the following:

} Some limitation of normal activity due to symptoms

} Rescue medication needed not more than one time per day

} Lung function FEV1 between exacerbations of more than 60% but less than 80% predictedor FEV1/FVC reduced by less than 5% of predicted

} Exacerbations more than one time per year requiring steroids


} Asthma Class 5:Severity Ranking “Z”

} Persistent severe symptoms throughout the dayor nightly awakening due to symptoms

} And all of the following:

} Extremely limited in normal activities

} Rescue medication required several times per day

} Lung function: FEV1 between exacerbations less than 35% predicted

} Exacerbations more than one time per year


} Traumatic Brain Injury (Chapter 15)

} Intended for residuals resulting from organic injury to the brain.

} Distinction among classes reflects impact on activities of daily living and ability to function in the workplace.

} Episodic neurological disorders includes:

     Seizure disorder

     Vestibular disorder

     Neuro-ophthalmologic disorder or oculomotor



} Medical Impairment Brain Class 2: Severity Ranking “A” to “C”

} “Nuisance” level residuals with only minor impact on ADL

} Cognition – minimal cognitive or memory deficits do not materially impair ADL or work capability

} Language deficit no more than minimal

} Emotional disturbances, fatigue, lethargy minimal and and transient

} Episodic sleep disturbances are minimal

} Episodic neurological disorders must be completely controlled and not interfere with ADL


} Brain Class 4:Severity Rank “Q” to “S”

} Not completely independent in ADL, requires some type of supervision, assistance or guidance at times

} Cognition (Rancho Los Amigos Scale—Revised Level 7)

} Mild to moderate language deficit

} Emotional/behavioral disturbances or personality changes moderate, disproportionate to situation and consistently present

} Episodic sleep disturbances are moderate and interfere with ADL

} Episodic neurologic disorder that is not completely controlled and markedly interferes with ADL

Psychiatric Impairment (Default Guidelines – Table 17.3)

} Post-traumatic neurosis, post-traumatic stress disorder and other causally related psychiatric conditions

} Should have psychiatric and psychological evaluations and opinions as well as psychological and/or neuropsychological testing

} Impairment evaluation should include impact of the psychiatric impairment on functional ability, including ADL

} Document impact on ability to function in the workplace, including activities relevant to obtaining, performing and maintaining employment

} No “A” to “Z” ranking


} Pain (Chapter 16)

} Designed for individuals with extraordinary, severe, persistent painful conditions

} Extent to which pain symptoms can reasonably be accepted as consistent with objective medical evidence

} Examples include headache following severe head trauma or skull fracture, Chronic Regional Pain Syndrome (CRPS – Table S 16.2)


} Pain Impairment Rating: Yes or No

} Extraordinary, severe, persistent pain with all of the following:

     Reasonable medical basis for pain

     Consistency of pain over time and situation

     Consistency with anatomy and physiology

     A pain disability questionnaire score of at least 101

     No behavior that is inconsistent with pain symptoms


} Impairment of More Than One Body Part or System

} Not a mathematical combination of severity rankings

} Consider impact of each impairment on function and LWEC to determine cumulative effect

} Impact of impairments on ability to perform specific job functions of particular occupation


For further information, please contact:

Ronald Weiss, 585-262-6390,

Mark Hamberger, 716-852-5200,