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New York


  (716) 852-0003

2012 New York Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity

Presented by

Joseph P. DeCoursey, Esq.

Hamberger & Weiss



     New process for Non-Schedule PPD cases.

     Shift away from medical impairment as sole component in determining percentage disability.

     Determination of SLUs remains the same as under 1996 Guidelines.

     Ultimate Determination of Loss of Wage Earning Capacity (LWEC) left to litigation and negotiation

     Only for evaluation ofpermanent disabilities.

     Buffalo Auto Recovery still good law.


} Effective Date of 2012 Guidelines

     January 1, 2012

     EXCEPT - for claims that already have at least one medical opinion finding a permanent impairment with a rating based on the 1996 Guidelines on or before January 1, 2012, the Board will determine the claimant's degree of permanent disability using the 1996 Guidelines.


} Maximum Medical Improvement

     Process doesn't start until claimant reaches MMI.


           "a medical judgment that (a) the claimant has recovered from the work related injury to the greatest extent that is expected and (b) no further improvement in his/her condition is reasonably expected. The need for palliative care or symptomatic treatment does not preclude a finding of MMI. In cases that do not involve surgery or fractures, MMI cannot be determined prior to 6 months from the date of injury or disablement, unless otherwise agreed to by the parties."


} Effect of LWEC on Benefit Cap

∙The percentage loss of wage earning capacity (LWEC) determines both the benefit rate and the duration of benefits in PPD classification cases.

∙ For non-working claimants at the time of classification, the %LWEC is determined by the process described in this presentation.

∙ For working claimants at the time of classification, the %LWEC is determined by a reduced earnings calculation. Buffalo Auto.


} The 3 Components of LWEC

  1.    Medical Impairment

2.        Evaluation of Residual Functional Capacity

3.        Evaluation of Vocational Factors



} Medical Impairment

     Largest topic covered by 2012 Guidelines

     Impairments to different body parts are divided into categories.

     Physician must objectively assign the category of impairment a severity ranking from A to Z that best fits the claimant at the time of MMI.

     Severity Ranking is based on the estimated impact of the condition on the claimant's overall health and bodily function.

     Chapter 18 (“The Crosswalk”) of the 2012 Guidelines translates each impairment's letter ranking into a 1-6 severity ranking to allow comparisons across different types of impairments.

     Medical impairment cannot be directly translated into loss of wage earning capacity.

     BUT, in general, more severe impairments lead to greater losses of work opportunity and reduced earning capacities. (Chapter 9.3).


} Medical Impairment – How measured

           Example 1:

 Claimant sustained a low back injury after a chair she was sitting on at work collapsed beneath her. She landed on her buttocks. After physical therapy and medications, her symptoms improved. She now has intermittent pain across her low back with radiation into the back of her legs, but not her feet. Her neurological exam is normal.


} Medical Impairment –How measured

Example 1

     Non surgically treated soft tissue spine condition - use Table 11.1

     Claimant meets "Class 2" because of persistence of symptoms without objective clinical findings or correlative imaging findings.

     "Class 2" for lumbar spine on Table 11.1 = "A" Severity Ranking (least severe)


} Medical Impairment –How measured

           Example 2:

 Claimant lifted a 80lb. concrete slab, resulting in a back injury. His MRI showed a L4-5 herniated disc with right L5 nerve root displacement. He failed conservative treatment, leading to a L4-5 surgical discectomy. On exam he has: 1) absent right ankle jerk; 2) straight leg raise with radicular pain in L5 pattern at 30 degrees; and 3) leg atrophy of 2cm, comparing right to left.






} Medical Impairment –How measured

Example 2

     Surgically treated spine condition - use Table 11.2.

     Claimant meets "Class 4" because of surgical intervention with residual symptoms and additional objective findings.

     "Class 4" for lumbar spine on Table 11.2 = "D" through "J" Severity Ranking. Need to refer to supplemental tables to determine exact severity ranking.

           Table S11.4: Radiculopathy Criteria: add up the points from claimant's objective testing. After obtaining point total, refer to Table S11.7 for exact letter Severity Ranking in class.

     Claimant has muscle atrophy, demonstrated by bilateral circumferential measurement -6 points

     Claimant has absent right ankle jerk -6 points

     Claimant has positive SLR -4 points

     Total =16 points

     This translates to an "E" severity ranking.

} Medical Impairment - Crosswalk

     Example 1: "A" Severity Ranking = "1" (least severe) on Crosswalk

     Example 2: "E" Severity Ranking - "2" on Crosswalk

     Even though claimant in Example 2 had more significant injury, treatment, and residual problems, his ranking is only one level higher than Claimant 1 on the Severity Crosswalk.

     Would probably be "mild" and "marked" under 1996 Guidelines.

     Emphasize the Crosswalk!


} Evaluation of Functional Capacity

           "The medical assessment of the injured worker’s residual functional abilities and losses is akey component in a judge's determination of loss of wage earning capacity." (2012Guidelines)

     Physician to document claimant's functional capabilities on new C-4.3 Form.

     Physician to obtain job description of claimant's pre-injury employment and discuss with claimant.

     If alleging claimant can return to pre-injury job, employer to provide job description to physician.


} Evaluation of Functional Capacity

C-4.3 Form

1) Describe the claimant's residual functional capabilities for any work.

2) Determine the claimant's exertional ability.

3) Describe other relevant medical considerations (such as the use of pain medications).

4) Determine whether the claimant could perform his or her at-injury work activities with restrictions.

5) Describe whether the claimant has had any injury or illness since the date of injury that impacts residual functional capacity.

6) State whether the physician has discussed the claimant's return to work or limitations with the claimant or claimant's employer.

7) Determine whether the claimant would benefit from vocational rehabilitation.

} Evaluation of Functional Capacity

     The physician shouldmeasure the claimant's performance and restrictions across the range of functional abilities listed on the C-4.3 form.

     Section F of Form C-4.3 asks the physician to rate the claimant's exertional ability as one of six categories from the Social Security Dictionary of Occupational Titles.

     Categories range from "Less than Sedentary Work" to "Very Heavy Work“.

} Evaluation of Vocational Factors

     Factors to consider include: education, training, skills, age, literacy, English proficiency, and "other considerations“.

     Another form! - VDF-1.

     VDF-1 asks about education, work experience, literacy and English language proficiency.

     No comment on use of vocational experts by Board or carriers.


VDF-1 Form

  1. Age
  2. Education/Training
  3. Past relevant work (limited to job titles within last 10 years)
  4. Language and literacy (self-described as "well," "limited," or "none"

} LWEC Hearing Process

1. Maximum Medical Improvement

    • When one opinion received, Board issues EC-81.8 to other party to respond and claimant directed to complete VDF-1 form.
    • If there is a dispute, litigate MMI with decision in 45 days.
    • If no MMI, process ends (for now).

} LWEC Hearing Process (con't)

2. Severity and Functional Loss

    • After MMI found, Board issues order scheduling a hearing in 60 days for testimony on vocational factors.
    • Parties to take testimony or stipulate to severity ranking and functional loss in the interim.

} LWEC Hearing Process (con't)

3. Vocational Factors

    • Hearing to be held for lay testimonyand summations.
    • No indication that Board will hear testimony or review evidence from vocational experts.

4. Conclusion

    • WCLJ to rule on all issues.
    • No formula or indication on how WCLJ is to weigh the 3 elements of LWEC.



For more information, please contact:

Ronald Weiss, 585-262-6390,

Mark Hamberger, 716-852-5200,