The 2007 changes in permanent partial disability (PPD) claims will soon be felt as “caps” on awards come due. The basic change is that there will be, for the first time, lifetime limits to the amount of compensation for permanent partial disability.
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“Avoid the 3 Primary Reasons Injured Workers’ Hire Attorneys”
The precise details of medical guidelines, as well as interpretation of the statute, have yet to be worked out but the following strategies can be anticipated to avoid having awards “capped.”
1. Use of the “Odd Lot Doctrine.” This is a Benjamin Cardozo decision from the 1920s which said the definition of total disability is the inability to perform a FULL TIME job which existed in the economy near the worker and for which he/she is suited. The decision, Jordan v. Decorative Co., has been all but forgotten for many decades but it is certain it will be rediscovered and heavily used in the coming years.
2. “Step function” disputes. Benefits increase suddenly at certain percentage ratings for disability. Example: 49.9990% pays $15,000 less than a 50% disability at maximum rate. Arguments at the discontinuity points will be frequent.
3. “Chopping” periods of disability. The Board grants attorney fees of 15% of awards for PAST periods, but only a small fee for awards continuing into the future. It can be anticipated, from past behavior, that awards will be halted at the day of the hearing so that, at the next hearing, there will be substantial prior periods. This can result in additional attorney fees of over $4,000/yr on a single claim, sometimes for a decade into the future.
4. “Fudging” average weekly wage. If periods and extent of disability cannot be changed, the parties can still argue about the “average weekly wage,” the base number for calculating benefits. Judges have been known to arbitrarily add substantial amounts to the base wage in order to force a compromise.
5. Reimbursement for phantom medical and transportation expenses. See above.
6. Return to work (RTW) at artificially low wages. Actual wages, as opposed to medical opinion, are presumptively correct as a measure of disability. Returning to low wages guarantees higher awards and periods of disability unless “voluntary restriction” can be shown. . “Voluntary restriction” is an issue requiring legal research, medical and vocational testimony, as well as a good knowledge of local economic conditions for proper development. In the past, development consisted of a few pro forma questions to a medical witness since it was taken for granted the claim would be settled on the usual 50% disability.
7. “New” injuries. When a “cap” on benefits is reached, some workers are advised to obtain a medical report of no further disability, wait, return to work and file a new claim. This was done in great numbers, quite successfully, when the rates were substantially increased in 1990.
8. Unsettled condition. If the claim has unpredictable periods of total disability it cannot be said to be “permanent partial.” Persons taking off from work on occasion may be able to defeat caps.
9. Unanticipated change. A worker nearing the limits of a cap may be able to continue to receive payments if the condition substantially worsens without warning.
10. Forum shopping. Workers compensation laws are not uniformly applied in all parts of New York. A claim which arose upstate may receive a far different result if hearings are scheduled for downstate.
All of the above have been used in the past two decades. Depending on tolerance by the Board they may work or fall into disuse. It is certain that in the presently changing environment most will be tried.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.
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