Simultaneously, several sets of different guidelines are in various stages of enactment in the New York workers’ compensation system. When in full force, these guidelines will surely change the entire structure of litigation at the WCB. But even now there is occurring insidious erosion which will lead to a year or more of confusion and incorrect decision making in the claim defense process. The problem is – the “Tyrannny of Words”.
There are, in fact, five different sets of guidelines, four involving medical treatment and one involving measurement of permanent loss of wage earning capacity. (WCxKit)
The medical treatment guidelines, formally published on 6/30/10, will go into full effect on 12/1/10.
The “Disability Duration Guidelines” are, at this point, only proposed. On 10/13/10, Robert Beloten, the Board Chair, sought “comment” on the proposed Disability Duration Guidelines. Beyond that, no date has been set for when these guidelines might go into effect, but it is felt that they will be in effect within one year.
What is causing confusion is the use of the words “guideline” and “medical”. Since all five sets are being discussed, and since none are fully in effect, many assume that there is on set of guidelines which covers both medical treatment and measurement of permanent partial disability. All five use the term “guideline” and the term “medical”. However, in the four treatment guidelines “medical” refers to ongoing treatment, regardless of extent of patient “disability”. In the Disability Duration Guidelines “medical impairment” refers to permanent conditions which have been the subject of medical treatment related to the injury of the claim, even if medical treatment has ceased. “Disability duration” measures the maximum weeks of payment for certain permanent injuries.
Although guidelines for disability duration presently have no set date for coming into effect, the section awarding benefits for non-schedule permanent partial disability IS in effect. (WCL, Sect. 15(3)(w) eff. 3/13/07) Awards are being made, even without proposed guidelines, using whatever sources of relevant evidence are available. (WCxKit)
Employers and claims units are advised to carefully determine what is being discussed or asked whenever the word “guideline”, “medical” or “disability” are used in the discussion of ongoing claims. The text of all guidelines is available on the WCB website.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, New York. 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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