The WCB, with believed links to Chaos, hasdeveloped a new method for determiningdisability in New York State. This newmethod, code name LWEC, considers both aperson’s physical disability, as well as aperson’s vocational limitations whendetermining the percentage of loss of wageearning capacity. The LWEC method onlyapplies to PPD cases where the person is notworking at time of classification.Gone are the days of only considering a person’sdegree of physical disability. This new method, ifunchecked, can cost our clients large sums in workers’compensation benefits.
LWEC % Max Weeks of The LWEC percentage PPD Benefits is equal to the> 0-15% 225 weeks>15-30% 250 weeks corresponding weeks>30-40% 275 weeks of benefits. The>40-50% 300 weeks amount of weeks is>50-60% 350 weeks referred to as the>60-70% 375 weeks>70-75% 400 weeks capped benefit for it is>75-80% 425 weeks no longer lifetime.>80-85% 450 weeks>85-90% 475 weeks Permanent total is>90-95% 500 weeks considered 100% LWEC and>95-99% 525 weeks is still a lifetime benefit.
Hurry … you must bring your case to afinal LWEC percentage, thereby, startingthe capped benefit and limiting theperiod of temporary benefits.The temporary benefit period is notcapped, and, if not stopped, cancontinue indefinitely.For if you LWEC a person at 80% or more, thenthe person is legally allowed to re-open theircase for reconsideration for a total disabilityfinding. If successful, they would have lifetimebenefits.
To navigate the 2012 Disability Guidelines youwill need to understand the concepts of: 1) MMI 2) Medical Impairment 3) Functional Loss 4) Vocational Issues 5) LWEC
A finding of MMI is based on a Judicial judgment that …(a) the claimant has recovered from the work injury to the greatest extent that is expected, and(b) no further improvement in his/her condition is reasonably expected. The need for palliative or symptomatic treatment does not preclude a finding of MMI.In cases that do not involve surgery or fractures, MMIcannot be determined prior to 6 months from the dateof injury or disablement, unless otherwise agreed to bythe parties.
Scenarios that may be used to delay MMI: • Allegation of exacerbation requiring additional treatment prior to being established as MMI • Claim of consequential injury, i.e., depression • Circumvent IME for as long as possible
The new guidelines make a distinction betweendisability and impairment. Impairment is a purelymedical determination made by a medicalprofessional, and is defined as any anatomic orfunctional abnormality or loss. According to the WCBa competent evaluation of impairment requires acomplete medical examination and accurateobjective assessment of function. The WCB believesthat the Guidelines provide the physician with amore uniform process to evaluate an individualsimpairment resulting from a medically documentedwork related injury or illness.The WCB plans to accomplish this goal by utilizingthe new C-4.3 form. The form is much morecomprehensive than the C-4 form and only one partaddresses medical impairment.
We expect that the treating doctors in thenew system will continue to find the highestdegree of impairment and severity they canand express their opinions on the new C-4.3form.It is your responsibility to combat this medicalevidence with medical of your own. Your IMEmust be well versed in determining impairmentand follow new impairment charts and severitycrosswalk.
Table 18.1: Medical Impairment Severity CrosswalkRelative Severity ClassNo impairment 0 1 2 3 4 5 6 TOTALChapter 11: Spine and Pelvis (Tables 11.1, 11.2 and 11.3)Cervical Class 1 A-C D-E F-G H N/AThoracic Class 1 A-C D-E F-G N/ALumbar Class 1 A-B, D E-F G-H I-J N/A
According to WCB the treating physician should measureand document the injured workers’ ability to performvarious work-related functions such as sitting, standing,walking, and overhead reaching, and whether there arerestrictions as to how long and/or frequently suchactivities may be performed. The physician should alsoevaluate the individual’s residual exertional capacitysuch as the ability to lift or carry weights. The exertionallimitations are described according to a standardclassification of physical demand requirements on ascale from Sedentary to Very Heavy. The WCB plans to accomplish this goal by also utilizing a new C-4.3 form. The form has a section for impairment and functional loss.
In addition to the standard employmentinvestigation, surveillance can focus onany activities that would contradict thealleged vocational limitations.Neighborhood, university andcontinuing education facility canvassesare also an option.
A FCE is a series of tests designed tomeasure a claimant’s physical abilities.They are frequently used to objectivelyevaluate if an injured worker canreturn to their usual occupation or ifwork restrictions are necessary.
AGAIN, We expect that thetreating doctors will continue tofind the highest degree offunctional loss and will, more thanlikely, check the light or sedentarybox.It is your responsibility to combat this medicalevidence with medical of your own. Your IMEmust be well versed in determining functionalloss. You may decide to employ a specialist fora functional capacity exam.
Light Work - Exerting up to 20 pounds of forceoccasionally, and/or up to 10 pounds of force frequentlyand/or negligible amount of force constantly to move objects.Physical demand requirements are in excess of those forSedentary Work. Even though the weight lifted may only be anegligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significantdegree; or (2) when it requires sitting most of the time butentails pushing and/or pulling of arm or leg controls; and/or(3) when the job requires working at a production rate paceentailing the constant pushing and/or pulling of materials eventhough the weight of those materials is negligible. NOTE: The constant stress of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.
EDUCATION AND TRAININGEducation plays a significant role in a worker’s ability to qualify fordifferent occupations and level of income. Thus, in determining loss ofwage earning capacity, it is important to evaluate the degree thateducational achievement buffers or intensifies the impact of a medicalimpairment on a worker’s earning capacity.SKILLSPrior work skills are often as important as formal education in anindividual’s qualification for employment. Someone who has onlyperformed unskilled or semi-skilled work in the past is unlikely to qualifyfor skilled work post-injury.AGEGenerally, advancing age may adversely impact a person’s ability toobtain employment that involves work that is different from one’s priorwork experience or requires developing new skills.LITERACY AND ENGLISH PROFICIENCYThe ability to read, write, and speak English fluently is a requirement formany occupations in New York.OTHER FACTORSOther factors may be considered in determining an injured worker’s lossof earning capacity. The key consideration is whether the factor impactsthe injured worker’s ability to perform paid employment.
We will expect that you will counter exaggerated claims ofvocational loss by obtaining evidence of your own. You mustwork with your employer and perhaps obtain personnel files,interview supervisors and redefine your original 3-pointcontact.
FICTITIOUS BUSINESS SEARCHESSmall businesses filed with local county clerksbut not actually incorporated.SOCIAL NETWORK SEARCHESFocusing on public individual profiles that mayinclude employment and educationInformation as well as “posts.”CORPORATIONS SEARCHESActive and defunct corporations that includethe jurisdiction and initial filing date as well asofficers of said corporation.
Practitioner and business licenses including and not limited to:• Apartment Information • Notaries Public Vendors and Apartment Sharing Agents • Pet Cemetery & Pet• Appearance Crematorium Enhancement(Cosmetology, • Private Investigator Nail, Hair Styling, Waxing) • Real Estate Appraiser• Armored Car Services • Real Estate Brokers• Hearing Aid Dispensers• Athlete Agent • Real Estate Salesperson• Automobile Broker • Security or Fire Alarm• Bail Enforcement Agent Installer• Barber • Security Guard• Bedding Manufacturer & • Telemarketer Business Refurbisher • Ticket Reseller• Central Dispatch Facility• Home Inspectors
LWEC IS COMPRISED OF ALL THREE ELEMENTS Functional Loss Physical Vocational Impairment Factors LWECOne then compares the average available wages to theoriginal AWW and the percentage difference becomes theLWEC with the inverse being the wage earning capacity.
We believe that in many cases avocational specialist will be the onethat determines:1) What jobs are available based upon the three factors.2) What the available jobs pay on average.
WORK CAPACITY AND QUALIFICATIONS • Physical Demand as Defined by IME and/or Treating Physician • MMI • Obligation to Look for WorkOTHER FACTORS: AGE, EDUCATION AND LANGUAGESKILLS • Magic Number – 25 to 55 • What is SVP Range? • Education vs. Work Experience • Challenging Actual Language Skills • Finding Jobs that Accept Non-English Speaking CandidatesCALCULATING LWEC BASED ON ACTUAL WAGES • Transition of Skills • Wage Comparison and Analysis
WEC = AVERAGE PAY AMOUNT /AWWLWEC = THE INVERSESo if the average pay amount is $400 and the originalAWW was $600 then the WEC would be 66% and theLWEC would be 33% with a payment of $133.33 (2/3 thedifference) for 275 weeks (33% on the chart).