Surveillance and Investigations can Counteract Fraudulent and/or Erroneous Permanent Partial Disability (PPD) Awards

Navigating the 2012 NYS Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (NYS Guidelines)

According to the NYS Guidelines, "In 2007, workers' compensation reform legislation established duration limitations on non-schedule permanent partial disability awards based on an injured worker's loss of wage-earning capacity (LWEC).  In 2008, the Workers' Compensation Reform Task Force began developing guidelines for evaluating loss of wage earning capacity."  Their proposals are now part of the current medical impairment guidelines which replaces prior guidelines for non-schedule impairments of out-of work claimants.  The NYS Guidelines now includes new sections for functional evaluation and the evaluation of loss of wage earning capacity.

Permanent partial disability is one type of classification allowed by law in worker' compensation cases.   Evaluation of permanent disability occurs when there is a permanent impairment remaining after the claimant has reached maximum medical improvement (MMI).  MMI cannot be determined prior to 6 months from the date of injury or disablement, unless otherwise agreed to by the parties.

A finding of MMI is based on a medical judgment that the claimant has recovered from the work injury to the greatest extent that is expected and no further improvement in their condition is reasonably expected - but what if the claimant continues to recover beyond expectations?  In addition, as we have frequently documented, many claimants will fraudulently exaggerate or even lie about medical conditions in order to receive compensation.  While not every claimant is dishonest, the risk of loss due to fraud is extremely high because PPD awards can be paid out for years or even the lifetime of the claimant.

Examining health providers have a major responsibility in the determination process as they are expected to adhere to the Guidelines and provide the Board their best professional opinion based on the claimant's medical condition, degree of impairment, and functional abilities.  They are expected to review the Guidelines and medical records, perform a thorough history and physical examination and report the findings; state the work related medical diagnosis; identify the affected body part or system; follow the recommendations to establish a level of impairment, and evaluate the impact of the impairment on the claimant's functional and exertional abilities.