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The undeniable progress of medicine both in and outside of workers’ compensation is a sight to behold. There are continuous improvements in methodologies and medications, resulting in improvements in recovery results and reductions in recovery times for claimants. Those very same improvements provide carriers with reduced exposure potential; healthy claimants require less treatment and hopefully return to work, reducing both medical and indemnity exposures.
During the pandemic, litigation on degree of disability was met with muted responses by the board. The limitation on attachment litigation led to limited net results from litigation on degree – the idea was what good was a partial disability finding if attachment can’t be raised now anyway. Additionally, the pandemic delayed or hindered a carrier’s ability to produce contrary medical opinions due to difficulties in scheduling IMEs, even in cases where claimants did not appear to otherwise require extended or unusual periods of time to recover. Ultimately, in Schedule Loss of Use (SLU) claims where one was able to get those findings of partial disability, one could provide a significant benefit for carriers. SLU claims provide a (typically) lump sum benefit to a claimant based on the percentage of their loss of use of an extremity, based on a schedule in Workers Compensation Law § 15(3). That award is offset by awards already paid at the time of the SLU finding but subject to a Protract Healing Period (PHP.)
In SLU claims, the board wanted to recognize those specific claims with uniquely lingering effects, those claims that resulted in extended temporary total awards beyond the usual healing periods anticipated for that body part. Specifically, as provided in Workers Compensation Law §15(4-a), in claims where a temporary total disability exceeded the scheduled number of weeks, the weeks in excess of that schedule shall be added to the compensation period, as provided in the Schedule Loss of Use Schedule. Effectively, any weeks of temporary total beyond the PHP schedule is added in addition to a claimant’s finding on SLU.
As a matter of practice, the protracted healing periods as detailed in the chart above, are always calculated based on the largest site – so a foot and a leg will be based on the leg total but will also be affected by which sites a temporary total (TT) finding is allocated to. This is particularly important in claims where claimants undergo multiple surgeries to different schedule loss of use sites. A claimant may end up with 50 weeks of total, but if those directly correspond to 25 weeks of TT for a leg surgery and 25 weeks for a shoulder surgery, neither has exceeded the protracted healing periods, and neither should result in a PHP period.
As an example, for claims where a PHP does exist, imagine a claimant with 55 weeks of TT awards and a shoulder injury - the IME and treating physician agree the claimant exhibits a 35 percent SLU. The 35 percent SLU would entitle the claimant to an award of 109.2 weeks. However, due to the 55 weeks of TT, the claimant is also entitled to 23 weeks of PHP in addition to the 109.2, bringing the SLU total to a new grand total of 132.2 weeks of awards. While that award would be offset by the prior paid, it would also be growing as a result of the PHP at a one-for-one rate with every week of continued TT.
This is all the more notable now, after a unique period of workers’ compensation, where attachment was held in abeyance for an extended period of time, and litigation on degree of disability had reduced (though still ever-present) benefits. While litigation on degree might not always been the ideal solution, even stipulating to awards below a temporary total could prevent reaching a PHP or reduce the effect of one once reached.
Today New York is facing a new COVID variant, and certain hospitals are stopping elective surgeries due to overwhelmed emergency rooms and staffing issues. While there will always be elements beyond our control, we can prepare ourselves by taking aggressive measures to limit or eliminate TT awards periods with proactive IME scheduling and diligent efforts to get hearings once a TT period has begun. The efforts taken early to prevent or reduce a protracted healing period directly contribute to positive results later when the SLU is calculated.
