In that legislation, the maximum weekly benefit for claimants was raised, in exchange for a promise durational cap on benefits in non-scheduled, permanent partial disability (“PPD”) cases.

However, four years and counting later, the Board has still not adopted the disability guidelines. Furthermore, while claimants are now getting the higher rates -- currently over $750 per week, up from $400 in 2007 -- capping of PPD's are the exception rather than the rule, despite the Buffalo Auto Recovery case in 2009 which explained how caps could be applied even in the absence of formal guidelines.

It seems that the law judges are waiting for guidance from the Board and it is hoped that this guidance will be provided in the upcoming disability guidelines. The guidelines were the product of recommendations by a task force in which Mr. Jones was a member.

Mr. Jones emphasize that these are guidelines, promulgated by the Board, are not law. They will, if adopted, redefine the concept of disability in New York State, with vocational factors be in play including age, educational achievement and skill level.

Mr. Jones appointed out that perhaps an unexpected consequence of the increase in the weekly indemnity rate is that schedule loss of use awards have skyrocketed in value, due to the dramatic increase in the weekly benefit rate.

The proposed guidelines include a definition of permanency based on maximum medical improvement which is to be based on a medical judgment that the claimant has recovered from a work related injury to the greatest extent that is expected and no further improvement in his or her condition is reasonably expected. This finding must occur at least six months after the date of the accident unless otherwise agreed to by the parties.

There is some concern that the complexity of the guidelines, which encompass findings of permanency and impairment, could lead to inconsistent application by the Board judges. Disagreement on permanency can and probably will lead to litigation.

Mr. Fenster summarized the Guidelines creation process, reminding the group that all the recommendations in the Guidelines are based on the best medical evidence available and the consensus opinion of all stakeholders on the Reform Task Force, including business and labor. He reiterated that the goal of the medical treatment guidelines is to improve the quality of care in workers' compensation. By achieving that goal all parties believe we will see improved outcomes and lower costs. He explained that the guidelines apply to all claims prospectively, no treatment before December 1, 2010 is subject to the Guidelines.

Providers wishing to treat outside the guidelines must file a variance. The board has averaged about 13,000 such requests per month. In noting that some of the variance requests have been of poor quality, Mr. Fenster provided some rough approximate statistics:

—20% have been rejected as not containing the most basic information.

—100,000 variances have been filed for 60,000 unique claimants.
-Physical therapists and chiropractors account for up to 90% of the variance requests.

—30-40% have been granted by the payer

—50% have been denied by the carrier. Of those carrier denials, in about half there is a request for review by a law judge.

—In cases which have been reviewed by the Workers' Compensation Board's medical director (only 300 cases to date) - 8% have been approved.

—The board has been holding approximately 400 variance hearings per week with a 15-20% approval rate by the law judges.

—Approximately 3500 unique providers have filed variance request, but 250 providers account for 50% of the variance request. Less than 10% of doctors have filed about 50% percent of the variance requests.

—80% of the variance requests are for chronic manipulation, many in cases more than 2 years since the date of injury. The guidelines state there is no efficacy for chronic treatment (manipulation several times a month for years)or prophylactic treatment, and they are not recommended. These issues have caused at least 90% of the issues surrounding the Guidelines as many medical providers are unable to document functional improvement as a result of manipulation in chronic cases.

Mr. Fenster advised us that still to come are guidelines for carpal tunnel syndrome (expected in 2012) and chronic pain. The Chair of the Workers’ Compensation Board has put together a Medical Advisory Committee to begin working on guidelines for the treatment of chronic pain syndrome. Mr. Fenster feels that the guidelines have been working well and will continue to be successful in the future.

NYCA thanks NYSIF for their generosity in allowing us to use their facilities and thanks Mr. Jones and Mr. Fenster for their time and expertise. Our next professional development breakfast workshop is scheduled for November 14, 2012. Be sure to save the date!