Board creates "Specialized Part" to handle Permanent Partial Disability

Finally admitting that “the classification process has been plagued by non-compliance and bad faith delays” the Board released staggering statistics on the closure rate of claims involving permanent partial (non-scheduled loss of use) disability: the average time from accident to classification (finding of permanent partial disability) is now 6.4 years – representing a huge increase in the time to “MMI” before the 2007 reforms.

The Board states that the “noncompliance and bad faith delays” have been caused by three main factors:

  • parties delaying classification by claiming to be in settlement negotiations
  • disputing that the claimant has reached MMI, even years after the original injury
  • and

  • avoiding classification to escape deposit in the aggregate trust fund.

Of course, the Board takes no responsibility for the fact that it failed to even release guidelines fnecessary to assess permanency until five (5) years after the 2007 reforms (the 2012 Disability Duration Guideleines) and then by failing to make any principled attempt to even apply those Guidelines to pending cases. It also fails to address the fact that the potential for huge Aggregate Trust Fund deposits persuade carriers to avoid classification as well.

To address the obvious problems, the Board has created a new specialized hearing part (court) to handle the classification of permanent partial disability – non-scheduled loss of use claims.

The specialized part is tasked to address two issues: MMI findings and permanency determinations. The Board has released an updated definition of MMI to recognize that “[i]njured workers generally reach MMI within two years of injury , , , palliative or symptomatic treatment does not preclude an MMI finding. . . the mere assertion of the possibility of future surgery is not a bar to MMI.”

In an effort to get cases ready for classification to closure, the Board has issued new attorneys’ fee Guidelines to apply in the “Special PPD Parts” – the judge must now assess whether the claimant’s attorney “fostered the permanent partial disability [finding] or hindered it.” Any claimant attorney who is found to “have engaged in dilatory tactics or failed to comply in a timely manner with Board rules” will have their fee decreased. The new guidance states that “in no case shall the attorneys fee be based solely on the amount of the award.”

Of course, the claimant’s bar is howling mad. In their response, they argue “as a result of the 2007 “reform” legislation, it is no longer in the interest of injured workers to pursue permanency classifications” because doing so means that the statutory caps run on their awards (maximum 525 weeks). In the published letter, the attorneys state that “it is in the interest of the individual injured worker to receive temporary disability benefits for as long as possible before the imposition of the unfortunate time limitations that were grafted into the statute as part of the 2007 “reforms.” Of course, this perverted rationalization misses the point entirely: it is in the injured worker’s best interest to recover to the fullest extent possible from thier injury and resume productive work quickly, rather than game a workers’ compensation system into providing them meager wage benefits for as long as they can delay a finding of MMI.

The Board has already begun issued “Scheduling Orders” in cases where there is a finding of MMI by any physician, setting trial deadlines for cases ready for classification. We will continue to monitor these developments and report on practice and procedure before the special parts as it evolves. Check out my lengthy article (3,600 words, and also available as a PDF/ePub here) reviewing the various trial and hearing types currently allowed under the statute, with a discussion of everything that is known about proceedings in the “Special PPD Parts.”

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com