Good News, Good Job: Disability Duration Guidelines

Medical Impairment Guidelines (MIG) For an individual who has reached maximum medical improvement (MMI), the 85-page MIG provides the physician with accurate and objective tools to document an individual’s work-related impairment. By following the detailed steps outlined for this analysis, the physician determines the appropriate Medical Impairment Class and the related severity ranking for the permanent impairment condition. This class and severity ranking provide a foundation for evaluating the impact of the injury or illness on the individual’s functional abilities that is an input for determining loss of wage-earning capacity. The Guidelines are quite clear, however, that the Medical Impairment Class and severity ranking should not be used as a direct translation to loss of wage earning capacity, that although medical impairment is generally predictive of residual functional ability/loss, it cannot be directly translated to loss of wage earning capacity.

Functional Guidelines FIG A 5-page Functional Assessment Form is to be completed by the treating physician and the IME, to measure an individual’s residual functional abilities and losses in relation to the diagnosed work-related medical impairment and the likely requirements in the workplace. In the event of material differences between the findings of the treating physician and the IME, the parties or the Judge may request a functional capacity evaluation by an impartial Designated Health Care Professional who shall follow a standard protocol and actually calculate functional abilities according to metrics from the U.S. Department of Labor Dictionary of Occupational Titles.. The results from the Functional Guidelines are an input to and inform the determination of loss of wage-earning capacity.

The Loss of Wage Earning-Capacity Guidelines is supposed to utilize the results from the Functional Guidelines together with vocational factors, such as the education, skill level and age of the injured worker, to determine loss of wage-earning capacity. Information regarding vocational factors should be collected from the individual using the attached, newly created Vocational Data Form, and may be supplemented by the employer.

Four approaches were considered for determining loss of wage-earning capacity, the first two of which were discussed extensively:

   1. Grid Approach: the design of a grid that assigned percentage points of loss of wage-earning capacity depending on various factors, including the injured worker’s loss of functional exertional ability, age, skill level, and education;
   2. Vocational Specialist Approach: the use of an impartial vocational specialist to provide an expert opinion on the injured worker’s residual wage-earning capacity;
   3. Hybrid Approach: the use of a combination of the two preceding approaches; and
   4. Litigation Approach: the injured worker and insurer would submit such evidence regarding the injured worker’s earning capacity and loss of wage-earning capacity as they deem relevant for the Judge’s consideration.

Because a consensus could not be reached by the Advisory Committee about the approach for determining loss of wage-earning capacity, this third segment of the Guidelines is referred to the Board for development and determination.

In an attempt to clarify the procedural steps, the Guidelines include two pages of flow charts.

Michael T. Berns is a former New York State Workers' Compensation Board commissioner. This column was reprinted with his permission from his blog,http://insideworkerscompny.com