From the Desk of Attorney David L. Niefer
PRACTICE TIP: When considering a claimant’s temporary level of disability arising out of cervical and lumbar injuries, reference should be made to the criteria set forth in the 1996 Medical Guidelines defining various levels of disability.
Although the New York State Workers’ Compensation Board has issued Guidelines in 2012 and 2018 which have superseded various provisions of the 1996 Medical Guidelines, the 1996 Medical Guidelines still have continuing relevance when assessing an injured worker’s level of temporary disability. The criteria defining a mild, moderate, marked, or total level of disability provide largely objective criteria upon which to determine an injured worker’s level of disability prior to a finding of MMI.
The continuing relevance of the 1996 Medical Guidelines was noted in the recent Board Panel Decision at Drybar Holdings, LLC, WCB G2785859 (2/17/22). In Drybar Holdings, LLC, the Board Panel recognized that the 1996 Medical Guidelines can be used “as an aid in determining a degree of temporary disability.” The Board Panel then looked to the criteria for a total level of disability arising out of injuries to the spine set forth in the 1996 Medical Guidelines. They concluded that an injured worker experiencing “intermittent difficulties performing some activities of daily living” who “cannot sit, stand, or drive for an extended periods of time due to back pain” does not give rise to a finding of a temporary total level of disability.
When evaluating an injured worker’s level of temporary disability arising out of neck and back injuries, it is appropriate to consult the 1996 Medical Guidelines. A conclusory opinion from an attending physician that a claimant continues to be totally disabled should be evaluated in the context of the physical findings and the criteria set forth in the 1996 Medical Guidelines. A decision can then be made as to whether development of the record with medical testimony is necessary for purposes of determining the proper level of temporary disability.
If you have any questions about this or any other issue, contact David L. Niefer at dniefer@gittolaw.com or (607) 723-0600 or any of the attorneys in our office. If you would like a training session on this or any area of the Workers’ Compensation Law, please do not hesitate to contact our firm.
This information is provided for general guidance only. This information should not be used as a substitute for consultation with legal counsel. Each case presents unique facts requiring individual analysis.
