As of this writing, 01/06/11, the current medical guidelines provide various criteria for determining a New York State Workers’ Compensation claimant’s degree or level of disability. Listed below are the criteria in determining whether you qualify to collect disability benefits at the total rate:
•Chronic pain and with a history of continuous use of multiple drugs such as analgesics, anti-inflammatory and psychotropics.
•Long history of failed and repeated conservative treatments.
•Persistent radicular pains to the lower extremities and positive correlative physical findings of radiculopathy.
•Significant gait deviation and continued use of assistive device such as a cane, spinal brace, etc.
•Difficulties negotiating stairs and irregular terrain.
•Back or leg pain, causing interference with standing, prolonged sitting such as driving continuously for two hours at a time.
•Markedly limited truncal mobility.
•Positive neurological findings such as SLR tests; reflex, sensory, and motor abnormalities.
•Neurogenic claudication.
•Positive diagnostic tests such as X-rays, CAT Scan, MRI, EMG, NCS, and Myelogram.
•Failed or poor response to surgical procedures such as laminectomy, spinal fusion, and chemonucleolysis.
•Poor response to chronic pain management treatment.
•Bladder, bowel and/or sexual dysfunction.
•Use of assistive device to ambulate such as walker, crutches, and/or wheelchair of more than two years duration.
•Needs assistance to undress or disrobe and unable to get up to the examination table without assistance.
•Needs assistance to perform the activities of daily living such as self-care, personal hygiene and transportation.
•Severe neurological deficit such as marked muscle weakness, paraplegia, and paraparesis.
•Disturbance of bladder, bowel, and/or sexual function.
The above criteria are listed in the New York State Workers’ Compensation Board Medical Guidelines Published June 1996.
In order to qualify for a total disability it is not necessary that you meet each and every factor listed, however, the Law Judge has discretion to determine whether or not your injury and physical finding sufficiently meet the criteria listed.
As you can see, the Guidelines are somewhat restrictive. The last 5 Guidelines listed specifically pertain to total disability findings. Those findings are the most restrictive of all including the use of crutches or assistive device, inability to undress without help as well as bladder or bowel disturbances.
Litigation the issue of degree of disability is a tricky topic and should only be resorted to when a fair rate of compensation cannot be negotiated with the insurance carrier.
If you have questions regarding your Workers’ Compensation claim, we would be happy to speak with you.
