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Form(s) Follow Function as Worker’s Compensation Board Introduces New Forms to Determine Loss of Wage Earning Capacity

In 2007, the Workers’ Compensation system in New York underwent a major overhaul with the introduction of Chapter 6 of the Laws of 2007.  Since that time, the following has happened:
  • The maximum weekly compensation benefit has increased incrementally from $400.00 per week to $772.00 per week.
  • Medical treatment guidelines were enacted effective December 1, 2010, to control medical care for the back, neck, knees and shoulders.
  • Benefits for Permanent Partial Disability (PPD) claims, among the most costly of all Workers’ Compensation claims, were capped at between 225 and 525 weeks of duration, based upon the loss of wage earning capacity.

loss-of-wage-earning-capacity-formOn January 1, 2012, the determination of “loss of wage earning capacity” was completely changed from its former definition.  Previously, “loss of wage earning capacity” was based solely on the degree of medical impairment of the injured worker.  Under the new system, “loss of wage earning capacity” is determined by a combination of the following three factors:

  • Degree of medical impairment
  • Functional capacity in the workplace
  • Vocational history

These factors combine to form the claimant’s “Loss of Wage Earning Capacity”.

Since Permanent Partial Disability (PPD) claims are among the most expensive claims that a business can face, new forms have been developed to quantify the injured worker’s loss of wage earning capacity.  Completion of these two forms is critical to the defense of the claim.  Therefore, we urge you to adopt these forms into your record-keeping protocols immediately.  The Vocational Data Form should be incorporated into your personnel files.  Workplace supervisors should become familiar with and be able to promptly complete the Functional Capacity Form for all reported claims.  A more detailed explanation follows.

Vocational Data Form

When a claim is in the PPD classification process (i.e. when the claimant reaches maximum medical improvement, usually 6-24 months after the date of accident), the claimant will be asked to complete an official Workers’ Compensation Vocational Data Form (VDF-1).  This form specifically outlines the claimant’s educational history, special skills, work experience and knowledge of the English language.  Accordingly, the less education, special skills, work experience and knowledge of the English language the claimant has, the larger the loss of wage earning capacity will be.

The questions on the Vocational Data Form reflect the information that the claimant will be required to complete in order to establish his or her loss of wage earning capacity.  We strongly recommend that the Vocational Data Form be filled out as part of the employment application, for all new hires, and for existing employees to the extent that it is practical.  The completed form should be kept in the employee’s file, until such time as a Workers’ Compensation claim arises (hopefully there won’t be one).  If there is a claim, the completed form should be provided as part of your First Report of Injury (FROI).  Should there be a discrepancy between the two forms at the time of PPD classification of the claim by the Workers’ Compensation Board, the carrier/employer will then be in a position to rebut any attempts by the claimant or his attorney to argue for a higher loss of wage earning capacity on the basis of the employee’s submission of the VDF-1.

Employer’s Report of Functional Job Capacity at Time of Injury

During the process of determining loss of wage earning capacity, a claimant must undergo a physical test called a Functional Capacity Examination.  This examination is performed by a doctor of the claimant’s choosing.  It is designed to measure the functional capacity of all physical movements the claimant may be required to perform in the workplace.  Absent any information from the employer, the claimant is free to explain to his doctor all the requirements of the job at the time of the injury.  Furthermore, there is nothing with which to compare the claimant’s functional capacity post-recovery to what it was prior to his injury.

In order to assist in the defense of a claim, the injured workers’ supervisor should fill out the Functional Capacity Form as part of the Accident Report.  Completing this form is your chance to explain to the Workers’ Compensation Board what the claimant’s exact physical requirements are as part of his job.  In doing so, you will not only prevent the claimant from having the only say with the attending physician as to what his job duties are, but you will also provide the Workers’ Compensation Administrative Law Judge with a basis for comparison of the claimant’s current post injury functional capacity.  This is a valuable tool for the Administrative Law Judge who will ultimately determine the loss of wage earning capacity of the claimant.  It will also help limit the portion of the loss of wage earning capacity that can be related to functional capacity.

Outreach from GCG to Clients

We are available to answer any questions, to review your existing protocols, and to provide orientation training, either on-site or via conference call. Our staff will help you integrate, understand, and apply maximum leverage with these forms, and implement new strategies in the face of these changes in the Workers’ Compensation system. We will make available a webinar on a CD as well as a YouTube format online, very soon.

To obtain copies of the forms you may call (518) 370-3303, ext. 8814 for Sheri Kosloski, or by email at sheri.kosloski@gcgriskmanagement.com. These new forms can also be accessed on our website at www.gcgriskmanagement.com, under “Claims Management” in the Resource Library, once you log in with your username and password. If you’ve forgotten your username and password, or have not signed up for one, please contact Angela Goff at (518) 370-3303, ext. 8811, or by email at angela.goff@gcgriskmanagement.com.

For a copy of the CD-Rom when it is available, please contact Elsie Tai at (212) 431-3000, ext. 8456, or by email at elsie.tai@gcgriskmanagement.com.

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