Your Impairment Rating Can MAKE OR BREAK Your Workers Comp Case!

Good afternoon everybody. Today we're going to discuss a topic, kind of jumping off from last week and again something that we get a lot of questions about. Impairment ratings. What is it?

What is an impairment rating in workers comp?

It can be very confusing and we're going to jump right in here and we're going to discuss impairment ratings. As always folks, if you have any questions at any point in time please feel free to chime in with them. Always happy to help, always happy to answer questions. If it's something that you think of after we're done for today please feel free to give us a call. 212-406-8989. We were always here to answer your questions.

We're going to talk about impairment ratings and for those of you on YouTube of course you can see the slides. I know you don't see them on the other platforms and I apologize for that but we want to know what is an impairment rating in workers compensation. Now the term impairment rating is a very generic term and it can mean a lot of different things. It could mean a disability rating as to your period of time while you're temporarily disabled. It could talk about your disability rating when you're permanently disabled and it could also talk about your disability rating if you have a permanent partial disability versus a schedule of use. It generally just means the level of your disability at a particular point in time.

However, more specifically when we use the term impairment rating in the New York workers compensation world we are generally referring to a person's permanent partial disability. It is their overall level of permanent partial disability and that is to be in contrast to what's otherwise known as a schedule loss of use. As we discussed in earlier videos there are generally two categories of permanent disability here in New York State under the New York State workers compensation law. You have your permanent partial disabilities. These are injuries stemming from head, neck, back injuries, psychological disabilities, systemic injuries, core body injuries.

There are also some other injuries that cause to be a combination of multiple injuries. Schedule loss of use on the other hand are injuries to extremities, hands, feet, arms, legs, things like that. A schedule loss of use can, I'm sorry, a permanent partial disability can be assignable in a case to an extremity so a really, really horribly injured arm.

So if the level of disability is so significant that could be converted to a permanent partial disability type of finding. It's rare but it does happen. Or if you have multiple injuries, if you hurt your head, neck and back and your left arm and your left leg in an accident and you're still out of work at the time of your permanent disability determination you would be looking for an impairment rating for a permanent partial or permanent total disability. Generally, we use the term permanent partial disability. It's much more frequent. Permanent totals are tough to come by. So yes, permanent partial disability impairment ratings are different from schedule loss of use findings. And when we do use that term impairment rating, that's generally what we're talking about, permanent partial disabilities.

Why is the impairment rating so important to your workers compensation case and how does it affect your benefits?

An impairment rating of a permanent partial disability or permanent disability is used to determine your overall Elle WEC is the term we use. It's loss of wage earning capacity when we combine your disability with your vocational background. So we use this example all the time. If you take two people, two people have the exact same injury, the same back injury for instance.

They both have a herniated disc at L5S1 with ridiculous symptoms. They have the exact same back injury. And person number one speaks seven different languages and is a college graduate and has all sorts of specialized training and was in the military. And person number two cannot read or write and only speaks a very select dialect of a particular language which is not very widely used throughout the world.

If both of those people have the same physical permanent disability, let's just say they both have a 50% permanent disability, the individual with the schooling and the background might have an easier time finding a job given his injury in the future as opposed to the other person. So that 50% disability for the highly educated multilingual person might actually be more like a 30% disability whereas the person who has no formal education can't read or write and only swept floors in his entire life. His 50% disability might be more like a 70% disability.

So Elle WEC loss of wage earning capacity is when we take your physical disability. The disability resulting from your work accident, we combine your vocational factor in and the judge will determine an overall Elle WEC loss of wage earning capacity. So your impairment rating is crucial. It's half, if not more, it's more than half of the determination as to what your overall level of permanent impairment is and how much you're entitled to moving forward.

See a couple questions popping up about schedule loss. "Is loss of a thumb worth more than a finger or does the law consider the thumb just another finger?"

Your thumb is not just another finger, it's the most valuable finger. Here we're talking about schedule loss of use as opposed to permanent impairment. So we're going to backtrack for a moment. Schedule loss of use, permanent loss of use of a thumb, I believe is 75, that is correct. If you lose your thumb in a work-related accident, 100% loss of use of a thumb gets you 75 weeks of benefits payable to maximum rate of compensation whereas 100% loss of use of your index finger, for instance, gets you 46 weeks. So your thumb is worth almost double what your index finger is worth and then if we look at your small finger, for instance, if you lose your pinky in a work accident, you get 15 weeks of workers' compensation benefits payable to maximum rate.

So just in terms of scale, total loss of use of a thumb, 75 weeks, total loss of use of a pinky, 15 weeks and they go up from there. So good question. Now, how does, so I explained how your impairment rating affects your benefits and how it combines your vocational factors. Now, schedule loss of use is different.

Schedule loss of use, like we just discussed with the fingers, it could be, I just see a question popping up here about knee surgeries, shoulder injuries, elbow injuries, wrists, fingers, toes, ankles. Those are handled differently. Your vocational background does not play a role in those awards. A schedule loss of use is paid to you based upon the percentage of impairment to the body part. 50% of a thumb, 40% of a wrist, 10% of a shoulder. It's a flat rate based upon the value of that body part. Like I said before, thumb is worth 75 weeks for a total loss of use of a thumb. Total loss of use of an arm is 312 weeks.

So if you have a 10% permanent loss of use of your arm, you get 31.2 weeks and that's payable at the maximum rate of compensation, your total rate. Two thirds of your growth salary, your gross weekly salary, up to the statutory maximum. So they're paid differently. Vocational factors are not considered when determining schedule loss of use. Somebody asked me about three knee surgeries to the same knee.

Well, this is something we've spoken about in the past. Knee surgery is supposed to make your knee better. Well, that doesn't always do that and sometimes, regardless, although it might make you better, you're still up with residual damage. It's hard to determine what the value of a case like that is worth. You really need to recover as best you can. You need to reach the point of maximum medical improvement, which we're going to talk about in a second.

Regardless of your injuries, permanent disability of any type, schedule loss of use, permanent impairment, things like that are not determined until you reach maximum medical improvement. So this person, for instance, if you had three knee surgeries to the same knee, it's difficult to determine what the value is, what your loss of use is until you approach maximum medical improvement. That's the point where you're not going to get any better.

You're not going to recover any further from medical care and you plateaued. That's generally the time when those assessments are made. Should I settle, even though I'm still in pain? Pain is a factor, but it's not necessarily the deciding factor. If you are at the point of maximum medical improvement, like I see you commenting here, you might be approaching the time to start looking to settle. So I would certainly start considering it and weigh in your options with your attorneys.

You should have a sit down and have a conversation with your lawyers. Let's talk about your options with your attorneys. I don't know if any additional treatment is on the horizon for you or not. That's certainly something to consider, but this might be the time to start having those discussions about case value and what your settlement would be looking like and if it's the right time to settle. Very good questions and I appreciate that. Thank you. Moving on.

Who calculates your impairment rating and when in your workers' compensation case does it happen?

So, like I just discussed, maximum medical improvement, generally your assessment for your permanent disability, whether it's a permanent partial disability, an overall head-neck back injury, or if it's a schedule of abuse, if they're trying to figure out how much damage to your elbow you had from that accident, those assessments are made by a doctor when you reach maximum medical improvement. Now, they are opinions.

They're medical opinions and like any opinion, there is differing opinions. So your doctor might find that you're not yet in maximum medical improvement and might think that you still need more treatment and the insurance company might send you out to see their doctor and their doctor might say that you have reached maximum medical improvement and you're done with your treatment.

So there might be a difference of opinion there. Also, both doctors might agree that you have reached maximum medical improvement and might have a differing opinion as they oftentimes do as to what your level of permanent disability is. It's funny how generally speaking, treating doctors find a little higher, carry your doctors find a little bit lower, but hey, what did you expect? That's what your lawyer is here to do and it's to make sure that we can maximize your values and get you as much money that you would be entitled to as possible. Having a good lawyer is crucial.

So the impairment rating could be calculated by either doctor at virtually any time. Once they determine that you've reached maximum medical improvement, they should be offering that opinion. A lot of times it comes from the insurance side first when they send you out to see their doctor, but not always. It can also come from your doctor. Once they reach that conclusion that you've reached maximum medical improvement, you don't need any more care, you don't need any more treatment except for maybe maintenance care, but no active ongoing treatment. They're going to start assessing you for your permanent disability rating, whether it's for permanent partial disability or if it's for schedule loss of use like we discussed earlier.

How is your impairment rating calculated? Are different body parts calculated in different ways?

So again, going back to what we discussed before with schedule loss of use and non-schedule loss, permanent partial disability, extremity injuries versus core body, head, neck and back. Calculations are done differently.

The workers' compensation board here in New York State has a book. It's online now, so it's whatever form you want to refer to it. It has a document called the medical treatment guidelines for determining permanent impairment. And basically this document outlines for the doctors the framework that they should be using when determining your impairment rating. There's various factors that they consider when determining your impairment rating, whether it's impairment of a head, neck or back injury or if it's an extremity injury in the determining schedule loss of use. These factors include what your diagnosed injury was, whether you've had surgery, what type of surgery you've had. There's also, especially with respect to schedule loss, there's things known as special considerations. So if you had, I don't know, there's so many of them. Frozen shoulder gets a special consideration. I think, you know, if you fall into one of those categories with special considerations, that plays a role in your overall disability rating. And most importantly, for virtually every body part, range of motion is the biggest factor in determining a person's permanent impairment. A shoulder should be able to go 180 degrees up and 180 degrees forward. And if you can't only go this high, you know, that's a factor in determining your permanent disability. That goes for schedule loss and non-schedule injuries, head, neck and back injuries, how forward you could flex with a bed back, how much you can turn or rotate a neck. All factors in determining your overall level of impairment. So those are generally the considerations that the doctors on either side are going to use to determine what your overall level of disability is. Willie, I'm Ed, you're very welcome, my friend. Okay.

What if you have multiple injured body parts? How is your impairment reading calculated then?

So if you have multiple body parts, it really depends on what those body parts are. It depends on what your situation is at the time that permanency or permanent disability is being assessed. So, you know, it really depends on your circumstances. If you're, and it also depends on which of the injuries are more severe and which are less severe. If you are out of work, a permanent partial disability award, so an award for an ongoing permanent injury to a neck or a back is only compensable if you're not working or if you're working at reduced earnings.

So if you hurt your back and you go back to work and you're earning the same amount or more than when you got hurt, as bad as your back might be, you're not going to get any additional financial compensation. You'll still get treatment, but you're not going to get money. If you hurt your back and you go back to work and you're earning half as much as you earn before because you can only work half the hours because your back is bad, well, then you are entitled to workers' compensation, money benefits. You earn entitled to up to two-thirds of the difference between your pre-accident salary and your current salary up to the statutory maximum.

So, potentially you could get money even if you do go back to work with a bed back or a bed neck or a stroke or a heart attack or anything like that, a concussion, if you do go back at reduced earnings. If you are unable to return to work at all, it's a result of any of those injuries, core body injuries like we discussed. That's when you are entitled to ongoing awards.

Now, by the same token, if you do go back to work and you have a head and neck, head back injury, but you also have a bed shoulder or bed knee, you might be able to get the value of the shoulder or the knee depending on the circumstances and the facts of your particular case. And that might be the route to go. That might be the more beneficial route for you and it might get you more money overall. If you have multiple body parts, head, neck, back, shoulder, knee, everything, we have to look at your particular set of circumstances.

What's your work status? Which of the injuries are more severe and where is the value? This is where it's crucial to have a lawyer.

This is not something you are going to be able to easily figure out on your own. And as helpful as an insurance company might sound on the phone and might sound in the letters that they send you, if you're not represented, they are not there to maximize the money you're going to get. They're there to protect their own interests. A judge might help you, but from what I've seen, judges who are faced with unrepresented clients in this type of circumstance, 99% of the time, tell the client, you should probably go find a lawyer. It's time for you to get a lawyer.

So it's crucial to have a lawyer here because they're able to navigate the guidelines, the law, your medical reports and kind of walk you down the path in a way that's going to get you the most recovery possible. Very, very important to have a lawyer at this point.

And it's probably a good point in time for me to mention if you do need a lawyer, if you need help, if you have questions, please give me a call, 212-406-8989.

Here's a good question that just popped up, "How are concussions and TBIs?"

TBI is a traumatic brain injury. For those who don't know, a concussion is a type of a TBI. We have debates about this all the time. How are concussions, TBIs? We could just call them head injuries, calculated into an impairment rating. So clearly with a head injury, unless there's an associated neck injury, range of motion is not really a factor here. But the medical treatment guidelines for determining permanent impairment do address that. You want to make sure you're seeing a reputable neurologist who's able to run you through the proper neurological testing in determining permanent impairment. You want to make sure you get a -- well, your doctor should be recommending, if necessary, a brain scan and MRI with DTI imaging, I believe it's called, where they take a look at the brain to see what type of physical pathology, physical changes occurred as a result of the accident and the injury, the concussion. A concussion, some you may -- the traumatic brain injury, a concussion, is when your brain hits the side of your skull and you bruise your brain. And depending on how severe that is, some of those injuries, as we know, can be permanent in nature. So there is a way to determine permanent impairment for a brain injury. And those types of injuries are -- follow the same path as a permanent partial disability similar to a neck or a back. So that's a fantastic question, I do thank you for contributing that one.

Can a preexisting injury negatively affect your impairment rating?

And the answer, the quick answer is yes. Preexisting conditions, I just saw we're on the same page to the same body part. If you hurt your knee playing football in high school and then you hurt the same knee last year or two years ago at work, yes, it can negatively affect your impairment rating if you did suffer from a permanent injury the first time, and that permanent injury was worsened. What we discuss here is what's known as apportionment. So it could be a 20-year-old accident, it could be a two-year-old accident. If you injured the same body part more than once, ultimately, you're going to want -- or the judge is going to want a determination as to apportionment -- how much of your overall disability today, now that you're sitting here with this 20, 30, 40% loss of use of the knee or the shoulder or whatever, how much of that is apportion-able to the old accident and how much to the new accident.

And again, very, very important to have a lawyer here because they're going to help make arguments that are going to help you. You know, there's an argument to be made that maybe you did blow out your knee in college playing football 20 years ago, but you've been working ever since you graduated college and you never lost any time from work, hypothetically speaking, because of that bad knee, it never impacted your ability to do work. You never had any negative effects of that old knee injury until now. And now this was the straw that broke the camel's back or it's this new accident that caused you to go out of work or it's this new accident that's causing you to lose significant amounts of time or require surgery.

So despite the fact that you might have had that old, old accident, maybe the argument is there to be made that the majority of your disability today is from the new accident and is compensable under that claim. So yes, preexisting conditions, apportionment is the buzz term that we're going to use there.

What if you disagree with an impairment rating in your com case? Is there a way to challenge it?

Well, we've got to talk about what stage of the game are we and where are we that you don't agree with the impairment rating. If you're just finishing your doctor and he follows your report and he says, "By the way, you have a 5% permanent loss of use of your knee or you have a relatively minor back injury." If you don't disagree with your doctor, that's between you and your doctor.

I'm not going to call your doctor and tell him that you don't like what he wrote. That's not any lawyer's place. It's improper. If you don't like what your doctor has to say, you need to talk to your doctor about that. Your lawyer is not going to get involved there. Your lawyer is going to take what your doctor says and use it to your advantage in the best way possible, but under no circumstances are we going to tell your doctor what to say. If you're at the stage where the judge has already made a decision as to your level of permanent impairment, there is a way to challenge you potentially could file an appeal. Now, a lot of different people say a lot of different things here with regard to appeals. Generally speaking, in the legal world, an appeal should be filed if the judge made a mistake as to his application of the law or his or a mistake as to his understanding of the facts. If you made a factual error or a legal error, then an appeal is warranted. Simply because you don't agree with a judge's decision doesn't necessitate an appeal, but it doesn't mean it doesn't happen. People still do it. But generally speaking, appeals come when there are errors in a fact and errors in law. That's when appeal comes to play. Excuse me.

What if your impairment worsens after a rating is assigned? Can your rating be reevaluated?

Generally speaking, once a judge has made a decision as to your level of permanent disability, and again, whether that's permanent partial disability in Elweck, schedule loss of use, generally it's very difficult to be reevaluated. We call it if it's a core body or reclassification, you need to show a significant change worsening in your condition in order to do that. It's very difficult because generally speaking, those impairment findings and those permanent disability findings are in consideration of what the future holds. You need to show that something different and much worse happened to you in your circumstance to warrant a reconsideration.

You need to show a significant worsening in condition in order to reach that level.

What can you do to get a more favorable impairment rating in your case? Are you allowed to get a second opinion?

Generally speaking, no. If you're at the level, the point in time in your case where it's time for permanency rating, you've reached maximum medical improvement. Your treating doctor is done treating, and it's that doctor that you're relying upon after he's seen you all this time and given you all this treatment to give you an opinion as to your level of permanent disability.

If you don't like what he has to say, and you go and run to another doctor and try to get a better opinion that helps you more, it's frowned down upon a lot. It's called doctor shopping and generally speaking, the insurance company is going to put up a significant fight if you do that at that point in time and the judge probably won't allow it. If you change doctors halfway through your treatment or at some point in time during your treatment, that's something that's a little more permissible because you're allowed to change your doctors the same way like we said earlier, you're allowed to change lawyers.

If you're not happy with the way your doctor's treating you, if you have a difference of opinion, if you don't like the treatment you're getting, or if you just don't like your doctor, you're allowed to change doctors. That's not necessarily getting a second opinion, that's starting to treat with a new doctor. So you are certainly allowed to do that, but you can't just go run around, seize many doctors as you want until one of them writes you a report that you find beneficial. That is not permissible.

Any pro tips for injured workers who will receive an impairment rating?

Yeah, pro tips. First and foremost, and I've said this in a hundred different videos, always be upfront and honest about prior accidents, prior injuries, prior conditions, the 20 year old knee injury from college, the car accident five years ago. Don't, even if it was minimal, let your doctors know about it, let the insurance company doctor know about it, let the judge know about it, get out in front of it. It's so much easier to get out in front of a problem and say, "Look, I had this car accident five years ago. I saw a chiropractor for about a month and that was it. I went back to work full duty. I felt fine, not a big deal, then to not bring it up and have the insurance company bring it up because when they bring it up, they're going to hammer you with it.

They're going to try to make you look stupid about it and they're going to make it seem like you're lying to the court and you're lying to the doctors and it's a horrible thing to do. Your case gets dragged out for months and months and months. You go through horrible, they're going to accuse you of fraud. You've got to stop your whole case, go through a fraud trial. It's so easy to avoid and you minimize the impact and negative impact by just getting out in front of it. It makes you look honest.

It's so helpful. Let your lawyer know, they'll tell you the best way to let everybody know, but very simply tell all parties involved that you had these old accidents, these old injuries, these old problems so that they don't become a problem later. It's better to take the small hit up front than to take a huge hit and potentially have your benefits suspended altogether for failure to tell them.

Similarly, when you go for an examination, whether it's your doctor or the insurance company doctor, be truthful in your answers to them and give them your full effort. If they think that you're not doing range of motion because, "Hey, recursate if my arm only goes this high, it shows that I have a permanent problem," they're going to know. They're doctors. They're not idiots. They're going to know that you're not giving your best effort and even if they suspect that you're not giving your best effort, they're going to mention it in the report. Do the best you can. Try to give them 100%.

It'll come through that you gave a good effort and despite that, whatever your limitations are, will be noted. They'll be noted without an asterisk or a note saying the patient did not give full effort or was malingering. You don't want that written in your medical reports anywhere because it's going to hurt you. So give your best effort. And lastly, like I said before, and I'm not just tooting my own horn here, get a lawyer.

Your lawyers know how to navigate the system. The lawyers know the rules. They know the laws. They know which injuries are worth depending on what circumstances you're in and you're not going to be able to figure that out on your own. You could. I'm not calling anybody here dumb. It would take a lot of reading and understanding to get to the point where you can understand which way to go given your neck back and shoulder injury. It's best to have a lawyer.

We've been through this. We know who we're dealing with. We know the rules and the laws. We know the players. We know the insurance companies. We know the judges. We know how to get through the system and get you the most based upon what you're dealing with. So it's very, very important. With that, we're going to go take a look at some of these questions here.

Okay. We're going to go over here for some questions. Bob. Bob has a fuse right wrist on his dominant hand. He makes $1,700 a week. What would my case be worth? I'm reaching the end of my workers comp. I'll be currently disabled. I was an automotive technician. Okay, Bob. So, and I see you throw in a couple other factors here. And always, thank you. You're welcome. Bob did his job for 40. He's 62. Bob has been a hardworking guy his whole life. And what is his case worth? More information is always helpful for us because we take what we need in reaching our determinations as to what the case value is.

Now, that being said, there is information here that's unfortunately not very useful. Dominant hand doesn't play a role in determining schedule loss of use. Your schedule loss of use is based upon your range of motion. And it's based upon special considerations, whether it's your dominant or non-dominant hand. So it stinks that you hurt your dominant hand.

And it's going to impact every day of your life from this day forward. But it doesn't mean a judge is going to, or a doctor is going to give you any more because of it, unfortunately. So the fact that your dominant hand is not going to play a role.

Reaching the end of your workers' comp, currently is able to automate a technician. Your job, unfortunately, when it comes to schedule loss of use, not going to play a role. The only two factors that are considered here in determining the value of that injury are your average weekly wage, your gross weekly salary, or it's the average of the one year leading up to your accident, and your loss of use.

Now, I am not a doctor. I'm not fully familiar with the medical treatment guidelines. I could go and check them out, but we don't want everyone here to wait for me to do that to determine if there is a special consideration for a fusion, a risk fusion.

But let's just say for argument's sake, you have a 50% loss of use of a risk. And a 50% which is a very high finding is 244 weeks. So 50% is 122 weeks of workers' compensation benefits. At a $1,700 average weekly wage, we're toying with the max rate, depending on what your date of accident is. Your max rate changes every year, so depending on your accident date, you may or may not be at or close to the maximum rate. But hypothetically speaking, if we're using a $1,000 rate in 122 weeks for a 50% disability, a fused risk, it means it's not moving, you're looking at a $122,000 reward. Prior payments come out. There's other factors here that play a role here. So based upon what you're telling me, you could have a very significant award, no pun intended on your hands, but we do need some more information in reaching that conclusion. It stinks, Bob, to have a fused risk, and there's no amount of money that's ever going to make you whole again, so I'm sorry for that. But I do wish you the best, and I thank you for the fantastic question.

Let's see what else we got here. Mr. Hunt,"I was hit by a driver at my job where I tore my meniscus on both sides of my left knee and bone bruises. What would my case be?"

So you have a left knee injury. You're going to get your treatment. You're going to get surgery if you need surgery. Hopefully, if your case is an established, compensable claim. And once you're reaching the point of max medical improvement, so hopefully, if you do need surgery, you get your surgery, you get your post-operative physical therapy, you get better, you get better. And at the one year mark, give or take, following your surgery, they're going to assess you for schedule loss of use. They're going to put you through range of motion testing.

Can you flex the knee? Can you extend the knee? Is there any instability side to side? How is your patella? Your kneecap? I'm pointing to my wrist. That's the elbow. All those things are considered, and they run you through schedule loss of use testing, and they figure out what your loss of use is going to be. The insurance company doctor is going to do the same thing. And like I said before, your doctor might be here and their doctor might be here, and your lawyer is going to try to get you somewhere in the middle, hopefully, closer to the top if possible. And the other factor is your salary.

So, I would presume that there would be some schedule loss of use, and again, it really depends on what your recovery looks like, how much better you get when you reach that point of maximum medical improvement.

Another question, "I got injured on the job, I had rotator cuff and bicep tendon injury, injection to my cervical spine, a lumbar spine."

So, this is one of the circumstances we discussed earlier where you have multiple injuries that overlap. You have the schedule loss of use, and you have the non-schedules. You have the shoulder, and you also have a neck and a back.

So, get all your treatment, once your injury is fresh and you're out of work, get all the treatment that you need. If you can make it back to work, great. Going back to work is not a bad thing. If you're able to work, it's going to be shown in your medicals, whether you do or you don't go back. If you're able to go back to work and you're choosing not to, the medical records from both sides are going to reflect it. You have gotten better to the point that you can do somewhere, so you should do it. Because working gets you more money than not working.

Working gets you more money than what comp is ever going to pay you. And then when it's time for a permanency determination, whether you're not working and you're neck and back, or the more significant injuries, or you are working and there's a significant shoulder loss of use, those assessments will be made at the time that you reach maximum medical improvement. And really depending on your particular circumstances, you might have a significant claim there. So I would certainly make sure you keep tabs, keep your lawyer up to date, make sure your doctor knows what's happening with your case, make sure your lawyer knows what's happening with your treatment so that you can make those decisions at the time when it's ripe and you can maximize your overall awards.

Certainly keep your lawyer in a loop there. Good question.

Another question, "What if you already reached MMI but later need a surgery?"

Well the insurance company paid for that surgery. Generally speaking, oh wow, that's a good question. If your surgery is related and it's related to your accident and your injury and it's part of the treatment, and was unforeseen at the time that you reached MMI and permanency was assessed, but it's determined later on that you do need a surgery. Generally speaking, yes, it would be paid for by the insurance company. It's subject to litigation.

They're probably going to give you a hard time. Your lawyer is going to have to litigate. But presumably if it's related and it's not related to anything else and your accident and your injury, the reason why this future surgery might be required, it should be covered. Unless you settled your case with what's known as a Section 32 Settlement.

We've done a bunch of videos on this in the past. Section 32, a full and final Section 32, closes your case out forever. It puts a neat bow and they pay you. Case closed, have a nice day. So even if your injury is 100% related to your underlying accident and your underlying injuries, if you settled your case with a Section 32, then you would be responsible to pay for the treatment or the surgery yourself from your settled in proceeds. When a case is closed with a full and final Section 32, the value of your future medical care is considered when the case is settled.

Whether it's a surgery, whether the party's new surgery was necessary or not, is a whole different story, but it should be considered. So again, generally speaking, if it's an open case and hasn't been settled with a 32, then yes, you should be able to get the insurance company to contribute.

Questions are rolling in, "How long does it take typically to take a judge to come up with a decision on an SLU award?"

Well, depending on where we're starting this timeframe, usually SLU, according to the medical treatment guidelines for determining permanent impairment, an SLU determination is generally one year after your date of accident or your date of surgery. They want to give you a year to convalesce, to get better, to reach maximum medical improvement. From that point, when the judges are getting involved in reaching their conclusions, it could still be another few months before a decision is made if you don't reach an agreement with the insurance company. Why is that?

Well, if a year goes by and finally your doctor renders his opinion on schedule loss and their doctor renders his opinion on schedule loss, then you submit those to the board. The board may or may not give you a hearing in front of a judge. They, oftentimes they don't. They administratively file a document. They send it to all the parties and they say, this side says this, this side says this. Either you work it out or you take depositions from the doctors and you have 75 or 90 days to take depositions. So there's three months right there.

And if you still don't reach a conclusion at any point in time, we're going to submit the depositions to the judge. We'll schedule another hearing and you're going to come back and make your arguments to the judge. That could be another six weeks beyond that date. And then if the judge makes a decision and you don't like it, guess what you're going to probably want to do. You're going to file an appeal. If the insurance company doesn't like the decision, they're going to file an appeal. And that could add months and months on as well. So it can take a long time, which is why it's always best to try to work it out. And it's always best to try to work it out with somebody on your side that knows what they're doing. So get a lawyer involved. And especially at that point in time, that's when your lawyer's skills really, really shine.

"What if the judge will give a 71% permanent partial disability?" Okay. The numbers aren't adding up there. That's 76%. And a 45%. The numbers are a little off for about $3,000. And the insurance company appeals, how long does it take to get a decision for the appeal?

Okay, well, I'm going to put aside your math there because it seems a little off and they're incompatible. A permanent partial disability finding is for the neck and the back. The 45 that you assigned for the shoulder, I would presume as a schedule loss of use finding, they don't go hand in hand. But if the insurance company doesn't like the judge's decision and they found an appeal, it can take a few months. I know that's not what you want to hear. I can make you feel a little bit better by telling you a couple of years back, appeals are taking a year. They're not.

The board is working a lot more efficiently now. They've got good people over there that are doing everything they can to get through these appeals, to make sound decisions. As much as some people want to yell and scream about the judges and the board, they're doing the best they can. There's a lot of hearings, there's a lot of appeals. Unfortunately, yours is not the only one. They have thousands of appeals pending and a very big backlog and they're doing a fantastic job of getting through them. But it still takes a few months. Unfortunately, just the way it is.

Okay. I have a question here on the Instagram. "Are you familiar with ADR, alternate dispute resolution? What are your thoughts on this?"

Okay, well, in New York State, ADR in the workers' compensation world, Rob 3000, thank you. I'm going to click out of your question, but thanks. In the New York State workers' compensation world, ADR generally refers to workers' compensation systems that are handled outside of general New York State workers' compensation. We see this with Local 3, the electricians' union. They have their own little system. They follow the same rules, the same laws as workers' comp, but they handle it themselves. They're self-insured. They have a mediator come in and we do it.

We basically handle the workers' compensation claim through their ADR process. And the rules are the same, the laws are the same, the procedures are a little bit different. It's a little quirky from time to time, but it's generally handled in the same manner, which can be frustrating sometimes, regardless of which form we're in. Danny, what if you need surgery after my mind? Oh, we did that one already. I hope I answered your question.

Mr. Hunt is back, "I was told I didn't qualify for FMLA. I was only working there for two months. I may be covered for an STD claim. Can you explain?" If STD is a standard claim, I hope we're talking about standard workers' compensation. FMLA is federal workers' compensation is state. There are two completely different sets of rules and laws, and you might qualify for one. You might not qualify for the other.

Being precluded or disallowed or barred from one does not mean you're barred from the other. I would certainly look to proceed with a workers' compensation claim in the state that you were injured. Just because you're not entitled to FMLA, similarly, just because you might not be entitled to social security disability, doesn't mean that you're not entitled to workers' compensation. They're very separate systems. Good question.

"What's the next step in your case after IME doctors and your treating doctors' depositions?" Okay, what happens after depositions? Well, from a lawyer's perspective, a lot of talking, from a lawyer's perspective, every step of the process should involve some degree of negotiation.

So, what I like to do is after depositions are done, sometimes I'll make a phone call or an email to the insurance company or their attorney or representative or the claims adjuster and say, "Hey, depots are done." And you don't want to get into too much of a... I'm going to use a bad word. You don't want to get into a pissing contest over who's right and who's wrong, but you want to say depots are done.

I think we did a pretty good job cross-examining your doctor. Maybe you want to reconsider the demand we sent, or maybe we want to work out a settlement here and put this thing to rest. Depots are done trying to negotiate, but if you're unable to reach an agreement with the insurance company, the next step is for a judge to make a decision.

Some judges require written summations where we put our arguments on paper and send them in. Some judges like oral summations where we request the hearing and we sit down in the hearing setting and we make our arguments to the judge. And the judge makes a decision as to what your level of disability is based upon the relevant factors, the depositions, the evidence in the file, and how persuasive your wonderful attorney was. So, that's the next step, generally following depositions. Okay. All right, I see some questions that are duplicating.

Bob, we talked to Bob earlier, I just want to pop this up. I see he asked another follow-up question. Bob was the gentleman, if I recall correctly, with the fused wrist, the auto mechanic. So, "I would not get permanent disability benefits for life?" Again, talk in New York State here, it depends. If your injury to your wrist, which is normally a schedule loss of use, a schedule injury, where the doctor is going to assess you for how much damage you have to the wrist, how much loss of use, if it's so, so, so severe, and I'm not downplaying your injury, I'm just saying it's because it is so rare, puts you outside the doctor can assess you for a non-schedule injury to your wrist and try to put you in that permanent partial disability category.

Certainly something to speak to your lawyer about and/or your doctor. Life-long disability benefits, under any set of circumstances, are only payable in one instance, and that's permanent total disability. You are no longer able to do any gainful employment whatsoever, ever again, for the rest of your life as a result of the injuries from that action. That's the only time you get life-long benefits. If we take you out of the schedule loss of use category, put you in the permanent partial disability category, and you're found to have a partial disability, the highest level of partial would be a 95%. That gets you benefits for a little more than 10 years, so life-long benefits are not, they're a thing in the past, unfortunately.

The changes in the law, I believe in '07, yeah, I'm pretty sure in 2007 we got rid of life-long benefits back in the day. If you had a 50% permanent partial disability, you got 50% of your rate of compensation for the rest of your life. If you had a 25%, you got it for the rest of your life. They change it now, now they have caps. Each level of disability that's attained comes with a cap, a certain number of years that you can obtain those benefits for. Life-long benefits are pretty much gone the way of the dodo word. Thank you again, I hope you feel better.

Another question, "Hi, I live in North CA, I'm assuming that's California, and I have a pinched neck, low back pain L4-5, L5, L5, L5, L5, S1. That's the next level below L4-5, and here's my little spine. L5-5, the point at the bottom is the sacrum, that's S1-5, L4-L3-L2-L1, and you work up to the top. Three star injections with 27, rate, motion, how much is my case?"

Okay, well, first, I don't know. I'm only licensed here in New York State. I do not know California workers' compensation law. I don't even want to try to guess, every state is very different, and I would certainly reach out to an attorney. If you need help finding an attorney, we work with a fantastic law firm in California that does workers' compensation. If you need help locating an attorney in California, feel free to give me a call, shoot me an email, whatever you want. I can help find you an attorney.

Like I said, we do work with a firm in California. They do a wonderful job. Their clients are always happy with their representation. If you need help, please let me know. That goes for, you know, we, through our quest to try to provide help to people everywhere. We do have working relationships with firms all over the country. Firms that we speak to on a regular basis that do a very wonderful job helping the injured workers in their state.

If you do need help with the case and you're not here in New York, then you want to give me a call. It's always a pleasure speaking with everybody, and I can help you find somebody who can help you out. I see on Instagram, Jeff, who was asking the questions before about ADR in Southern California. Now it's making more sense.

Again, Jeff, same answer. If you need help finding somebody, please let me know. Be happy to help. Okay. No payments. That's a great name there. You have to fight for that one. It was injured in May. No surgery. Broken calcaneus. The heel. You fractured your heel. Almost 60 visits to PT. Recently had injections still have more PT to go. Still getting compaying camp. Can't work. Broken calcaneus might be one of the most painful injuries that doesn't seem so bad that I've ever seen. We've seen these a bunch of times.

My father broke his heel many years ago, and I could still hear him. He was a very unhappy camper when that happened. Broken heels are bad. A heel is a foot, and this would probably be handled with a schedule of use finding when the time came that you reached max medical improvement. They take a while. The heel is a big heavy-duty bone. When it breaks, it takes a lot for that heel to get better.

Again, I'm not a doctor. I'm just telling you what I've gleaned from my years of dealing with broken calcaneus. It's a tough one. I feel for you, my friend. Make sure you keep your lawyer up to date as to what your treatment's looking like. Make sure your doctor knows what's going on with your case, and this will likely end in a schedule loss if we are in New York. I know Mr. No Payments. You're saying it's taken forever. It's taken forever. People ask me all the time, "How long is my case last? How long is this going to go on far?" I always tell them, "Your case follows you. Your case follows your injury, not vice versa. We're not going to tell you how long this thing is going to last, at least here in New York State. We follow you in your injury.

As long as you need your case to be there to provide you with the treatment and the benefits that you need, we follow you." A significant injury that takes forever, your case is going to take forever, unfortunately. Good luck, my friend. Feel better.

"I'm on Workers' Comp and I'm supposed to have an injection that was rescheduled since then. I've been given a surgical consult date. I'm on my doctor for the doctors. I saw at the hospital. What to do?"

Call your lawyer. Looks like you're getting differing. You might be getting differing opinions medically from different sources. Talk to your lawyer and figure out the proper course of action and the plan that's going to help you best so that you can get better, quicker, get back to work, and maximize what you can get. Get all the treatment that you need. Talk to your lawyers. Very, very important. Here's a good question. Simeon, you're tied with our friend from Raleigh. You get the other gold star because you're coming up with good questions today.

"Do I get compensated for an ugly scar after my bicep tendon surgery?" In New York State, a bicep tendon surgery, an arm surgery, the scar could be the most horrible looking thing. You don't get any additional money for the scar. The only way the scar is going to be compensable is if it limits the function of your arm. If that scar pulls on your shoulder joint, pulls on your elbow joint, limits your motion, then there is some compensation ability there because it's affecting the function of your arm. But just a visually horrible, ugly scar is not compensable in New York State unless it is on your face.

Facial scarring is compensable. A facial scar, according to the statute, if I recall correctly, is from your hairline down to your collar bones. There's a neck muscle that runs diagonally under your ears. It's from those two muscles forward. Collar bone up, ears forward. So it's going to be on your face and then you are entitled to it with a permanent facial disfigurement award. A one-time payment anywhere from zero to twenty thousand dollars up to the judge's discretion. Only time a scar is compensable. Fantastic question. Sorry you're having this issue, but you've helped educate the world, my friend.

A couple more questions here, "Once I settled my case and got paid, can workers come still follow me and spy on me?" The old, investigated. Can they? If you settled your case with a Section 32, I mean, the can, it's a very open-ended question. They can. They can do whatever they want. In fact, I would never expect a case closed with a Section 32 full and final closure, usually what the term settlement means.

They're not going to waste the money. Your case or any case is a bucket of money to an insurance company. And once they can seal that bucket up and get rid of it and not have to worry about it anymore, they're not going to add any more money to it. If your case is closed and there's nothing else that they can do here, they're most likely not going to spend any money on your case anymore. Now, are there exceptions here?

If you have a new case, if there's a different case, if you have a motor vehicle accident that happened years later, they might put surveillance back on you at some point in time. They might do other things like looking at social media, something that insurance companies do. They could show you parasailing, hang gliding, roller derbing, something that's inconsistent with your injuries. So yes, but listen, if your injuries are what they are and they limit you to the degree they limit you and you are who you are, there's nothing to worry about. If you're not being less than truthful, then you might have something to worry about. But the short answer to your question is generally speaking, once you're settled, don't worry about it.

A couple more here. "Can I be offered a settlement without MMI?" Yeah, I just had this discussion with a client earlier today. Yeah, you could potentially settle your case any point you want. We've had cases that were controversial by the insurance company, all sorts of fights about what occurred and who's responsible in this stuff. And the insurance company might turn and say, "Hey, you want X amount of dollars to just close this thing out right now and be done with it so we don't have to fight anymore?" It's certainly worth the consideration.

So a lot of cases reach that MMI point because it helps give us some information as to what the value is, but you can settle a case at any point in time, potentially. Some insurance companies won't do it, some insurance companies don't settle cases at all. There might be other factors here, but potentially you could settle a case at any point in time with or without an MMI finding. Danny, with the y'all flowers, thank you. Danny says, "I'm doing a wonderful job." Sir, and he gives me a thumbs up, Danny, I'm happy to help.

Another question, "My fifth metatarsal is fused after surgery, my right foot, how much should I settle for?" I need a lot more information than that, unfortunately. Schedule loss of use, your doctor is going to run you through some testing once you reach maximum medical improvement. Find out what your limitations are, your range of motion deficits. We also need to know what you're earning to give you an idea as to the overall value of your claim.

I also don't know if you're a New Yorker or not, I'm assuming you are, but there's a lot of other factors there. Mr. No Payments, our New York and Massachusetts similar, I have no idea. I know New York and New Jersey, which were side by side are very different. Every state has its own workers' compensation system.

Another question, "After an IME is a settlement offered, it's been a year already since."

It depends on what the nature of the IME is. A settlement could be offered. Some insurance companies might not ever offer a settlement. I get calls and emails every day from insurance companies saying, "Hey, is your client interested in settling your case? If so, send us a demand." And I like to play devil's advocate. "Hey, if you're so interested in settling your case, why don't you send me an offer that I could talk to my client about it?"

They might be more inclined to settle if there's money on the table. Sometimes they take debates, sometimes they don't, but a settlement is not always offered. If you're interested in settling your case, call your lawyer and tell him, "Hey, I had enough of this thing. Let's see if we can work out a settlement here. What's my case worth? Let's throw a demand at the insurance company. Let's see if we can resolve something with them and be done with this."

All great questions. You guys are fantastic. You keep me on my toes and I really enjoy trying to help everybody out. If anybody has any questions, please, always feel free to give me a call, 212-406-8989. We're getting calls every day and I'm so happy to help everybody. I hate the fact that you guys are getting hurt. I'm happy that I can't help you when you are in a bad place. I just want to help you through this complex process, get you what you're entitled to, maximize what your awards can be, get you all the treatment you need to get you better and let you move on with your life.

Have a great day everyone.

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