• Symptom Magnification and Schedule Loss of Use
  • February 25, 2019 | Author: John W. Becker
  • Law Firm: Goldberg Segalla LLP - Albany Office
  • In New York, work-related injuries to an extremity, such as the hands, arms, legs, fingers or toes, often result in awards associated with a permanent impairment of said extremity. Under the Workers’ Compensation Law, an injured worker may be entitled to monetary benefits for such an impairment, which are referred to as awards for schedule loss of use.

    A claimant bears the initial burden of producing a medical opinion to pursue awards for schedule loss of use. This is accomplished by having his or her doctor perform an examination and submit a report (Form C-4.3) stating whether the claimant has reached maximum medical improvement and listing a value for schedule loss of use of an extremity. The value for schedule loss of use of an extremity, which is expressed as a percentage, is controlled by the Workers’ Compensation Guidelines for Determining Impairment (First Edition, November 22, 2017).

    More often than not, our clients arrange for claimants to be examined by their own consultants to address the issue of schedule loss of use. Issues arise where a consultant provides schedule loss of use findings in excess of our expectations and/or the findings of a claimant’s doctor.

    Of note, the value to be assigned for schedule loss of use of an extremity is often determined by the range of motion demonstrated by the claimant at an examination. Thus, clients often question whether a claimant magnified his or her symptoms and voluntarily limited his or her range of motion at an IME.

    Proving that a claimant voluntarily limited his or her range of motion can be a difficult task. Often times, a consultant will report that he or she suspected that a claimant was voluntarily limiting his or her range of motion during an IME. However, this does not guarantee that a judge will credit such a finding. Ultimately, the best arguments in favor of a finding that a claimant voluntarily limited his or her range of motion during an IME are supported by additional evidence that he or she performs activities or tasks that demonstrate a range of motion in excess of what was measured during the IME.

    Of note, where an injured worker is found to have a causally-related schedule loss of use of an extremity, he or she may be entitled to indemnity benefits regardless of their work status. Thus, it is common for a claimant to return to work for the employer of record following an injury. Therefore, our clients are often surprised when a claimant is found to have a significant schedule loss of use of an extremity based on deficits in range of motion when the claimant returned to work for the employer of record post-accident.

    In order to protect our clients from the potential risks associated with a claimant voluntarily limiting his or her range of motion during an IME, we recommend taking steps to investigate and monitor a claimant’s activities post-injury.

    In the case of an injured worker who returns to the employer of record post-accident, we recommend providing the consultant with a copy of the claimant’s job description prior to the IME. We also recommend identifying a supervisor or co-worker who can testify as to witnessing the claimant performing his or her job duties in the days leading up to and/or after the IME.

    If possible, we also recommend obtaining footage of the claimant performing his or her job duties in the days leading up to and/or after the IME. If the evidence of the claimant performing his or her job duties clearly demonstrates an ability to use the extremity in excess of the range of motion measured at the IME, then we will have a stronger basis to argue that a claimant misrepresented his or her condition by voluntarily limiting range of motion during the IME.

    Ultimately, if we demonstrate to a judge that a claimant voluntarily limited his or her range of motion during an IME to address the issue of schedule loss of use, then we can advocate for a direction for the parties to obtain new permanency opinions, leverage the claimant’s misrepresentation to negotiate a favorable stipulation or settlement agreement, or pursue a fraud finding depending on the severity of the misrepresentation.