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LWEC & Incontinence

May 28, 2019 | MAD News, NYS Workers Compensation

It must have been 12th grade where I first became acquainted with incontinence. And no, it was through studying Dante’s Inferno and not some kind of bathroom emergency; back in the day, incontinence used to refer to the inability to control one’s self. A lack of self-restraint. The 2nd through 5th circles were thus populated: the panderers and seducers, the gluttons, the greedy and the spendthrifts, the angry and the sullen. It wasn’t until years later that I learned that polite euphemism had overtaken the original definition, such that many people only knew the term incontinence in the context of adult diapers.

In Workers’ Compensation, it’s a fact of life that some patients experience damage to the spinal cord, either as a result of their initial injury, an age-based progression thereof, or as a consequence of spinal surgery. As a result, some claimants end up with either diminished or outright loss of control of their bladder and/or bowel. While some claimant’s attorneys believe having such a consequential problem is a golden ticket to a total disability, and incontinence is clearly an aggravating factor, whether the claimant would have a total disability really depends on the other circumstances surrounding the claim.

In Aspen Dental, (WCB# G0484701, June 9, 2015), the Board didn’t do much beyond look at the claimant’s severity ranking (G) and the diagnosis of cauda equina syndrome with associated bladder and bowel incontinence before finding a permanent total disability. It probable helped that claimant’s doctor opined it would be reasonable for the claimant not to return to the workforce given her orthopedic, bladder, and bowel impairments, but the Board didn’t even look at the claimant’s age, let along any other mitigating factor despite containing them in the decision.

Of the 9 Board Panel Decisions since then which provided an opinion on LWEC/TID, 6 cases found a partial disability, 2 found a total disability, and 1 found TID. Citing our sources, the cases indicating a less than 100% LWEC were: Thomas J. Keohane, DDS, (WCB# G0483822, February 26, 2016), School Settlement, (WCB# G0383561, June 2, 2016), The Resource Center, (WCB# 80803428, July 12, 2016), NYC Housing Authority/NYCHA, (WCB# G0305567, August 11, 2016), Starwod Hotels & Resorts, (WCB# G0964480, February 14, 2017), and Episcopal Health Services Inc, (WCB# G0669626, May 24, 2017). In School Settlement, supra, the finding was in spite of the claimant having a bout of urinary incontinence while sitting on the examination table at the permanency exam.

In the first case the claimant was found to have a total disability, Mabsota, (WCB# G0304748, April 3, 2017), the claimant was previously classified with a 65% LWEC. A claim for consequential depression was thereafter made, and the carrier asked for an opinion on permanency in addition to causal relationship; their IME gave up a total disability, and neither the WCL or Board would let them wiggle out of it.

The second of the PTD cases is Nova Development, Inc., (WCB# 40604815, November 4, 2016). The claim was established for the back, a right inguinal hernia, consequential neurogenic bladder, urinary incontinence, along with consequential bilateral wrist and hand injuries. What sunk the carrier here was taking the deposition of the claimant’s pain management doctor, who didn’t even file a C-4.3, and opined a total disability on deposition. The Board found that doctor to be most credible because he saw the claimant in the context of all of his injuries. Also, as there was credible medical of a total disability, the Board didn’t have to take vocational factors into consideration.

In Collins Building Services Inc, (WCB# G1025058, April 13, 2018), the Board reiterated its prior holdings that a finding of a permanent total disability must be made on the medical evidence alone, and while the claimant had significant problems, he is physically capable of sitting and standing, although for limited periods of time, and can drive for limited periods of time as part of work duties. Turning to the claimant’s LWEC, the 66 year old man was born in Ecuador, where he didn’t finish high school, had limited English proficiency, and didn’t know how to use a computer, all on top of his urinary incontinence. In light of such aggravating circumstances, it’s little wonder a TID finding was made.

The most surprising thing from my review of these cases, beyond the low percentage resulting in a PTD or TID finding, was that strategic mishaps resulted in twice the number of findings as otherwise. To me, this is a good thing. It means that if we’re smart about the way we handle our cases, our chances of a total finding at permanency drops from 1:3 to 1:9 even when faced with a claimant with bladder/bowel issues. So play smart and don’t get angry, get MAD.

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