If your New York workers’ compensation case has reached the point where treating physicians have submitted final permanency reports, the Workers’ Compensation Board may schedule a hearing specifically to address permanency. Understanding what typically happens at that hearing — and how prior medical evidence factors in — can help you know what to expect.
What Happens Procedurally at a Permanency Hearing
Once both the treating physicians and the carrier’s medical consultants have submitted permanency findings, the Workers’ Compensation Law Judge (WCLJ) will typically do one of a few things at that hearing:
- Classify permanency on the record if the medical evidence is largely consistent.
- Direct the parties to depose the medical experts if there’s a meaningful dispute between the treating doctor’s percentage and the carrier’s IME percentage.
- Adjourn for further development of the record — additional testing, updated reports, or a tie-breaking consultant if the gap between opinions is wide.
It’s common for a case to not resolve at the first hearing specifically noticed for permanency, especially when there’s daylight between the claimant’s and carrier’s numbers. The Board frequently uses that hearing to set a schedule for depositions or briefing rather than decide right then and there.
If the Judge rules against you at that hearing, the decision is not final. You have 30 days from the filing date of the decision to seek Board review — the steps are set out in our guide to denied claims and appeals.
If you have more than one claim for the same body part, the permanency report raises a further question — how the impairment divides between the accidents. We cover that in apportionment between two workers’ compensation claims.
Will the Carrier Push for a Lower Rating?
Yes — this is standard, not a sign anything is going wrong with the case. Carriers routinely:
- Argue for a lower schedule loss of use (SLU) percentage or a more restrictive classification.
- Request an additional or updated IME closer to the classification date, particularly if the last IME is stale.
- Challenge the treating doctor’s methodology, such as which SLU guidelines edition was used or how range-of-motion findings were documented.
How Much Weight Do Prior IME Reports Carry?
This is the nuance worth understanding clearly: an IME finding of 100% temporary disability is not evidence of permanency and won’t carry weight in a permanency determination. Temporary total or partial disability findings speak to your condition and work capacity during the healing period, while permanency findings — schedule loss of use (SLU) percentages or non-schedule permanent partial disability classifications — require a separate medical opinion specifically addressing maximum medical improvement (MMI) and the permanent residual impairment after treatment has concluded.
Where prior IMEs can be persuasive is more indirect: if the carrier’s own doctors consistently found severe impairment during the temporary period, that history can support the plausibility and consistency of the treating doctor’s later permanency rating — but it’s supporting context, not a substitute for a proper permanency opinion, and a WCLJ or carrier’s attorney will treat it that way.
Talk to a Workers’ Comp Attorney Before Your Permanency Hearing
A same-day permanency decision is possible if the treating doctor’s rating and the carrier’s medical evidence are close, but it’s more typical for the carrier to contest the percentage and for a hearing to lead to depositions of the medical experts before classification. Having an attorney who understands how to prepare for that process — and how to respond if the carrier pushes for a lower rating — can make a meaningful difference in the outcome.
The Law Offices of Frank J. Dito, Jr. represents injured workers throughout Staten Island and Brooklyn in workers’ compensation cases, including permanency hearings and classification disputes. Contact us today at 718.701.2776 for a free consultation.
For the earlier hearings in a case — the first one, and what is expected of you there — see what happens at your workers’ comp hearing.
This post is for informational purposes only and does not constitute legal advice. Every case is different — contact our office to discuss the specific facts of your situation.
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