At the April 15, 2008 meeting of the New York State Workers' Compensation Board ( see web-cast here), one of the nation's preeminent scholars on workers compensation systems, Prof. John F. Burton, declared in no uncertain terms that the AMA Guides to the Evaluation of Permanent Impairment are "hokum" and "not evidenced based". He attributed their controversial yet wide spread use in other states in part to a desire for simplification of complex issues, and a political move to lessen actual wage loss benefits to injured workers. In fact, during the web-cast several of the Workers' Compensation Board Commissioners joked that "hokum" was a Mid-west term, and we had another term for "hokum" here in New York!
When John Burton talks on workers' compensation, people listen! He is the former Dean of the School of Management and Labor Relations at Rutgers University, and before that was a full Professor at both Cornell's School of Industrial & Labor Relations and the University of Chicago (the Alma Mater of our own Workers' Compensation Board Chairman, Zachary Weiss). Importantly, he was also the Chairman of the National Commission on State Workers' Compensation Laws and his newsletter is required reading for the top experts in the industry.
During his speech to the Workers' Compensation Board, Prof. Burton implored New York State policy makers to "do it right" and craft medical guidelines that adequately address "loss of earning capacity" rather than just "impairment". He said this process could take a few years and would probably require the appointment of a special commission by Governor Patterson for this purpose.
Prof. Burton specifically approved of Section 15 (3) v - an underused provision of the current New York law which survived the reforms of last year. Section 15 (3) v allows a claimant to petition for additional cash benefits after his original "scheduled award" runs out, if he can show an ongoing causally related loss of earnings.
Give substantial credit to Workers' Compensation Board Chairman Zachary Weiss for inviting Professor Burton to shed light on the current AMA Guides debate in New York. On a number of issues (the self-insured trusts scandal, the crane accident rapid response team) - we are learning that Chairman Weiss is most interested in good policy to protect injured workers, and is willing to stand up to political pressure to "do the right thing".
Given Prof. Burton's even handed and scholarly presentation to the New York Workers' Compensation Board, it is unlikely Bruce Topman and the State Insurance Department can ever resurrect even "AMA-like" guidelines in New York. In fact, Prof. Burton suggests revamping the current objective 1996 Medical Guidelines for the time being. The New York AFL-CIO is meeting with Mr. Topman and his boss, Eric Dinallo, on April 30th to discuss medical guidelines. We will report back on this issue then. Stay tuned...