Workers' Compensation Alliance Comments on the 2012 Guidelines

The Workers’ Compensation Alliance has reviewed the 2012 Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (2012 Guidelines) (a copy of the Guidelines can be found here).  We note with approval the continuation of schedule loss criteria from the 1996 Guidelines.  These criteria have served participants in the system well for decades and no compelling argument has been presented for any alterations or revisions.

 

The WCA recognizes that the medical impairment guidelines are adopted in their entirety from the September, 2010 report from the New York State Insurance Department.  The WCA comments regarding that report can be found here.  The Board has, however, added a “crosswalk” that permits severity ratings for different body parts to be compared on a 0-6 scale. 

 

The 2012 Guidelines repeatedly state that medical impairment does not translate into loss of wage earning capacity, and that worker’s compensation benefits depend on the loss of wage earning capacity, rather than medical impairment.  This represents a significant shift from present workers’ compensation practice, which tends to minimize the consideration of functional loss and vocational factors except in rare instances (claims for total industrial disability).

 

The Insurance Department’s Task Force and Advisory Group specifically designed its medical impairment guidelines to prevent comparison of severity rankings across body parts in order to assist in shifting the system’s focus from medical impairment to loss of wage earning capacity.  The WCA is concerned that the Board’s creation of a “crosswalk” will undermine this goal.  Instead of converting medical impairment into a series of letter rankings that cannot be translated into traditional “degrees of disability” as intended by the Task Force and Advisory Group, the “crosswalk” facilitates such translation.  It is therefore of critical importance that in training its personnel the Board place a strong emphasis on the multiple portions of the 2012 Guidelines that prohibit conversion of medical impairment into compensation benefits and which require consideration of other factors.

 

The WCA is generally supportive of those portions of the 2012 Guidelines that mandate evaluation of the impact of functional loss and vocational characteristics on loss of wage earning capacity.  The WCA commends the Board for recognizing that there are few employment options available for many workers who are limited to sedentary work as the result of occupational injury.  Such workers have little if any earning capacity and must be protected by the workers’ compensation system.

 

The WCA regrets the lack of guidance in the 2012 Guidelines regarding the respective weight of medical impairment, functional loss, and vocational factors, as well as the specific weight to be accorded to any given vocational factor.  The WCA recognizes that this approach permits an individualized assessment of each injured worker.  However, the absence of guidance may well result in dissimilar outcomes in otherwise similar cases due to the variability inherent in the litigation process. 

 

If the 2012 Guidelines are applied so that full and fair weight is given to the impact of functional loss and vocational factors on wage earning capacity, then the system may well achieve more substantial justice than it has in the past when inquiry was limited largely to medical impairment.  If, however, the Board fails to properly emphasize the impact of functional loss and vocational factors, or if those factors are accorded insufficient weight in the ultimate determination, then substantial loss of benefits may occur due to the minimization of medical impairment under the new guidelines.

 

The WCA will continue to monitor the implementation of the 2012 Guidelines and comment as appropriate.

 

Special Note:  The WCA will be conducting its second Continuing Legal Education Seminar (in conjunction with ACE-CLE) on November 18, 2011. 


 

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