WCA Responds to Agency “Legal Intern” Proposal 

On May 23, 2018 the New York State Workers’ Compensation Board released a proposed regulation that would permit it to “hire and supervise” third-year law students to represent injured workers in claims before the Board.  The WCA vigorously opposes this proposal for many reasons, including:

(1) There is no provision for employers or insurers to be represented by law student, or limiting employers or insurers to law student representation where the injured worker does not have an attorney.  The regulation would place injured workers at an enormous disadvantage against experienced defense lawyers.

(2) It is a clear conflict of interest for a law student to appear before the very agency that hired and trained the student and is supervising his or her appearance before it.

(3) To the extent the Board has identified lack of representation in “medical-only” cases as a reason for the proposed regulation, there is a much better solution:  Provide a mechanism for attorneys to be paid in such cases – just as the NYS Department of Labor recommended a decade ago, but the Board has taken no steps to accomplish.  Attorney fees could be paid by the employer or carrier, the health care provider who benefits from the representation, or a fund maintained by the Board.

You can read a full set of the WCA’s comments here.

Proposed Schedule Loss Guidelines End Compensation for Permanent Injuries

The WCA has published a report comparing how 17 injured workers fare under the impairment guidelines that have been proposed by the Workers’ Compensation Board as compared to the current guidelines.  The WCA found that:

  • Five out of seventeen workers would receive no compensation for their permanent injury based on the IME’s assessment of their injury under the present guidelines.  Under the proposed guidelines, fourteen out of seventeen workers would receive no compensation for their permanent injury.  One worker would receive less than $50, bringing the operative number to fifteen out of seventeen.
  • Of the two workers who would receive schedule loss benefits under the present guidelines, one award is reduced by about 75%.
  • Only one out of 17 workers would receive benefits under the proposed guidelines that are comparable to the award under the current guidelines.
  • Under the current guidelines, 15 out of 51 outcomes result in no compensation; 22 of 51 result in payment of $25,000 or less, and only 4 of 51 result in a payment greater than $50,000.
  • Under the proposed guidelines, 42 out of 51 outcomes would result in no compensation; 5 of 51 result in payment of $8,000 or less (three of those being under $50); and 4 of 51 result in a payment greater than $10,000.
  • Overall, under the present guidelines 36 of 51 outcomes would result in an award of at least $3,000, while under the proposed guidelines 45 of 51 outcomes would result in no or virtually no compensation.
  • The average award under the current guidelines is $18,873.63, and the median is $8,000.  The average award under the proposed guidelines is $3,023.29.

It is clear that the implementation of the proposed guidelines would have a devastating impact on compensation for injured workers.

The full report is available HERE.


On April 10, 2017, the New York State Legislature directed the Workers’ Compensation Board to “consult with representatives of labor, business, medical providers, insurance carriers, and self-insured employers regarding revisions to permanency impairment guidelines … [which] shall be reflective of advances in modern medicine that enhance healing and result in better outcomes.”

On September 1, 2017, the Workers’ Compensation Board issued a group of proposed regulations and a draft of new “impairment guidelines.”  Taken together, the proposed regulations and guidelines would:

  • Significantly impair the ability of injured workers to offer evidence in support of their claims and to obtain fair and just compensation.
  • Render injured workers subject to intimidation and investigatory abuse by employers, insurers, and the so-called “independent” medical examiners they employ.
  • Drastically reduce, and in most cases eliminate, compensation for permanent injuries to limbs, including: fractures; torn ligaments, tendons, and cartilage; dislocations; and surgery up to and in some cases including total joint replacement.
  • Improperly permit the Board to substitute its judgment for the provisions of the law.

The Board’s proposals completely disregard the Legislature’s direction to update its guidelines based on “advances in modern medicine.”  Instead, the Board engaged in a wholesale revision of its forms, process, regulations and guidelines in a manner calculated to eliminate compensation benefits for injured workers.

It remains the WCA’s position that there is no cost-based, medical-based, or justice-based reason for these proposed changes.

A summary of the WCA’s comments on the proposed regulations and guidelines can be found HERE.

The full WCA analysis of the proposed regulations and guidelines can be found HERE.



The WCA has released a new paper refuting the claims of the Business Council that employer costs are rising (either in general or for schedule loss of use awards) and that the existing Workers’ Compensation Board impairment guidelines are “outdated.”

To the contrary, the data shows that workers’ compensation costs are lower today than they were two decades ago, and were just reduced by nearly a half billion dollars. In addition, schedule loss costs have remained flat for twenty-five years, with the exception of four years in which benefits were increased for middle- and high-wage workers in exchange caps on permanent partial disability payments, which saved employers a billion dollars.

The WCA report also shows that – contrary to the Business Council’s contention – the existing impairment guidelines in fact account for advances in medicine, and reduce awards as outcomes and functional capacity improve.

Finally, the WCA report reminds the Workers’ Compensation Board that the vast majority of workers believe their compensation benefits are inadequate under the present system, and that further benefit cuts would only exacerbate the existing unfairness and inequity to injured workers.

The full WCA report is available HERE.