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.



As the Workers’ Compensation Board prepares to release a proposal that is expected to revise its impairment guidelines to slash compensation for permanent injuries to limbs, it is crucial that it hear the voices of injured workers.  Between May 16, 2017 and August 3, 2017, the WCA conducted a survey seeking the views of injured workers about their schedule loss of use awards.  Over 1,500 injured workers responded to the survey, 847 of whom had a workers’ compensation case that involved a schedule loss award within the past five years.

Key findings from the survey are:

  • 69% of injured workers believed that their schedule loss evaluation was too low under the present guidelines.  30% believed it was fair, and only 1% believed it was too high.
  • 75% of injured workers believed that the money award they received was inadequate.  24% believed it was fair, and again only 1% believed it was too high.
  • 75% of injured workers believed the award did not represent adequate compensation for their injury, while only a quarter believed it was fair.
  • 81% of injured workers believed that the award did not adequately compensate them for wage loss resulting from their injury; only 19% believed it was adequate.

Low-wage workers are treated even more unfairly under the present guidelines.  The survey showed that:

  • 76% of low-wage workers believed their schedule loss evaluation was inadequate, compared to 65% for all other wage groups.
  • 81% of low-wage workers believed that the money award they received was inadequate, compared to 71% and 72% for the other two wage groups.
  • 82% of low-wage workers believed that the award did not represent adequate compensation for their injury, compared to 70% and 72% for the other two wage groups.
  • 88% of low-wage workers believed that the award did not adequately compensate them for wage loss, compared to 77% for the other two wage groups.

In arriving at any revision to its guidelines, it is important for the Board to bear in mind that the overwhelming majority of injured workers believe that the benefits provided under the existing guidelines are grossly inadequate.[1]  Low-wage workers in particular feel that they are treated unfairly and undercompensated under the existing guidelines.  Any downward revision to permanency evaluations would exacerbate injustices that already exist, would result in low-wage workers receiving lower benefits than they received twenty-five years ago, and would eviscerate the bargain underlying the 2007 reforms.

The full report, including hundreds of comments of injured workers, is available HERE.


New York, NY – February 21, 2017 – The New York Workers’ Compensation Alliance has released a new paper analyzing new reports from the insurer-based New York Compensation Insurance Rating Board, the United States Department of Labor, and the National Academy of Social Insurance.  The extensive data in this trio of reports clearly establishes that employer costs for workers’ compensation and benefits for injured workers are at historic lows, while insurer profits are skyrocketing. Continue reading "WORKERS’ COMP EMPLOYER COSTS, WORKER BENEFITS AT HISTORIC LOWS – INSURER PROFITS RISING"


For the past several years, business and insurance groups have sought to persuade the Workers’ Compensation Board to cut benefits for injuries that result in permanent loss or loss of use of a limb.  These are known as “schedule loss awards,” and apply in cases such as limb amputation, fracture, surgery, loss of vision and hearing, and other permanent damage. Continue reading "WCA RELEASES NEW PAPER ON SCHEDULE LOSS COSTS 1992 – 2016"

WCA Releases New Paper on Schedule Loss of Use Costs

Business and insurance groups including the Business Council of New York State have recently advocated for drastic reductions in workers’ compensation awards for “schedule loss of use.” These awards are payable to workers who suffer from permanent loss or loss of use of limbs, vision, or hearing. To justify their campaign, business and insurance interests contend that these awards are now “skyrocketing” as a result of the 2007 legislative reforms.

To the contrary, however, a review of cost trends in schedule loss cases from 1992 through 2015 shows that costs related to these cases were flat from 1992 to 2007. There were moderate increases from 2007 through 2012 that affected an ever-smaller portion of the workforce. Since 2012, however, costs in schedule loss cases have again been essentially flat. The data showing that there has been virtually no change in schedule loss costs for the past four years casts serious doubt on the validity of industry claims.

The WCA has just released a new paper analyzing the data and proving that the schedule loss of use costs have increased less than one-half of one percent in the past four years.  You can read the paper here.

SLU Costs Press Release

PBM Press Release


On November 14, 2016, the WCA wrote to the Workers’ Compensation Board commenting on the Board’s recent proposals to create a formulary for prescription medications and to require insurers to contract with pharmacy benefit management companies.  The WCA expressed concerns about the impact the proposal would have on the availability of appropriate treatment for injured workers in a timely manner, as well as with the potential for increased system costs as yet another insurer-side “cottage industry” is developed to divert employer premium dollars from injured workers.

The WCA comments can be read here. PBM Comments

NY Workers’ Compensation Alliance Position Paper on Pataki Bill


Position On Governor Pataki's Proposed Changes To
The Workers' Compensation System
Budget Bill Article VII A.9561/S.6461

The New York workers' compensation system is in need of changes to keep pace with the cost of living and to effectively deliver the basic medical benefits promised to injured workers by the State Constitution. In recent years it has become commonplace to accuse the current workers' compensation system of providing too little in the way of benefits to injured workers while costing employers too much. Both of these criticisms are well founded. Unfortunately the legislation currently proposed by Governor Pataki will not provide the promised relief either to injured workers or to business.

The Governor's proposal is INADEQUATE. It provides too little in benefit increases to injured workers and contains no guarantees that it can deliver relief from the high cost of workers'
compensation insurance.

The Governor's proposal is INSENSITIVE to the real needs of injured workers and to the plight of small businesses in New York.

The Workers' Compensation Alliance (WCA) is made up of legal professionals with extensive background working within the New York workers' compensation system. We are comprised of over thirty law firms and corporations throughout the State that represent and provide service to injured workers We believe the workers' compensation system can be successfully modified to
meet the needs of New York's injured workers and at the same time deliver cost savings to New York business.

- The WCA strongly favors a genuine benefit increase to injured workers. The WCA strongly opposes any attempt to reduce current benefits to injured workers by limiting the
scope of permanent disability benefits

- The WCA strongly favors changes in the way medical benefits are delivered injured workers that will also yield significant cost savings to employers. The WCA believes
that real cost savings are possible but that they should not be found at the expense of the injured workers the statute has always served.

- The WCA strongly favors the absolute right of the injured worker to have his or her day in Court before a Judge. The WCA thus strongly opposes efforts to erode the due process guaranteed in the statute.

This paper will explore each of these areas in some detail. We will show (1) why a benefit
increase is needed and what would be necessary to provide genuine economic relief to injured workers. We will show (2) why cost savings should not be achieved by reducing basic economic benefits to injured workers, but should be focused on control of the real cost drivers of the system. Finally,we will show (3) why it's important not to take away the injured workers' due process right to a hearing before a Judge, currently guaranteed in the State Constitution.

Why the Governor's Benefit Increase is Inadequate

In his proposal Governor Pataki seeks to raise the maximum rate of workers' compensation benefits from the current $400 per week to $500 per week by increasing the maximum rate by $25 per year between now and January 1, 2009. The Governor's proposal is both misleading and inadequate. It will actually leave injured workers in a position worse than they were on July
1, 1992 when the last increase in the workers' compensation maximum took effect.

Currently,the maximum workers' compensation rate in Connecticut is $931 per week and in New Jersey is $891 per week. Injured New York workers deserve benefits that will not force them into poverty.
A maximum rate of $500 in 2009, when adjusted to 1992 dollars will be significantly below what is necessary for the workers' compensation rates to keep pace with increases in the Consumer
Price Index (CPI). As computed by the Federal Reserve Bank, in order for the maximum compensation rate in 2004 to have the same purchasing power as it had in 1992 the rate should already have been raised to $538.56. The proposed maximum rate that would not become
effective until 2009 is only 92.8% of what the rate should have been in 2004 to keep pace with inflation. As prices continue to rise between now and 2009 the Governor's proposed rate increase will represent less and less real purchasing power to injured workers.

Any real increase in workers' compensation maximum benefits should be tied to the state average weekly wage. Workers' compensation lost wage benefits are calculated as a percentage of average weekly wage. From the beginning of the New York workers'
compensation system in 1914 it has been widely acknowledged that workers' compensation benefits should equal two-thirds of a person's actual average weekly wage. The last benefit
increase in 1992 was calculated to achieve this goal
. Any current modification of the workers' compensation maximum rate should do the same. According to the New York State Department of Labor, in 1992 the state average weekly wage was $623.22. This meant that in 1992 the maximum workers' compensation rate was approximately 64.2% of the state average weekly wage. By 2004 the state average weekly wage had increased to $960.64 leaving the maximum workers' compensation rate of $400 to represent only about 41.6% of the state average weekly wage. To keep pace with the increase in the state average weekly wage the rate in 2004 should have been increased to $616.57. If the governor's proposal is enacted by 2009 the maximum workers' compensation rate of $500
will be only about 52% of the 2004 state average weekly wage.

The Governor cynically claims that his proposal constitutes a 25% increase in the maximum workers' compensation rates. In
fact, under his proposal the injured workers of New York State will be worse off in real dollars in 2009 than they were in 1992.
It has been 16 years since the Legislature addressed the question of the maximum benefit in workers' compensation. In the last 12 years achieving an increase of the maximum benefit has been a stumbling block for other real reforms in the workers' compensation system. The only way to avoid this type of deadlock in the future is to permanently tie the maximum workers'
compensation benefit directly to the state average weekly wage

For this reason the Workers' Compensation Alliance asks the Legislature to consider permanently linking the maximum benefit level for workers' compensation to two thirds of the state average weekly wage as computed by the New York State Labor Department.

Why basic economic benefits to injured workers should not be reduced

The most objectionable aspect of the Governor's proposal is the drastic reductions in benefits paid to permanently disabled injured workers. Under the Governor's proposal persons who have become permanently disabled due to a workplace injury would be completely cut off from wage loss benefits after a given number of years.

The Governor's proposal offers no alternative source of benefits to permanently disabled injured workers. It offers no help in rehabilitating permanently disabled injured workers. It simply tells injured workers who have lost their livelihood that they are out of luck. After the prescribed period of benefits, the economic security of the injured worker will become the responsibility of county and local government
welfare systems

The apparent rationale for these proposed cuts to wage loss benefits is that paying benefits to persons who have a permanent disability is expensive. There is no doubt that such payments are expensive, but it is also the right thing to do. The Workers' Compensation Law in New York has historically promised workers who have been severely and permanently injured they will not
die in poverty
. The Governor's proposal is nothing short of a cruel abandonment of the most seriously injured.

To understand how the Governor's proposal would affect permanently disabled workers consider the case of Mark, a 35-year-old pipe fitter. Mark was working at a high wage construction job making more than $1200 a week when a hose from a compressor broke loose and struck him in the back of the head. Mark suffered a severe traumatic brain injury. Even
after the best medical treatment available Mark will never be able to return to work
. Indeed, Mark has been granted Social Security disability benefits because the federal government has
decided that he's unemployable. Under the current wage loss limits in the Workers' Compensation Law Mark receives $400 a week, the maximum possible. He has lost his home, his vehicle and his marriage. He had to declare bankruptcy. Once he started receiving Social Security disability benefits he was able to begin rebuilding his life because when combined with his continuing workers' compensation benefits he could now afford a basic standard of living. If he loses his weekly workers' compensation benefit, even the most basic lifestyle will be

Or consider the case of Anne, a 45-year-old Emergency Medical Technician who worked at Ground Zero for three months after 9/11. Anne was earning more than $1000 a week and was a member of the EMT union. She was a "first responder" and is considered a hero by all accounts. In 2003, Anne developed a persistent cough that would not go away. She sought treatment from pulmonary specialists who informed her that she has Chronic Obstructive Pulmonary Disease as a result of the toxins she inhaled at Ground Zero. Anne was prescribed multiple medications and tried to continue to work. However, as her disease progressed, and given the physical nature of the job, she soon had to stop working as an EMT permanently. If
she ever works again it will be for much less of a wage that she made as an EMT. Anne needs the permanent reduced earnings benefits provided by Workers' Compensation to survive.

Under the Governor's proposal Mark's and Anne's benefits would be ended after somewhere between 5 and 10 years of payments. The Governor's proposal would simply take away
necessary income replacement benefits from these permanently disabled workers. This loss of benefits will render these permanently disabled workers poverty-stricken and require them to
seek assistance from the welfare system. How fair is that to these seriously injured workers?
How fair is the cost shifting to the average taxpayer?

Until and unless some solution is proposed that would guarantee the economic security of permanently injured workers, they should not be asked to fund insurance company profits or to
make an enormous sacrifice so that workers' compensation insurance can be slightly more affordable.

While there is no question that workers' compensation insurance needs to be made more affordable in New York, it is simply not right to ask the most seriously injured workers to be the
source of lower insurance premiums
. The Legislature should seriously investigate other ways to lower premium costs. Some such ways are proposed in the Governor's legislation. The WCA
supports the proposed measures to lower medical costs by imposing new fee schedules and by reducing the amount of time it takes to get approval for medical services
. The WCA also supports increasing innovative occupational safety programs and tax incentives for the safest employers. Surely there are more innovative ways to reduce the cost of workers' compensation
insurance that do not demand the impoverishment of hard working New Yorkers who have had the unfortunate luck to be injured on the job.

Why the due process right to a hearing should not be reduced

Given the urgency and gravity of the lost wage and medical concerns that face a worker who is injured on-the-job, injured workers and those who employ them are currently guaranteed an
adjudicatory hearing
, held at a meaningful time and in a meaningful manner. Section 20(1) of the Workers' Compensation Law provides that a hearing "shall" be ordered "upon application of
either party."

The Governor's proposal would eliminate this absolute right to a hearing by amending Section 20 of the Workers' Compensation Law to allow for the scheduling of a hearing before an administrative law judge only after it is determined that the dispute cannot be resolved by undergoing non-binding "conciliation" procedures. This proposal is inconsistent with the due
process rights of both injured workers and employers. Not only does the governor's proposal eliminate a fundamental right of the parties in workers' compensation litigation, it does so for no real reason. This change will not result in any savings and will only prolong the time needed to resolve central issues; not a good bargain.

Not only does this proposal violate fundamental due process rights but it proposes to require use of a system of non-binding conciliation meetings that has already shown itself to be a failure
in resolving the common controversies that exist in many workers' compensation cases. The conciliation process was instituted as part of the reforms of 1996. Since that time experience with the conciliation process shows it is inappropriate for resolving any true controversy. In fact, the Workers' Compensation Board currently uses the conciliation process only after the Board itself has determined that no true controversy exists. For this reason any statistics about the so called success of the conciliation process are deeply misleading. In fact, each and every time the conciliation process has been applied when a true controversy exists it has failed.

There's no doubt that there is a place in the workers' compensation system for the conciliation process. Conciliation can be used effectively where the parties are in fundamental agreement.
However, is not uncommon that diametrically opposed positions that are not susceptible to negotiation and compromise are raised on fundamental issues in a case. To require that such fundamental disputes first undergo non-binding "conciliation" before being allowed an adjudicatory hearing imposes on the injured worker the burden of undergoing a wasteful and time-consuming layer of proceedings before any real opportunity for relief can be reached.

Take the common example of a construction worker who falls on-the-job and injures his shoulder. Because the treating physician believes the injury to be a rotator cuff tear, the
diagnostic test typically ordered is an MRI. If the MRI is positive, the injured worker will undergo surgery; a negative test means a course of intensive physical therapy. Any delay in diagnosis
risks a frozen shoulder.

If the MRI is granted shortly after the injury, the recovery time is usually six weeks or less. If the carrier refuses to authorize the MRI, the injured worker's only practical recourse is to request an adjudicatory hearing. The precious time spent first attempting to
"conciliate" the matter will cost the claimant at least a four-month delay in being allowed the only practical opportunity he has to achieve a successful resolution of the dispute at an evidentiary
hearing. Unfortunately, during all of this time, the injured construction worker will have had little or no use of his painful arm, will be out of work and suffer a dramatic reduction in his wages, and ultimately have a diminished opportunity to completely heal. This unfortunate scenario will be played out time and again if the Governor's proposal is passed into law.

The fundamental requisite of procedural due process is the opportunity to be heard, by way of a hearing provided at a meaningful time and in a meaningful manner. There are few instances where the urgency to obtain relief is as profound as in a Workers' Compensation case. Unimpeded access to an adjudicatory hearing is the only effective means available to an injured
worker to obtain the lost wage and medical benefits that are so desperately needed.

Detailed analysis of the proposal

For the above reasons, the WCA takes the following positions on the Governor's proposed Article VII legislation, A.9561 and S. 6461, to amend the Workers' Compensation system:


1. An increase in the maximum weekly benefit, and believes that benefits should be permanently set at two thirds of the state average weekly wage. We also support the
proposed increase in the disability insurance benefit level.

2. Cost savings that can be generated by the imposition of a fee schedule for medication as well as other medical services and the development of networks of providers so long as the injured worker continues to have the right to free choice of medical providers .

3. A raise in the prior authorization limit to $1000 thereby reducing the time needed to obtain necessary medical tests and treatment .

4. A reduction from 60 to 45 days for the Board to schedule a preliminary hearing in a controverted case.

5. The revision of the Workers' Compensation Board Medical Guidelines by a panel of medical experts working in consultation with legal practitioners .


1. An inadequate increase in the maximum lost wage benefit.

2. A cap on benefits for those permanently disabled.

3. The elimination of the right to a hearing to resolve controversies.

4. The development of a pilot program for voluntary delivery of benefits outside of the Workers' Compensation Board.

5. Development of networks of medical providers controlled by insurance companies without right to free choice of providers by injured workers.

6. Elimination of the stenographic recording for evidence in workers' compensation matters.

THE WCA takes no position on the other provisions in the Governor's proposal.

For further information please contact:

Richard D. Winsten, Esq.
Meyer, Suozzi, English & Klein, PC

One Commerce Plaza, Suite 1102
Albany, New York 12260
Phone: (518) 465-5551

Troy Rosasco Esq., Co-Chair Legislative Committee
Turley, Redmond, and Rosasco LLP

3075 Veterans Memorial Highway
Ronkonkoma, NY 11779
Phone: (631) 582-3700 ext. 123

John Sciortino, Esq., Co-Chair Legislative Committee
Segar & Sciortino, LLP

400 Meridian Centre - Suite 320
Rochester, NY 14618
Phone: (585) 475-1100