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Our Message

Hello,

I strongly oppose the Workers’ Compensation Board’s proposed regulations and impairment guidelines, which would drastically cut compensation awards for injured workers who have forever lost some or all of the use of their limbs. The 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; and

• Improperly permit the Board to substitute its judgment for the provisions of the law.

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

I urge you to support New York’s injured workers by objecting to these destructive proposals. We must protect workers in New York State.

Thank You

Information For Physicians

To Workers’ Compensation Physicians:

At the direction of the State Legislature, the New York State Workers’ Compensation Board recently released proposed regulations and guidelines to account for advances in modern medicine that enhance healing and result in better outcomes. Unfortunately, the Board’s proposals actually revise forms, processes, regulations and guidelines in a way that will drastically reduce, and in some cases eliminate, compensation benefits for injured workers.

The proposed regulations also would strip injured workers of important protections and due process rights, and would create a system ripe for abuse by employers, insurers, IME vendors, and IMEs. Low wage workers, who already receive the least compensation because of the wage-oriented basis of the law and who already believe the system is unfair and that benefits are inadequate, would suffer the most grievous harm as a result of the proposed regulations and guidelines.

The Board has released no documents or information providing medical support for the revision of its guidelines, nor has it explained how loss of function is now significantly less impactful than it has been in the past. The proposed guidelines completely eliminate consideration of the anatomical damage resulting from most injuries. There is no medical basis upon which it can be said that broken bones, dislocated joints, torn ligaments and tendons, and joint replacement surgeries cause no permanent damage to the body. In addition, there is no medical basis upon which it can be said that the normal range of motion of the human anatomy has changed, or that range of motion deficits have a significantly smaller impact on the function of a limb today than previously.

In the original workers’ compensation “bargain” workers gave up the right to sue employers for workplace injury in exchange for the assurance that they would be compensated for their injuries through the workers’ compensation system. These proposed regulations and guidelines destroy that bargain and will leave thousands of injured workers with no compensation at all for their workplace injury.

The Business Council has asserted that revisions are necessary because schedule-loss-of-use costs are skyrocketing, but this is simply false. Schedule loss awards represent only a small portion of all employer costs, which are lower today than they were in 1996, and which were just reduced by nearly a half billion dollars.

We must support New York’s workers and reject these destructive proposals.

Information For Union Leaders

To Union Leaders:

The New York Workers’ Compensation Alliance supports the effort by the New York State AFL-CIO to prevent the Workers’ Compensation Board from harming injured workers.

The Board recently released proposed regulations and impairment guidelines that would drastically cut compensation awards for injured workers who have lost some or all of the use of their limbs. The Board’s proposals are a direct attack on workers, and are clearly designed to eliminate compensation benefits for workplace injuries.

The Board has released no documents or information providing even a shred of medical support for the revision of its guidelines, nor has it explained how loss of function is now significantly less impactful than it has been in the past.

The Business Council, which has been pushing for the changes, claims that revisions are necessary because schedule-loss-of-use costs are skyrocketing. This is simply false. Schedule loss awards represent only a small portion of all employer costs, which are lower today than they were in 1996, and which were just reduced by nearly a half billion dollars.

In fact, schedule loss evaluations under current guidelines do not fairly compensate injured workers for the economic loss they suffer as the result of workplace injury. The proposed regulations also would strip injured workers of important protections and due process rights, and would create a system ripe for abuse by employers, insurers, “independent” medical examiners, and IME vendors.

In the original workers’ compensation “bargain” workers gave up the right to sue employers for workplace injury in exchange for the assurance that they would be compensated for their injuries through the workers’ compensation system. These proposed regulations and guidelines destroy that bargain and will leave thousands of injured workers with no compensation at all for their workplace injury.

The bottom line is that proposals take the money to compensate injured workers and give it to big businesses and insurance companies. We must stand together to support New York’s workers and reject these destructive proposals. Please make your voice heard to the State legislature and to the Workers’ Compensation Board by visiting http://www.nyworkerscompensationalliance.org/protectinjuredworkers, and by supporting the AFL-CIO campaign here: https://is.gd/mNr8a2.

Information For Workers

To Workers in New York State:

Right now, workers in New York State receive some financial compensation when they experience permanent damage to an arm, leg, hand, foot, or eye. Workers receive this money because they gave up the right to sue their employers for workplace injuries in the original workers’ compensation “bargain.” Workers were assured that as part of this agreement they would be compensated for their injuries through the workers’ compensation system.

As you may have heard, the Workers’ Compensation Board recently released proposals that would drastically reduce and eliminate compensation benefits for injured workers.  The proposals are being pushed by business owners and employers who want to renege on the deal with workers, making sure that they receive nothing for a work-related broken arm, torn rotator cuff, joint replacement, etc.

The proposals are totally unfair and will significantly harm all New York State workers, their families, friends and co-workers. The bottom line is that proposals would take the money to compensate injured workers and give it to big businesses and insurance companies.

The recently released Workers’ Compensation Board proposals are exactly what the big businesses and insurance companies asked for. We must stand together to support New York’s workers and reject these destructive proposals. Please make your voice heard to the State legislature and to the Workers’ Compensation Board by clicking here:

www.nyworkerscompensationalliance.org/protectinjuredworkers.

Information For State Legislators

To State Legislators:

The Workers’ Compensation Board recently released proposed regulations and guidelines in response to the State Legislature’s request for revisions that account for advances in modern medicine that enhance healing and result in better outcomes. Unfortunately, the Board completely disregarded the Legislature’s direction and instead proposed a wholesale revision of forms, process, regulations and guidelines in a manner calculated to eliminate compensation benefits for injured workers.

The proposed regulations and guidelines are inconsistent with the authority delegated to the Board by the Legislature as they largely focus on the impact of medical impairment on earning power, which is not a medical question, but rather a legal determination.

The Board has released no documents or information providing any medical support for the revision of its guidelines, nor has it explained how loss of function is now significantly less impactful than it has been in the past. Finally, the schedules in Workers’ Compensation Law Sections 15(a)-(t) represent a legislative determination about the impact of medical impairment on earning power, and the WCA does not believe that it is proper for the Board to exercise its judgment on that issue. Instead, the Board’s authority under the statute is limited to determining the extent to which the injured worker has suffered a loss or loss of use of the limb.

It is important to note that existing guidelines are based largely on range of motion and function, and this necessarily builds in the result of advances in medical science. If advances in surgery or therapy result in improved range of motion and function, a schedule loss evaluation will be correspondingly lower than it would have been at an earlier time when the surgery was performed differently, leaving the worker with poorer range of motion and function.

In the original workers’ compensation “bargain” workers gave up the right to sue employers for workplace injury in exchange for the assurance that they would be compensated for their injuries through the workers’ compensation system. These proposed regulations and guidelines destroy that bargain and will leave thousands of injured workers with no compensation at all for their workplace injury.

The Business Council has asserted that revisions are necessary because schedule-loss-of-use costs are skyrocketing, but this is simply false. Schedule loss awards represent only a small portion of all employer costs, which are lower today than they were in 1996, and which were just reduced by nearly a half billion dollars.

Ironically, schedule loss evaluations under current guidelines do not fairly compensate injured workers for the economic loss they suffer as the result of workplace injury. The proposed regulations also would strip injured workers of important protections and due process rights, and would create a system ripe for abuse by employers, insurers, IME vendors, and IMEs.

We must support New York’s workers and reject these destructive proposals.

Our Letter to the Workers’ Compensation Board

Dear Board:

I am attaching five documents which together with this letter comprise the WCA’s comments on the proposed amendments to the Board’s regulations and guidelines concerning schedule loss of use evaluations.

Prior to the release of the Board’s proposal, the WCA conducted a survey of injured workers about their experience with schedule loss of use awards. We asked the workers to comment on the fairness of their schedule loss evaluation both in terms of the percentage loss and the economic result. Their responses are aggregated by wage distribution in the document titled

Injured Workers: Payments for Schedule Loss of Use Are Inadequate; Should Not Be Reduced. The survey responses show that the vast majority of injured workers believed schedule loss evaluations were inadequate to compensate them for either their injury or their economic loss under the current guidelines. This document also includes an appendix with several hundred comments by injured workers. We would ask that these comments be considered with regard to the proposed regulations and guidelines, since they are very relevant to the issue.

Also prior to the release of the Board’s proposal, the WCA issued a document outlining the lack of an economic, medical, or justice-based reason to reduce schedule loss awards from their current levels. That document is titled No Justice: The Case Against the Callous Campaign to Cut Compensation Benefits for Injured Workers. In addition to referring to the results of the injured worker survey, this document also points out the recent significant drop in workers’ compensation costs (with additional reductions likely to occur as a result of adopting a formulary for prescription drugs) and the fact that the current guidelines essentially “build in” advances in medical science for many evaluations. We would ask that this document be considered with regard to the proposed regulations because it addresses the basis for their promulgation (or lack thereof).

In addition to these two documents, I am also attaching three documents that specifically respond to the proposed regulations and guidelines. The document titled Summary of the Workers’ Compensation Board’s Proposed Regulations and Impairment Guidelines Concerning Schedule Loss is a brief outline of the WCA’s general concerns with the proposed regulation and guidelines. The document titled Analysis and Comment on the Proposed Regulations and Impairment Guidelines Concerning Schedule Loss of Use is a detailed section-by-section response to the proposed regulations and guidelines. Finally, the document titled Schedule Loss Outcomes For Injured Workers Under the Workers’ Compensation Board’s Proposed Schedule Loss Guidelines As Compared to Existing Guidelines is an analysis of how injured workers would fare under the proposed guidelines.

We would ask that all three of these documents be considered as comments responsive to the proposed regulations and guidelines.

Overall, it is the position of the WCA that:

1. Schedule loss evaluations under the present guidelines are inadequate to compensate injured workers for the economic loss they suffer as the result of workplace injury. It is essential to bear in mind that workers do not receive full compensation for their lost wages when they are out of work due to injury, and in many cases they receive far less because of the reduced payment made for periods of partial disability. As a result, even when workers receive a schedule loss award, it is often inadequate to replace their actual lost wages. In some cases, workers receive no compensation for schedule loss even under the present guidelines. And in other cases, the schedule loss finding terminates payment for lost wages, leaving the worker permanently disabled and without compensation for ongoing wage loss.

2. There is no economic basis to adopt guidelines that would result in a significant downward revision of schedule loss awards. The Department of Financial Services recently approved a 4.5% decrease in loss costs, which will save employers nearly a half billion dollars. Further reductions are expected as result of the Board’s adoption of a prescription drug formulary. Moreover, claim trends indicate that employer costs will continue to decline in future years. There is no compelling cost-based argument to slash schedule loss awards.

3. There is no medical basis to support the adoption of the proposed guidelines. The proposed guidelines completely eliminate consideration of the anatomical damage resulting from most injuries. There is no medical basis upon which it can be said that broken bones, dislocated joints, torn ligaments and tendons, and joint replacement surgeries cause no permanent damage to the body. In addition, there is no medical basis upon which it can be said that the normal range of motion of the human anatomy has changed, or that range of motion deficits have a significantly smaller impact on the function of a limb today than previously.

4. The proposed regulations and guidelines are inconsistent with the authority the Legislature delegated to the Board. The 2017 State Budget directed the Board to revise its guidelines based on advances in medicine. The proposed guidelines are largely focused on the impact of medical impairment on earning power, which is not a medical question, but rather a legal determination. The Board has released no documents or information providing any medical support for the revision of its guidelines, nor has it explained how loss of function is now significantly less impactful than it has been in the past. Finally, the schedules in Workers’ Compensation Law Sections 15(a)-(t) represent a legislative determination about the impact of medical impairment on earning power, and the WCA does not believe that it is proper for the Board to exercise its judgment on that issue. Instead, the Board’s authority under the statute is limited to determining the extent to which the injured worker has suffered a loss or loss of use of the limb.

5. The proposed regulations and guidelines are fundamentally unfair to injured workers. The proposed regulations would strip injured workers of important protections and due process rights, and would create a system ripe for abuse by employers, insurers, IME vendors, and IMEs. The proposed guidelines would largely eliminate compensation for permanent loss of use for tens of thousands of injured workers. This is inconsistent with the language and intent of the Workers’ Compensation Law, would vastly exacerbate the existing inadequacy of benefits, and is not in the interests of justice. Low wage workers, who already receive the least compensation because of the wage-oriented basis of the law and who already believe the system is unfair and that benefits are inadequate, would suffer the most grievous harm as a result of the proposed regulations and guidelines.

We hope that the Board will consider this letter and the five attachments, and in particular that it will focus on the comments injured workers submitted in connection with the survey regarding existing schedule loss of use awards. There is no question that implementation of the proposed regulations and guidelines would significantly exacerbate the extent to which injured workers perceive the system to be unfair and benefits to be inadequate.

While the WCA would support a revision of a limited portion of the existing guidelines based on sound medical evidence – which would include the addition of schedule loss awards for certain conditions and diagnoses that are absent from the current guidelines – we are unable to support any portion of the proposed regulations and guidelines that have been released.

On behalf of the WCA Board of Directors,

Robert E. Grey, Chair

Tell Your New York State Senator That You Want To #ProtectInjuredWorkers

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.

WCA COMMENTS ON PROPOSED SCHEDULE LOSS GUIDELINES

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.