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.