WCB – UPDATE

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On November 22, 2017, the Workers’ Compensation Board released a revised version of proposed amendments to its guidelines for permanent impairment. The November version is a substantial improvement over the previous version that was released in September. The WCA’s letter to the Board about the revised proposals is here, and our full analysis and comments can be found here.

The WCA would like to thank Governor Cuomo, WCB Chair Clarissa Rodriguez, the New York State Assembly Majority, the New York State Senate Democrats, the Independent Democratic Conference, and others who listened to the concerns of injured workers and worked tirelessly to ensure that their right to compensation for permanent limb injuries was preserved. We look forward to continuing the campaign to improve the workers’ compensation system in the upcoming legislative session.

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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

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WCA RELEASES RESULTS OF INJURED WORKER SURVEY ON SCHEDULE LOSS OF USE

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.