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