New York, N.Y.—Under proposed new state workers’ compensation guidelines, if a torn rotator cuff leaves 
you permanently unable to lift your arm above your shoulder, your award will be reduced from three years worth of benefits to three weeks, says Robert Grey, chair of the Workers Compensation Alliance, a group of about 150 lawyers and law firms who represent injured workers.The proposed guidelines for awards for “scheduled loss of use”—injuries that permanently impair sight, hearing, or the use of a limb—were released by the state Workers Compensation Board on the night of Sept. 1. The state budget bill enacted in April had directed it to revise its guidelines to “be reflective of advances in modern medicine that enhance healing and result in better outcomes.”
If adopted, they would go into effect Jan. 1. A 45-day period for public comments ends Oct. 23, and the state legislature is scheduled to hold a hearing Sept. 26.
Loss-of-use awards are intended to compensate injured workers “for the permanent loss of earning power resulting from the permanent residual physical deficit,” based on “a statutorily prescribed formula calculated as a number of weeks of compensation,” the board explained in the 81-page proposal, “Workers’ Compensation Guidelines for Determining Impairment.”
“The current guidelines are decades old and do not reflect current medical science or practice,” board spokesperson Kevin Keegan told LaborPress.
But for many injuries, says Grey, the proposed revisions would reduce awards to little or nothing.
“What the existing system recognizes is that there is a loss of function inherent to the injury,” he says. It sets a “base value” for different injuries, with points added for reduced range of motion, loss of strength, and intensity of pain, he explains. For example, a torn rotator cuff is defined as 10% to 15% loss of use of your arm, and being unable to lift it above your shoulder counts as a 40% loss. With each percentage point worth 3.12 weeks of benefits, a 50% loss of use would award the injured worker 156 weeks of benefits.
The proposed guidelines, Grey told LaborPress, would reduce that to 1%—three weeks. Being unable to bend your knee more than 60 degrees would be reduced from a 50% impairment to 4%.
“What they’ve done is significantly downgraded the awards for range of motion,” he says.
The New York State AFL-CIO condemned the proposal, telling the Workers’ Compensation News trade newsletter that the board “took it upon itself to totally rewrite the guidelines and propose other regulatory changes with an eye toward slashing benefits.”
“If enacted, this package would drastically reduce awards for workers that lose the use of a body part, and introduce changes to the process that would lead to ever-increasing uncertainty, delay, and litigation for injured workers. This proposal runs counter to the intent of the legislation,” AFL-CIO President Mario Cilento said in an emailed statement. “This plan is an insult to all working men and women. Benefit cuts for injured workers are wholly unjustifiable.”
The Workers Compensation Board contends that because medical advances since the current guidelines were drafted in the 1990s result in significantly improved outcomes for some conditions, that will result in lower awards to those workers. However, it says, the proposal would increase the impairment rating for some conditions, such as hand, thumb, or finger injuries that can impede a worker’s ability to use a computer.
The Workers’ Compensation Alliance argues that there is “no basis” for using medical advances to reduce awards. “That the existing guidelines are based largely on range of motion and function necessarily builds in the result of advances in medical science,” it said in a report released Aug. 28. “If advances in surgery or therapy result in improved range of motion and function, then the resulting schedule loss evaluation is correspondingly lower than it would have been at an earlier time when the surgery was performed differently and left the worker with poorer range of motion or function.”
For example, says Grey, if hip replacements now reduce impairment from two-thirds of normal range to 40%, that means awards for that injury will automatically be smaller.
The proposal would set the base value at zero for numerous injuries, including fractured elbows, torn anterior cruciate ligaments, and ruptured Achilles tendons. Workers would get up to 5 points each for reduced range of motion, loss of strength, and intensity of pain. Being unable to lift your thumb up would count as 3 points, while only being able to twitch it would count as 4. Pain that “prevents the claimant from engaging in meaningful work, leisure or household duties,” counts as 5 points.
“The way these percentages are designed to work is that these workers will get nothing for permanent injuries,” says Grey. Workers injured receive two-thirds of their salary while they are unable to work, up to a maximum of $870 a week. Scheduled loss-of-use awards are meant to compensate for permanent injuries and are not related to time lost from work, he explains, but if the payments the worker received for being out of work exceed the amount of the award, they’ll get nothing.
He calls the proposed changes “a wish list for the Business Council,” an employers’ lobby that claimed awards cost too much.
Scheduled loss-of use awards are about one-eighth of the $10 billion in annual workers’ compensation payments.
