WCB RELEASES 2012 GUIDELINES FOR DETERMINING PERMANENT IMPAIRMENT AND LOSS OF WAGE EARNING CAPACITY

The Workers Compensation Board has finally issued the long-awaited 2012 Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (2012 Guidelines). The 2012 Guidelines continue the “schedule loss” criteria from the 1996 Guidelines. These criteria have served injured workers well for decades.

The Board’s medical impairment guidelines were adopted in their entirety from the September, 2010 report from the New York State Insurance Department. The Board has, however, added a “crosswalk” that permits severity ratings for different body parts to be compared on a 0-6 scale.

The 2012 Guidelines repeatedly state that medical impairment does not translate into loss of wage earning capacity, and that worker’s compensation benefits depend on the loss of wage earning capacity, rather than medical impairment. This is a significant shift from present workers compensation practice, which tends to minimize the consideration of functional loss and vocational factors except in rare instances (claims for total industrial disability).

The Insurance Department’s Task Force and Advisory Group specifically designed its medical impairment guidelines to prevent comparison of severity rankings across body parts in order to assist in shifting the system’s focus from medical impairment to loss of wage earning capacity. We are concerned that the Board’s creation of a “crosswalk” will undermine this goal. Instead of converting medical impairment into a series of letter rankings that cannot be translated into traditional “degrees of disability” as intended by the Task Force and Advisory Group, the “crosswalk” facilitates such translation. It is to be hoped that the Board will place a strong emphasis on the multiple portions of the 2012 Guidelines that prohibit conversion of medical impairment into compensation benefits and which require consideration of other factors.

Many portions of the 2012 Guidelines mandate evaluation of the impact of functional loss and vocational characteristics on loss of wage earning capacity. The Guidelines recognize that there are few employment options available for many workers who are limited to sedentary work as the result of occupational injury. Such workers have little if any earning capacity and must be protected by the workers compensation system.

There is a regrettable lack of guidance in the 2012 Guidelines regarding the respective weight of medical impairment, functional loss, and vocational factors, as well as the specific weight to be accorded to any given vocational factor. This approach permits an individualized assessment of each injured worker. However, the absence of guidance may well result in dissimilar outcomes in otherwise similar cases due to the variability inherent in the litigation process.

If the 2012 Guidelines are applied so that full and fair weight is given to the impact of functional loss and vocational factors on wage earning capacity, then the system may well achieve more substantial justice than it has in the past when inquiry was limited largely to medical impairment. If, however, the Board fails to properly emphasize the impact of functional loss and vocational factors, or if those factors are accorded insufficient weight in the ultimate determination, then substantial loss of benefits may occur due to the minimization of medical impairment under the new guidelines.

We will continue to monitor the implementation of the 2012 Guidelines and comment as appropriate.