Background:
As you may know, one type of workers' compensation permanency award is a schedule loss of use award, a lump sum benefit
payable for the permanent loss of function of an injured extremity. For decades, the Board consistently applied permanency
guidelines to calculate the value of these awards without regard to one’s ability to work or earn. In 2017, the New
York State Legislature and Governor Cuomo, prompted by New York’s insurance interests, directed the Board to publish new
guidelines purportedly to account for "... advances in modern medicine that enhance healing and result in better outcomes."
Although I was anxious about the coming changes, I assumed that the revised guidelines would only affect the way the guidelines
treat surgeries that have indeed come a long way in treating injured workers. For example, the guidelines routinely awarded a
substantial 50% loss of use for joint replacements even when patients experienced a full recovery and regained almost full mobility
after surgery. I did not expect, however, that the Board would substantially reduce the value of injuries like rotator cuff or
meniscal tears that result in a substantial range of motion loss.
What happened?
In Fall of 2017, the Board proposed shocking new guidelines, which later went into effect beginning January of 2018. The guidelines go so much farther than the
legislative mandate to account for medical advancements. The new guidelines reduce the value of almost every extremity injury.
Not only do these guidelines seek to reduce the value of joint replacements, but they also seek to extinguish the award
altogether in many cases! Whereas the previous guidelines used to award 50% loss of use for a rotator cuff tear with a substantial range
of motion loss, the new guidelines may award nothing for the very same injury and outcome! That’s right, nothing at all even
if the injured worker has the same permanent functional loss. But that’s not all. After decades of insisting that an injured
worker’s ability to earn is irrelevant to a schedule loss of use award, the new guidelines, if adopted, will direct judges to
consider the injured worker’s loss of future “earning power.” I see this directive as a cynical attempt by the Board to vastly
expand its discretion to reduce or even extinguish most schedule loss awards no matter how bad the injured worker’s doctor rates
their injury and permanent loss.
Who do these changes affect?
The updated guidelines directly affect anyone with a shoulder, elbow, wrist, thumb, finger, hip,
knee, foot, or toe injury. The new guidelines do not affect head, neck, or back injuries. However, even if you are not
directly affected now, chances are you have a hard-working friend or relative who will be, or you may find yourself claiming
one of these extremity injuries in the future.
I'm confident that together we can make a difference in the fight to preserve workers’ compensation benefits for you and your family.
Regards,
Vincent Criscuolo, Esq. - Senior Partner
Joshua Roberts, Esq. - Partner
Ryan Edwards, Esq. - Associate Attorney
