The following educational video was created by Buffalo Workers’ Comp Attorney Jerry Gambino, and will explain the proposed changes on scheduled loss injuries for New York Workers Compensation law beginning in January 2018.
In April of this year the Gov. signed into law pieces of legislation referred to as New York Workers Compensation reform. Included in that legislation was a law which would require new schedule loss guidelines.
To understand the significance of this it is first necessary to explain what it means to have a schedule loss award in a New York Workers Compensation case. Remember that in Worker’s Compensation cases there are 2 types of injuries: schedule injuries and non-schedule injuries.
Schedule injuries are injuries to the toes, feet, legs, fingers, hands, arms, eyes and ears. For those injuries, when you get as good as you are going to get, we call that reaching Maximum Medical Improvement (MMI), we obtain medical opinions of the Schedule Loss of Use of that part of the body. The medical opinions come from the injured worker’s treating physician and the carrier’s Dr, if necessary. That schedule loss, based on computations, results in a dollar amount. That dollar amount is reduced by the amount of weekly benefits and wages already paid and that results in the dollar amount moving to the injured worker. That is called a Schedule Loss award.
Nonschedule injuries are those injuries which are not schedulable. These generally include injuries to the neck, back, head, hernia, stress claims and others like that. They are injuries that are not to a bodily member.
Today we are talking about Schedule Loss injuries only.
As I said earlier, in April of this year the Gov. signed to law new legislation relative to changes to the New York Workers Compensation Law including eliminating the present schedule loss guidelines and replacing them with new guidelines. The push behind this change is from the business and insurance industry alleging that this change was necessary because of the advances in technology and medical treatment including surgery. We submit that is not an accurate or sincere position. The real reason for this change is to attempt to reduce awards for injured workers. That is the real reason.
We submit that the present schedule loss guidelines are sufficient and have the necessary elements in them to address injuries and consider any advances in medical treatment. Remember, generally, the present schedule loss guidelines are based on measuring any loss in range of motion which results in the computation of the schedule loss.
Again, we submit that the present guidelines are more than sufficient to address schedule loss awards. It appears that significant changes in the new proposed guidelines are for injuries to the shoulders and knees. With this video today, we will not address each and every difference in the present guidelines against the new proposed guidelines. We will only address general differences and applications.
For example, the present guidelines relative to shoulder injuries specifically address shoulder replacements in the section of Special Considerations #11. There it indicates that the schedule loss analysis will take into consideration “anatomical bone loss, mobility defects and muscle atrophy”.
Now, certainly it makes sense to consider these items when analyzing the schedule loss of an arm after a shoulder replacement.
Also, for a shoulder replacement, the present guidelines indicate that if there is an excision of the humeral head, that is equal to Schedule Loss of 50%.
Indeed, anyone that has had a shoulder replacement surgery which includes the excision of the humeral head, that person will have significant loss in that shoulder. Therefore, the present guidelines, indicate that the schedule loss should be 60-66% Schedule Loss of the arm. (It must be noted here that a 100% loss of an arm is worth 312 weeks of benefits.)
Now let’s move to a total knee replacement. The present guidelines already take into consideration that if there is no significant bone loss, then schedule loss is 35-40% of the leg. This is stated in the present guidelines relative to knee injuries, Special Considerations #11. Further, the present guidelines state that if there is bone loss then add another 10 to 15%.
Again, like a shoulder replacement, an injured worker that has a total knee replacement with bone loss, that person is experiencing significant loss of use of that leg. Thus, the present guidelines properly measure the loss of use in a leg for these type of injuries.
The proposed guidelines are scheduled to take effect January 1, 2018.
The proposed guidelines properly indicate that a schedule loss is determined by measuring 3 things. 1) range of motion, 2) strength and 3) pain. We would concede that it is correct to consider these elements in measuring the schedule loss.
The assessment of schedule loss is placed in one of 3 categories, category A, category B or category C. This is based on the permanent residual physical deficit that the person has. These categories are broken down with category A being 0 to 30%, category B 30 to 60% and category C 60 to 90%.
The proposed guidelines fail in the actual analysis which provide a point system to obtain the schedule loss. Although it is not clear in the new proposed guidelines, it appears that each point is a %. The problem is that using this system will no doubt result in significantly lower schedule losses for injured workers.
Looking at the new proposed guidelines relative to shoulder injuries, as an example, 1st looking at loss of range of motion, a significant loss in forward elevation is worth one point, a significant loss in shoulder abduction is 2 points, a significant loss in shoulder rotation is 2points;
Then we would look at loss of strength. A loss of strength with paralysis is worth 5 points; that is the highest % for significant loss of strength.
Then we would look at pain. For the highest pain rating that is 5 points.
The new proposed guidelines then take us to a chart with columns of category A, category B and category C. The biggest concern is that the vast majority of shoulder injuries in New York Workers Compensation cases fall in category A which is 0 to 30%.
Now considering, the highest points provided in the above analysis, the result would be only a 15% Schedule Loss of the arm.
We submit that that is significantly less than what the present guidelines would provide. For a shoulder replacement it is 66 2/3% Schedule Loss of the arm.
This is just one example of the bias in the new proposed Schedule Loss Guidelines.
We submit that the true reason for replacing the present schedule loss guidelines is not or accuracy or to address advances in medical technology but simply to reduce schedule loss awards for injured workers.
There is something you can do about it. But you must work fast. The comment period relative to the new proposed guidelines expires soon. Therefore, we strongly suggest that you contact your State Senator and/or State Assembly person and contact the New York Workers Compensation Board directly.
Contact Cole, Sorrentino, Hurley, Hewner & Gambino, P.C., online or call to arrange your initial consultation with one of our workers’ comp lawyers. We welcome the opportunity to represent you.