New York WCB Announces 2012 NYS Guidelines For Determining Permanent Impairment And Loss Of Wage Earning Capacity

New York City, NY ( – The Workers’ Compensation Board (Board) has developed the 2012 New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (“2012 Guidelines”) for use by medical professionals, carriers, attorneys, and the Board in the evaluation of permanent disabilities. The 2012 Guidelines will replace the existing 1996 Medical Impairment Guidelines and will take effect January 1, 2012. However, for claims that already have at least one medical opinion finding a permanent impairment with a rating based on the 1996 Guidelines on or before January 1, 2012, the Board will determine the claimant’s degree of permanent disability using the 1996 Guidelines.

The 2012 Guidelines address the evaluation of both schedule loss of use awards and non-schedule permanent disabilities. The portion devoted to schedule loss of use awards (Chapters 2-8) is taken unchanged from the 1996 Guidelines. The non-schedule permanent disability sections (Chapters 9-17) are largely based on the work of the Insurance Department’s Workers’ Compensation Reform Task Force and Advisory Committee (Task Force). It includes guidance for medical professionals on how to evaluate medical impairment and physical function and guidance for the Board on how to determine loss of wage earning capacity. It is expected that attorneys, claims professionals, and others will utilize these new standards in an attempt to evaluate and settle claims.

The starting point for determining both schedule and non-schedule permanent disabilities is the finding by a medical professional that the injured worker has reached maximum medical improvement (MMI) and has a causally related permanent impairment. The 2012 Guidelines adopt the Task Force’s consensus definition of MMI.

A finding of maximum medical improvement is based on a medical judgment that (a) the claimant has recovered from the work related injury to the greatest extent that is expected and (b) no further improvements in his or her condition is reasonably expected. The need for palliative care or symptomatic treatment does not preclude a finding of MMI. In cases that do not involve surgery or fractures, MMI cannot be determined prior to six months from the date of injury or disablement, unless otherwise agreed to by the parties.

Task Force Recommendations

The 2007 workers’ compensation reform imposed duration caps for permanent partial disability payments under Workers’ Compensation Law (WCL) §15(3)(w) on claims with a date of accident or disability on or after March 17, 2007. The caps are based on the injured worker’s loss of wage earning capacity. The Task Force was directed to develop new recommended guidelines to assist in the determination of loss of wage earning capacity. Meanwhile, the Board has been applying and interpreting WCL §15(3)(w) in individual cases since it became law (e.g. Matter of Buffalo Auto Recovery, 2009 NY Wrk Comp [80703905].

In September 2010, Superintendent Wrynn submitted to me the Task Force’s recommendations, which provides a three part analysis for determining loss of wage earning capacity:

  • Evaluation and ranking of medical impairment
  • Evaluation of functional ability/loss
  • Determination of loss of wage earning capacity based on impairment, function and vocational factors (including education, skills, literacy, age, etc.)

The recommendations included consensus guidelines for evaluation of medical impairment and functional ability/loss. The Task Force and Advisory Committee could not reach consensus on a methodology for the determination of loss of wage earning capacity.

Determination of Loss of Wage Earning Capacity Under the Guidelines

The 2012 Guidelines adopt the recommended three part analysis for determining loss of wage earning capacity. First, the 2012 Guidelines adopt the Task Force’s proposed impairment guidelines for evaluation of conditions involving the spine and pelvis, respiratory system, cardiovascular system, skin, brain, and extraordinary pain (Chapters 11-17). The 2012 Guidelines also set forth principles for the evaluation of impairment of other body parts and systems (Chapter 17). The impairment guidelines employ objective standards for evaluating and rating medical impairment and are intended for medical professionals. The impairment guidelines include severity rankings by body part/system that use letter grades (A-Z) and a chart that places those letter grades on a scale from 0-6. It is important to note that impairment alone does not equate to loss of wage earning capacity.

The 2012 Guidelines contain a functional assessment component (Chapter 9.2) based on the Task Force’s functional ability/loss guideline, which set forth standards for treating medical providers as well as carrier consultants to measure and report injured workers’ abilities/losses across a range of work-related functions, including dynamic abilities (lifting, carrying, pushing), general tolerances (walking, sitting, standing), and specific tolerances (climbing, bending/stooping, kneeling, environmental).

The 2012 Guidelines also include new guidance on how to determine loss of wage earning capacity (Chapter 9.3). They set forth relevant medical factors (impairment and functional ability/loss) and vocational factors (education, skills, English language proficiency, age, etc.) that the Board should consider in evaluating the impact of a permanent impairment on a claimant’s wage earning capacity. They provide general guidance regarding the impact of medical and vocational factors on an injured worker’s earning capacity. The 2012 Guidelines do not overrule Matter of Buffalo Auto Recovery, but rather provide additional assistance on how to calculate loss of wage earning capacity and implement WCL §15(3)(w).

Benefit Rates for Non-Schedule PPD

The 2012 Guidelines also clarify that the three part approach to loss of wage earning capacity (disability) applies in determining the benefit rate in pre- and post-reform non-schedule permanent partial disability claims.