Board Bulletins and Subject Numbers

October 13, 2010

The introduction of duration caps on non-schedule permanent partial disability benefits is a major component of the 2007 workers' compensation reform. The maximum duration of these benefits under Workers' Compensation Law (WCL) § 15(3) (w) is based on the injured worker's "loss of wage earning capacity."

On September 15, 2010, Insurance Superintendent James Wrynn presented me with proposed Disability Duration Guidelines that have been developed by the Governor's Workers' Compensation Reform Task Force (Task Force) and Advisory Committee. The Advisory Committee included an impressive array of stakeholder representatives, including physicians and other medical professionals, attorneys, and other representatives from business, labor, and the insurance industry.

Superintendent Wrynn's letter describes a three step process for the calculation of loss of wage earning capacity. The proposed process would begin after the injured worker has reached maximum medical improvement (MMI). The first step is a determination of the severity of the injured worker's medical impairment. The second step is a determination of what functional abilities the injured worker has lost because of the medical impairment. The third and final step is a calculation by the WCL Judge of how much wage-earning capacity the injured worker has lost due to the permanent functional limitations so that compensation can be paid.

The Superintendent provides two consensus guidelines: Step 1: medical impairment guidelines and Step 2: functional abilities/losses guidelines. The Advisory Committee could not reach consensus on recommendations for Step 3: loss of wage earning capacity guidelines. Therefore, Superintendent Wrynn recommended that the Board formulate its own guidelines for this purpose.

I appreciate the dedication and thoughtful work of the Insurance Department, the Task Force and its Advisory Committee. The Workers' Compensation Board has begun to review the details of the two recommended guidelines and to explore options for loss of wage-earning capacity guidelines. I invite all stakeholders to review the proposed Disability Duration Guidelines and submit comments and suggestions to the Board for consideration. Comments should be sent by email to disabilityguidelines@wcb.ny.gov.

While the creation of Disability Duration Guidelines is an important undertaking, it cannot and does not prevent the Workers' Compensation Board from applying the duration caps to current cases as injured workers reach MMI. WCL § 15 (3) (w) took effect on March 13, 2007, and is presently in full force and effect. As such, the Board will continue to classify injured workers who have reached MMI under the standards set forth in Matter of Buffalo Auto Recovery, 2009 NY Wrk. Comp 80703905. This remains the Board's governing standard and is controlling until it is modified or replaced.