Are Disability Guidelines The Answer in New York Workers Comp

Defaults by self-insured group trusts has resulted in staggering assessments on many small businesses. The WCB has suggested “safety programs” to reduce workers comp costs.

But it has long been thought that the awards made by the Board on claims have no basis in reality and are much higher than the true costs of the injury.

Although fraud and “presumptions” are major factors, the Board’s inability to objectively measure disability is even larger.

For decades, the Board had no definition of percentages of schedule loss or extent of disability. It was using, quite literally, a blank yardstick to measure hundreds of millions of dollars a year in permanent damage awards. The cost of trials and testimony to measure what the Board itself said had no definition was staggering. (WCxKit)

Currently, the Board is once again engaged in a dispute over implementation of objective guidelines to measure disability. However, the workers comp legal system, for four generations, has operated profitably by having no standards. In a nutshell, disputes are resolved by having the parties go through expensive and time consuming exercises until both are sufficiently exhausted and “settle” for a number inevitably close to 50%, giving the erroneous impression of a fair result.

The Board, since its inception, has had a medical advisor. The first advisors created guidelines which were accepted until, in the 1950s, they were considered “obsolete.” After that, the Board had no guidelines but an effort to created new ones was deadlocked by opposition on all sides.

The Board continued to operate, unofficially, at first with the old guidelines, then with nothing at all, for 40 years. In the 1990s it published new written guidelines which were never made conclusively binding and were ignored for all practical purposes.

But why should guidelines solve anything? Unless the guideline can be tested to determine if it can measure what it purports to measure it remains a blank yardstick masquerading as a set of calipers. (WCxKit)

“Measurement” of disability, in the end, results in the final settlements of compensation claims, some currently higher than $200,000 and rising rapidly. Is that too much? Or too little? The Board still has no testable answer.

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers' compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.
 
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