Saturday, February 10, 2018

Professor Burton Criticizes Proposed New York “Proposed Guidelines for Determining Impairment”

            Professor John F. Burton has recently published a sharply critical paper addressing the proposed New York Workers' Compensation Board's Workers’ Compensation Guidelines for Determining Impairment. That proposed document was published on November 22, 2017, and is apparently being considered right now by the Board. It is notable that these proposed guidelines are intended to replace the currently existing guidelines (promulgated in 2012) which bear a markedly different title, to wit, the Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity.

            Burton assails the new proposal, insisting that it departs, without reason, from the 2012 guidelines and misses the point that the calculation of permanent partial disability under the Act is intended as a measure of disability, and not just impairment. The proposal directs the evaluating physician, “For a non-schedule permanent disability [presumably like the back], evaluate the impact of the impairment(s) on claimant’s functional and exertional abilities.” Burton, however, complains, “But ‘functional and exertional abilities’ are surely not the only relevant factors that determine the ‘impact of a workplace injury on a claimant’s injury on a claimant’s ability to work.’”  

            Professor Burton, who has other complaints as well, recommends that the Board withdraw the proposed guidelines, and he makes other constructive suggestions for how the agency should proceed.    

            You can find the entire document here: Burton Analysis of November 2017 NY WC Impairment Guidelines.

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