Hamberger & Weiss LLP


Workers' Comp Reform on Legislative Agenda

The first, S.4014/A.5977, directs the Board to adopt medical impairment guidelines for schedule loss of use (SLU) awards "substantially similar to those developed and completed by the Board on [1/8/16]." There is no reference in the bill to the content of the referenced Guidelines and we can only speculate as to the contents of same. The sponsors' justification for the bill notes that SLUs represent over $1.3 billion in costs to the system and the current impairment guidelines for SLUs are over 35 years old and do not reflect advances in medical science. 

The second, S.4554/A.6218, would limit SLU awards to those claimants who have an "impairment of wage earning capacity" of 85% or higher. Those claimants with an "impairment of wage earning capacity" lower than 85% would receive benefits at two-thirds of their average weekly wage for a maximum of 525 weeks, "during the continuance of such permanent partial disability." 

The intent of the bill is to stop indemnity compensation to those claimants with an "impairment of wage earning capacity" lower than 85% once they return to work. This would prevent claimants with little or no lost time from receiving a large lump sum SLU that is out-of-proportion to the claimant's actual lost wages.

This is a laudable goal, but the the bill appears to confuse concepts of wage earning capacity applicable to classifiable permanent partial disabilities with SLU awards. In doing so it could be used to argue for payment of indemnity to non-working claimants with relatively small schedule losses for periods greatly exceeding the schedule for that body part. 

The last bill, S.4520/A.6602, specifies that the durational limit (caps) on permanent partial disability claims under Section 15(3)(w) (classification claims) would begin on the date of injury, rather than the date of the claimant's legal classification by the Board. 

All three bills are the subject of vehement opposition from labor and the claimant's bar. 

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