By Michael T. Berns
Retired New York State Workers' Compensation Board Commissioner

I was planning to do a poll on the Medical Guidelines and Functional Assessments for today, but in order to make sure my questions were relevant I read these documents again but in more detail. To my surprise, really, was the fact that the medical guidelines only cover a few sites of injury.

The sites covered are the Spine and Pelvis, Respiration (lungs and thorax), Heart, Skin, and Brain, plus the more subjective “Pain”. No shoulders or knees or hips or ankles or wrists. And to make matters worse there is no “to be continued”.

Instead, in my opinion and that of a few in the community, the New York State Workers' Compensation Board dropped the ball or ran out of gas. Chapter Eight, for “Other Injuries and Occupational Diseases (Default Guideline)”, states that, for other sites, the medical director can decide however he wants and then once he does what he wants, that shall become the new Board guideline for that site of injury:

The following procedure for determining medical impairment shall be used when a medical diagnosis establishes that a body-part or occupational disease is not covered by Chapters 2 through 7. The first time that the medical impairment for an uncovered body-part or occupational disease is to be determined, the claim shall be referred to the Board’s Medical Director.

To determine the medical impairment for the body-part or occupational disease that has been referred, the Medical Director shall select a guideline from the medical impairment guidelines used in other states for workers’ compensation claims or shall develop a guideline using methods consistent with those used by the task force. The medical director should take into account the severity rankings of these initial Chapters in developing the severity rankings for any such future guidelines, and shall use a ranking system consistent with these initial Chapters, as provided herein.

All subsequent claims for injury to that body-part or for that occupational disease shall use the guideline designated by the Medical Director under paragraph 3. (The Medical Director may change the designated guideline in accordance with paragraph 3, but thereafter any future claims for injury to that body-part or for that occupational disease shall be governed by the newly designated guideline.)

Isn’t that where we were before the 2007 Amendment? The A-Z rating do not have any quantitative definitions. And these guidelines also state that a “M” for a spine injury is not the same as an “M” for a respiratory problem. Equally important, as is noted several times in this document, “The Medical Impairment Class and severity ranking should not be used as a direct translation to loss of wage earning capacity.”

Also, “each Class has a severity ranking assigned to it that is generally reflective of the expected functional status for each Class relative to other Classes within a Chapter. The severity rankings for the Classes, from ‘A’ (the least severe medical impairment) to ‘Z’ (the most severe medical impairment) of one chapter should not be compared to the rankings in other Chapters. For example, a “D” ranking in the Spine and Pelvis Chapter is not intended to imply that a “D” ranking in the Respiratory Chapter is of equal severity.”

So it seems that only a part of the process has been competed, a complex part but not the entirety of the project.

Everyone should appreciate the tremendous amount of work done by the Committee and Task Force. Having served on a number of boards myself (profit and non-profit) I sympathize with the problem of trying to get so many people from such diverse and normally working opposite sides of the fence to concur or such an important subject.

My sense is that there was no driving force behind this project. In the movie “The American President’ with Michael Douglas aa president, after a transportation strike was called at Christmas, he told his staff to put both sides of the dispute in a conference room, take away all the chairs, and lock the door until they get an agreement.

Mr Chairman! Mr Governor! Anyone listening? Anyone in charge care? Anyone in charge there?

Well, be it Cuomo or Paladino, there will be someone in six months who will lock everyone in a room.

Michael T. Burns is a retired New York State Workers' Compensation Board commissioner. This column was reprinted with his permission from his blog, http://www.insideworkerscompny.com