Everything Old is New Again: Board Releases “Revised” SLU Impairment Guidelines on 11/22/17 for Public Comment
On 11/22/17, hours before the start of the Thanksgiving holiday, the Board issued its revised Impairment Guidelines for schedule loss of use and proposed regulations via Subject Number 046-1005. In a complete departure from the draft proposed guidelines that the Board issued on 9/1/17 (to which the Board has removed access to from its website), as well as the statutory mandate contained in WCL §15(3)(x), the new revised guidelines are nothing more than the current guidelines that have been in place since 1996 in a new package with a few minor tweaks that will do little to control schedule loss of use (SLU) costs. The regulations that the Board proposed on 9/1/17 that addressed changes to the SLU process, IMEs, and other things have been eliminated and replaced with a new Section 325-1.26 which incorporates the proposed 11/22/17 Impairment Guidelines by reference and requires their use in all evaluations for schedule loss of use. Our summary comments are below; for a more detailed analysis, please read our Summary and Analysis of the 11/22/17 Proposed SLU Guidelines here.
In April 2017, the Workers’ Compensation Law was revised to include a new WCL §15(3)(x), which required the Board to adopt new permanency guidelines by 1/1/18 for calculation of schedule loss of use that are “reflective of advances in modern medicine that enhance healing and result in better outcomes.” Arguably, the draft guidelines released on 9/1/17 addressed this statutory requirement in providing SLU guidelines that, in general, resulted in markedly lower SLU awards. Rather than relying primarily on loss of range of motion, the 9/1/17 Guidelines ranked injuries according to their severity into A, B, and C groupings to establish a baseline schedule loss. After the initial grouping, the examiner would then be required to analyze loss of range of motion, loss of function, and pain. This analysis would then be combined with the Board’s determination of the claimant’s loss of earning power to determine the final schedule loss of use award. This multi-factored analysis was designed to be reflective of “better outcomes” in healing that one might expect in the 20 years of medical advances since the publication of the 1996 Guidelines. The 9/1/17 draft Guidelines rejected the simple range-of-motion analysis from the 1996 Guidelines and emphasized that determination of SLU was a legal determination based in part on medical evidence and in part on an analysis of the claimant’s “loss of earning power.” The 9/1/17 draft guidelines were met with vociferous opposition from labor and the claimants’ bar.
Rejecting the new system envisioned by the 9/1/17 draft guidelines, the 11/22/17 revised guidelines return to the 1996 Guidelines, but in a somewhat easier to understand package that attempts to clarify a few ambiguities. As noted above, the 11/22/17 proposed guidelines will result in largely the same awards for SLU as under the current 1996 Guidelines. The primary calculation is based on loss of range of motion. The proposed guidelines contain helpful diagrams illustrating the various motions used in evaluating schedule loss of use. Each section of the proposed guidelines states that the examiner should first assess whether any special considerations apply. If so, then the schedule loss of use enumerated in the special consideration should apply without any addition for loss of range of motion unless the special consideration requires it. If the special consideration is silent on schedule loss of use value, then the examiner can consider loss of range of motion. If no special consideration applies, then the SLU analysis is based solely on loss of range of motion, using the chart provided in each section. Again, the percentage SLU values for loss of range of motion are basically unchanged from the 1996 Guidelines.
These proposed guidelines present little more than the current 20-plus year old SLU guidelines in a new package. They contain some minor tweaks and provide clarification regarding some issues but do very little to address the enormous cost of schedule awards for major extremities in cases with little or no lost time. Despite its flaws, the 9/1/17 Guidelines would have attempted to address this with the “loss of earning power” analysis.
We recommend that our clients strongly oppose the 11/22/17 proposed guidelines. We suggest that the Board return to the 9/1/17 draft impairment guidelines but eliminate the regulations regarding cooperation with IMEs objected to by labor and the regulations restricting the employer's right to cross-examine the claimant objected to by business. The 9/1/17 draft at least appeared to consider "advances in modern medicine" by tying the SLU evaluation to a claimant's medical outcome, rather than a mere loss of range of motion analysis. The 11/22/17 proposed guidelines do not address the statutory requirements of WCL Section 15(3)(x) because they are virtually the same as the 1996 Guidelines and thus cannot be said to be “reflective of advances in modern medicine that enhance healing and result in better outcomes.”
At the very least, when submitting comments to the Board, we would urge our clients to recommend requiring examiners to compare a claimant’s injured limb with the baseline normal range of motion on the claimant’s contralateral limb and mandate that the loss of range of motion in the injured limb be calculated from the baseline range of motion in the contralateral uninjured limb. The proposed guidelines only state that examiners “should consider” the limitation in range of motion in the claimant’s uninjured contralateral limb, which indicate that the loss of range of motion in the contralateral limb should be deducted from the calculation of loss of range of motion in the injured limb. Such comparison was not part of the 1996 or 2012 Guidelines but was included in the initial 9/1/17 draft guidelines. The inclusion of this suggestion in both the 9/1/17 and 11/22/17 proposals highlights its apparent importance.
Additionally, the award for defects in range of motion should never equal ankylosis or amputation of the relevant joint. To award a person with reduced range of motion, even if it is marked, benefits equal to a person with no movement in the joint or with an amputation, is inequitable and does not accurately represent the functional loss. For example, range of motion deficits in the hand may not exceed 55% as ankylosis is 60%. The same result should apply to all joints. Placing a maximum of 90% of the value of the ankylosed or amputated member would recognize that some movement is better than none, while at the same time, compensating for significant reduction in function.
We recommend that our readers take time to provide comments via the Board’s online survey, accessible through this link. The Board will close the public comment period on 12/22/17. Although we expect little more than technical changes from the Board when it finalizes these proposed guidelines, there will be no change at all unless Board hears comments from its stakeholders.