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 itsrevised Impairment Guidelines for schedule loss of use and proposed regulations viaSubject 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 Guidelineshere.
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.”
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. At the very least, when submitting comments to the Board, we would urge our clients to recommendrequiring examiners to compare a claimant’s injured limb with the baseline normal range of motion on the claimant’s contralateral limb andmandate that the loss of range of motion in the injured limb be calculated from the baseline range of motion in the contralateral uninjured limb.
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 commentsvia 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.
Appellate Division Split Decision Creates New Standard for Permanent Total Disability
On 11/16/17, the Appellate Division, Third Department, decided Wohlfeil v. Sharel Ventures, LLC. This split 3-2 decision represents a marked departure from previous practice and precedent on how non-statutory permanent total disabilities are determined. Because it is a 3-2 split decision, the employer and carrier have an appeal as of right to New York State’s highest appellate court, the New York Court of Appeals. It is unknown at this time if the carrier/employer will pursue such an appeal.
At issue was a claim for permanent total disability versus permanent partial disability. Claimant’s treating physician issued a report with a Class 5F permanent partial disability ranking under the 2012 Guidelines. He also opined a "less than sedentary" work capacity. The carrier’s IME consultant opined a Class 4G permanent partial disability under the 2012 Guidelines. During deposition testimony, the treating physician said that he gave the claimant, “rather significant restrictions” and that the claimant was “not…capable of performing any type of gainful employment at this time.” The carrier’s IME consultant testified during his deposition that “It was unlikely claimant would ever be able to return to meaningful employment.”
The WCLJ classified claimant with a permanent partial disability and a 75% loss of wage earning capacity. A three-member Board Panel affirmed on appeal.
The Appellate Division majority reversed, relying on the above statements from the physicians. The Court stated, “Since the Board’s findings as to claimant’s ability to perform some type of sedentary work are contrary to the consistent medical proof presented, the Board’s finding of a permanent partial disability and a 75% loss of wage earning capacity is not supported by substantial evidence….” Had the Court stopped there and remanded the case for further proceedings regarding claimant’s exertional capacity, this decision would be arguably consistent with previous precedent. However, the Court went a step further and classified claimant with a permanent total disability, stating, “The operative standard here isgainful employment, not some undefined type of limited sedentary work.” (emphasis added). The Court did not define the term “gainful employment.” This statement departs from past precedent, because a claimant has always been considered partially disabled if there is any form of work he or she can do, however limited. The “gainful employment” standard described by the Court here represents a re-definition of the standard for finding total disability.
Both physicians opined permanent partial disabilities under the Board’s 2012 Guidelines in their reports and only opined total disabilities off-the-cuff during their depositions. The Board's decision finding a 75% loss of wage earning capacity was based on the 2012 Guidelines. The Board is entitled to apply the Guidelines it has promulgated to ensure consistency in disability assessments. The Court’s decision conflicts with previous precedent holding that the Board, in its role as fact finder, is entitled to selectively adopt and reject portions of medical opinions and testimony so long as the final result is based on substantial evidence. In this case, the Board rejected the total disability statements from the treating physician and IME consultant and credited the permanent partial disability assessment from the treating physician based on the 2012 Impairment Guidelines. If previous precedent were applied here, this decision should have been affirmed as a legitimate exercise of the Board’s fact-finding powers to selectively adopt and reject portions of an expert’s medical opinion.
The Court’s decision is further inconsistent with its previous holding inBurgos v. Citywide Insurance Program, which held that a claimant’s exertional ability is irrelevant to the degree of medical impairment. In that case, the Court rejected a claimant’s argument that a less than sedentary exertional capacity represents a de facto permanent total disability. Ironically, the New York Court of Appeals, affirmed the Appellate Division’sBurgos holding the very day the Appellate Division issued this decision. The Court’s decision here appears to rely heavily on the treating physician’s testimony that claimant has a less than sedentary exertional capacity. In this vein, the “gainful employment rather than some undefined type of limited sedentary work” standard appears to establish ade facto permanent total disability in cases where a claimant has a less than sedentary exertional capacity in direct contravention to the Court’s holding inBurgos.
The Court’s holding also blurs the distinction between the medical issue of permanent total disability and the functional/vocational issue of total industrial disability. Permanent total disability is purely a question of medical impairment whereas total industrial disability applies to permanently partially disabled claimants who meet various requirements for functional and vocational limitations.
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