On 9/1/17, as announced in Subject No. 046-978, the Workers’ Compensation Board proposed new Permanent Impairment Guidelines for schedule loss of use (SLU) awards as required by WCL §15(3)(x). Under the April 2017 workers’ compensation reform, the Board is required to adopt new permanency impairment guidelines for SLU cases no later than 1/1/18. The law also required the Board to publish the proposed guidelines by 9/1/17, along with proposed regulations necessary to implement those guidelines. The Board is seeking comments from all stakeholders in the workers’ compensation system concerning the new permanent impairment guidelines and their enabling regulations. Any comments are due to the Board no later than 10/23/17 via anonline survey set up by the Board.
The Board’s proposed regulations and impairment guidelines concerning SLU determinations represent a significant departure from prior practice on schedule loss of use awards. Although the proposed guidelines, in general, appear designed to result in lower overall SLU determinations, the decision to allow for consideration of both the subjective factor of pain and a poorly defined “loss of earning power” factor in SLU determinations provides an unnecessary level of uncertainty in SLU eligible cases. This will make it difficult for parties to resolve disputes concerning SLUs without litigation and will result increased costs for employers and carriers. Nevertheless, this uncertainly may be acceptable should the proposed guidelines result in lower SLU awards after 1/1/18. Unfortunately, it will be impossible to know the impact of the proposed guidelines until they are implemented and subject to decisions by WCLJs and the Board in future cases.
Additionally, we submit that adding percentage points to SLUs for “loss of earning power” is inconsistent with the concept of a SLU award which is already designed to compensate for presumed loss of future earnings. This new provision, in effect, gives claimants double indemnity for SLU impairments and, in our opinion, is inappropriate and should be rejected by the Board. Moreover, the consideration of loss of earning power appears designed to only assist the claimant in increasing a SLU award, rather than allowing the employer or carrier to seek a lower SLU award in those circumstances where warranted.
We strongly suggest that stakeholders in the workers’ compensation system including employers, carriers, and third-party administrators take the opportunity in the coming weeks to provide comments to the Board concerning the proposed regulations and guidelines. You can click onthis link to read our white paper with our extensive interpretation and analysis.