In early 2017, the New York State legislature amended the Workers’ Compensation Law requiring the Workers’ Compensation Board to adopt new guidelines for schedule losses of use (SLU). The Board released proposed regulations in September 2017, drastically changing how schedule losses of use were to be implemented. After a public review period marked by outcry on all sides, the Board scrapped the first proposal and has released new guidelines with more modest changes.

Briefly, the initial proposed guidelines split extremities into impairment categories and added considerations for pain, strength, range of motion, and, most surprisingly, loss of earning power. Additionally, the proposed guidelines significantly limited the claimant’s ability to obtain independent medical examinations (IMEs) and the carrier’s ability to question the claimant about earning power. The proposals were riddled with ambiguities, errors, and unanswered questions.

The public outcry was nearly universal from all sides. The Board released a summary of the more than 400 public comments it received and conducted a formal hearing. The main complaint was that the Board failed to bring the guidelines in line with “advances in modern medicine” as the legislation had directed.

Following the public comment period the Board removed the contentious regulatory changes, including an amended section 300.22, and new sections 300.39 and 325-1.6. The proposed restrictions on claimants getting IMEs, the requirements that claimants cooperate with IMEs, the criteria for an SLU determination (including those provisions regarding pain, strength, and loss of earning power), and the SLU-1 disappeared from the regulations.

The new, final regulations contain a rewritten section 325-1.6, which simply outlines that SLU evaluations must be performed in accordance with the new guidelines effective 01/01/2018, and provide instructions on how to obtain a copy of the guidelines.

The New Guidelines: An Overview

The new guidelines are little more than a revamped version of the 1996/2012 guidelines.

The introductory sections remain nearly identical to those in the 2012 guidelines, but each subsequent section now begins with a statement of “Objectives and Methods.” There is also an added provision in section 1.3 that the total loss due to range of motion defects should not exceed ankylosis for the joint and the “sum of multiple ankylosed joints of a major member cannot exceed the value of amputation.”

The guidelines were also updated with new and more detailed diagrams for various joints and extremities, along with instructions as to how measurements are taken. The charts are easier to read and better organized. This improved design will help lay people understand what an SLU determination means and how it is calculated. This should also help to ensure more consistent schedule loss findings from doctors.

For the vast majority of schedules, the percentage values assigned to each limb remain, for the most part, unchanged from the 1996 and 2012 guidelines.  There are some changes to the loading of digits and amputations (amputations of the index finger and thumb are not loaded at 200 percent anymore and are instead considered with hand schedules). There is also clarification as to what ranges of motion should be considered mild, moderate, or marked in certain sections. The most significant changes are how joint replacements are assessed. There are apparently no changes to the portions of the guidelines regarding the nervous system, visual system, facial scarring, or hearing loss.

The Board, in issuing these new guidelines, clearly focused on improving existing guidelines rather than trying to overhaul the entire system. The Board focused on increased clarity and specificity in how physicians should determine measurements and how the SLUs should be calculated.

Summary of Changes

• Ankylosis of the elbow now has two values. Under the old guidelines this was 90 percent; now, if the arm is in a position of function the schedule starts at 66 and two thirds percent.
• There is now a table for defects in internal/external rotation of the elbow, including new values for moderate and marked defects of internal or external rotation.
• There is a new consideration for the shoulder: If there are defects of flexion and abduction then the greater of the two is utilized rather than both. However, if both defects are moderate or higher and they measure within 10 degrees of each other there may be an additional 10 percent added, not to exceed ankylosis.
• Resection of the head of the humerus with prosthesis no longer has its own consideration.
• There is no longer a special consideration for the rotator cuff (presumably the schedule would be based on range of motion).
• There is now a table dedicated to shoulder joint replacement which focuses on the results of the surgery and the favorability of the outcome. Rather than a final schedule of 60–66 and two-thirds percent percent of the arm, the range is now 35 percent for a good result and up to a maximum of 80 percent for a poor one. Unlike the prior draft, this table defines these outcomes.
• The ranges of motion for hip schedules were clarified and are now true ranges rather than flat values.
• There is now a table to address joint replacement, osteotomy, and arthroplasty of the hip. Rather than a 60–66 and two-thirds percent schedule for hip replacement, the range is now 35 percent for a good result up to 80 percent for a poor result. As with the shoulder, these guidelines define how outcomes are assessed.
• A schedule for osteochondritis dessicans of the knee is now predicated on residual impairment.
• The special consideration for medial or lateral meniscus excision is gone.
• As with the other joint replacements there is now a chart for knee replacement. Rather than 50–55 percent for a knee replacement the range is now 35 percent for a good result up to 80 percent for a poor one.
• There is now a chart for losses of motion of the “smaller toes” rather than a reference to the finger charts.

Takeaways for Claims Professionals and Attorneys

The new guidelines should help claimants, claims professionals, attorneys, and doctors in understanding schedules. We hope the clarifying language and diagrams will lead to more consistent SLUs. By and large, the Board chose to bend to public opinion, ignore the severe and persistent issues with SLU awards, and simply re-issue the old guidelines with better diagrams. SLUs will be calculated essentially the same way that they have been for the last 21 years, with some minor tweaks to look out for.

For more information, please contact:

• Mark A. Hauck
• Debra L. Doby
• Damon M. Gruber
• Or any member of the Workers’ Compensation Practice Group