On September 1, 2017, the New York Workers’ Compensation Board issued draft guidelines and regulatory changes for 2018. The guidelines are intended to revamp the schedule process to align with modern medical practices. The drafts of both the guidelines and regulations appear to include possible errors, omissions, and ambiguities, which will be addressed in the near future. This article will provide a brief overview of the new proposed Schedule Loss of Use (SLU) process and give you an idea of what to expect if the new guidelines are adopted.

Please remember that the guidelines remain open to public comment until October 24, 2017 and, if adopted, will go into effect on January 1, 2018.

In general, the new guidelines continue to mandate that a schedule loss of use award can only be assessed once the claimant has reached maximum medical improvement. The work injury must be amenable to a schedule loss of use per WCL §15 and Section 1.3 of the guidelines.

The guidelines will impose a new requirement for the claimant to complete SLU-1. This requires a claimant’s statement demonstrating an understanding of functional deficits, and addressing questions regarding impact on earning potential. Once the claimant has completed their portion of the form, they provide it to their doctor to complete the remaining portion.

Most SLU awards will now require additional considerations that can impact the overall percentage awarded. These include loss of range of motion, loss of strength, pain, and loss of earning power.

The guidelines require that doctors, including those conducting independent medical examinations (IMEs), assess the initial SLU based on a particular injury site or work related condition. In cases for the arms, legs, and some nerve conditions, the doctor must choose the appropriate impairment category for the claimant’s injury. The doctor is then required to perform a thorough physical examination for the injury site. For cases involving the digits, hands, and wrists, there is no impairment category but instead a thorough assessment of range of motion. There are also special considerations for several injury sites which take the place of the impairment category and other impairments.

The impairment categories are 30 percent point groups, which are assigned based on the chart in each appropriate chapter. There is a range given for each group, this represents the minimum and maximum schedule for that group. We have heard comments from claimants’ attorneys and others who seem to believe that the doctor picks a range in the appropriate category and assigns the schedule that way, then adding in the additional impairments below. This is not the case. The impairment category is the total potential range for the final schedule. This is explained in more detail below, but for example, if a qualifying injury is in category A then the maximum schedule after all considerations made is 30 percent, for B it is 60 percent, and for 90 percent for C.

First, the doctor should measure range of motion three times, and then record the highest value (i.e. the greatest range recorded). If the set of three is not within 10 degrees then the doctor uses the highest ROM measurement and notes the inconsistency. The doctor may assign additional percentage points based on loss of the particular plane of motion. The total potential loss for range of motion at any given joint, including all planes of movement, is 5 percent.

Second, the doctor must assess the claimant’s loss of strength and assign a point value from 0 to 5 (0-5 percent) based on the category the claimant fits into. Please be aware of the difference between the strength grade and points for loss of strength. Points are the percentage added to the schedule loss of use, while the grade is a measurement of strength. Unfortunately, both measurements use a 0-5 scale, are in opposite order, and appear on the same table. If strength findings are inconsistent, the doctor should consider using atrophy findings to adjust the strength score.

The third and final assessment for the doctor is the claimant’s pain. Pain is only considered if there is also loss of strength and/or range of motion. The claimant should be awarded 0-5 points based on how their pain affects their ability to work. This must include a detailed explanation from the doctor as to how the pain score was determined. If the pain score is between 3 and 5, the doctor should (and the Board will) consider if the case is more amenable to classification than schedule loss. Pay close attention to any treating doctor who simply takes the claimant’s visual pain score and divides by two — it is considered an inappropriate method to use when assessing a claimant’s pain for a schedule loss of use award.

Once the forms and development of the record are completed, the Board will make an independent decision on each factor. They will then base their final decision on how the schedule condition affects the claimant’s ability to work. The claimant can be awarded (at the Board’s sole discretion) up to an additional 15 percent schedule loss for loss of earning power.

Unfortunately, the guidelines are silent on how to quantify a claimant’s loss of earning power. More worrisome, the guidelines also limit, and possibly prohibit, the carrier from cross examining the claimant except in certain circumstances. Under the old guidelines this would rarely have been an issue, but with the added consideration of the claimant’s loss of earning power, the impact of this is much more significant. Without cross-examination of the claimant as to the statements on the SLU-1 and their wage earning capacity, it will be difficult to dispute the information the claimant puts on the form.

For example, a schedule for the arm is calculated as follows: The schedule loss starts at the lowest possible schedule loss for the impairment category that fits (i.e. 0 percent for A, 30 percent for B and 60 percent for C), then up to five points are added each for range of motion, loss of strength, pain, and up to an additional 15 percent is added for claimant’s loss of earning potential.

The new guidelines also mandate that the precise calculation of SLUs will differ depending on injury site. We have broken down the major sections to illustrate how various sites should be calculated.

Arms and Legs

For the arms and legs, the guidelines implement a 5-step process for determining schedule loss of use. Alternatively, some medical conditions warrant “special consideration,” which are now assessed independently of other impairment.

First the medical condition (diagnosis) being assessed is placed into an impairment category based on the section regarding each joint. The provider examines the claimant and determines where in the categories the particular impairment or disease fits, this is based on the chart in each joint-specific section. There are some conditions (such as total knee replacements) which can be in multiple categories based on how well the claimant has recovered. This is apparently up to the doctor’s discretion. Impairment categories are A (0-30 percent) B (30-60 percent) and C (60-90 percent). The lowest potential value of the category is now the baseline for the schedule. For example if the claimant has a category B diagnosis, then the base schedule is 30 percent.

Loss of range of motion and strength, pain, and loss of earning power are then added to the baseline.

This is all tallied up and to reach the final schedule. For illustrative purposes: the lowest value for the schedule category (0-60 percent) + loss of range of motion (0-5 percent) + loss of strength (0-5 percent) + pain (0-5 percent) + impairment of earning power (0-15 percent) = the schedule loss of use.

There are still medical conditions that warrant “special consideration” but they are now standalone and no other impairment points are added unless noted specifically. This generally includes things like altered gait, or multiple conditions subject to categorization. Per the guidelines, these conditions receive a set schedule without following the process of categorization, plus points for impairments.

Digits, Hands, and Wrists

Schedules for the digits, hands, and wrists (excluding carpal tunnel syndrome which is still addressed in the chapter covering nerve injuries) are initially assessed in essentially the same method as the old guidelines — measurements are taken for ranges of motion at various joints, with values assigned based on loss of motion. Alternatively, in the case of amputation, there is a table to determine value of the amputation for each digit at various joints, but the guidelines do not mention whether pain or strength should be additional factors for amputations.

The doctor then adds in impairment for pain and loss of strength as noted above. The Board also provides a new table for loading multiple digits into a hand or foot schedule.

To determine the loss of use schedule for digits, hands, or wrists: Schedule as appropriate per measurements (or amputation) + loss of strength (0-5 percent) + Pain (0-5 percent) + impairment of earning power (0-15 percent) = the schedule loss of use.

Again, the guidelines indicate “special considerations” are standalone provisions, supersede any assessment, and are awarded without addition of points for impairments or consideration of ranges of motion. Digit special considerations include mallet and trigger fingers, among other conditions. Most notably there is consideration for loss of feeling for digits which is prorated based on where the loss of sensation is localized

Neuropathies and Nerve injuries

The guidelines provide a SLU assessment for nerve injuries and neuropathies similar to arms and legs. A category of A to C is assigned based on a chart, then additional impairments are added. The range of motion assessment is largely determined by a comparison to the contralateral body site, or based on the chapter addressing the affected site. For example, a nerve injury that affects the shoulder is given range of motion points based on the table in the shoulder chapter.

Strength is measured specifically based on the condition being assessed. For example, in a carpal tunnel injury, grip and thumb abduction strength are measured. The 5-point strength chart is still used.

There is then consideration of sensory loss up to five points. This is based on an objection measurement of millimeters of sensation lost. The pain consideration is the same as noted above and is on a scale of 0-5.

To determine the loss of use schedule for when dealing with neuropathies and nerve injuries: Category minimum schedule (0-60 percent) + Loss of motion (0-5 percent) + Loss of strength (0-5 percent) + Pain (0-5 percent) + impairment of earning power (0-15 percent).

This section also contains “special consideration” that are standalone provisions, requiring the examiner to ignore the physical assessment, categorization, and impairment points process. Confusingly, carpal and cubital tunnel syndrome are both listed as special considerations but then are listed on the strength assessment chart. If carpal and cubital tunnel do fall under special consideration, strength should not be a consideration.

Conclusion

As anticipated, the proposed guidelines contain confusing and contradicting recommendations on how to calculate SLUs and, worryingly, there is a complete lack of guidance of when and how to assess a claimant’s loss of earning power, which will lead to individual Judges applying disparate standards across the state.

We hope that this article helps to shed some light on the new guidelines and procedures. We will be providing an in-depth breakdown of the guidelines shortly. In the meantime,

For more information or if you have any questions or concerns regarding the new guidelines, please contact:

• Mark A. Hauck (585.295.8323; mhauck@goldbergsegalla.com)
• Damon M. Gruber (716.566.5491; dgruber@goldbergsegalla.com)
• Sean J. McKinley (516.281.9833; smckinley@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Workers’ Compensation Practice Group