In April, part of the New York budget mandated numerous reforms to the New York Workers’ Compensation system. Workers’ Compensation law §15(3)(x), required the Board to implement new Permanency Impairment Guidelines for Scheduled Loss of Use (SLU) evaluations, with an effective date of January 1, 2018. The new SLU guidelines can be found here.
The Board made public “proposed” draft Schedule Loss of Use guidelines in September 2017 which were widely thought to be favorable to employers/insurance carriers and included some significant changes to the Schedule Loss of Use section of the existing 2012 Guidelines for “Determining Permanent Impairment and Loss of Wage Earning Capacity.” After some serious push back from claimant attorneys and trade unions, the Board issued new “proposed” draft Schedule Loss of Use guidelines in November 2017. I appeared on the Third Fridays podcast [listen here] in December to discuss the significant differences between the first draft of the proposed changes released in September 2017 and the second draft of proposed changes posted on the Board website in November 2017.
The second guidelines proposed in November 2017 are the new SLU Guidelines that went into effect as of January 1, 2018. According to a Board Bulletin:
The 2018 SLU Guidelines will replace chapters in the existing 2012 Medical Impairment Guidelines with respect to SLU, and will take effect January 1, 2018. The 2012 Guidelines remain unchanged for determining non-schedule permanent impairments. For SLU claims that have at least one examination conducted before January 1, 2018, the Board will consider the issue of SLU to have been joined under the auspices of the Guidelines in effect at the time, and as such the Board will determine the claimant’s degree of permanent disability using the 2012 Guidelines. Where the first medical evaluation of SLU occurs on or after January 1, 2018, the question of SLU will be evaluated under the 2018 SLU Guidelines.
While the new SLU guidelines are not seen as being as employer/carrier “friendly” as the initial proposed Guidelines released in September, there are still some changes that are in the carrier/employer’s favor. Lois LLC provided a training webinar on the new SLU Guidelines, which I highly recommend.
The primary consideration in determining SLU under these new guidelines is loss of range of motion. The most significant changes from a review of the 2018 SLU guidelines pertain to total knee replacement surgeries, meniscal tears and rotator cuff injuries:
- Under the 2012 SLU guidelines, with or without surgery the claimant was entitled to between 10-15% SLU for a rotator cuff tear. The 2018 guidelines do not include this automatic consideration and there is no longer an automatic 10-15% SLU finding for a rotator cuff tear.
- Under the 2012 SLU guidelines, a claimant who has a work-related meniscal tear that was surgically repaired automatically was found to have 7.5-10% SLU as a special consideration in addition to any other SLU finding. Under the 2018 guidelines, this special consideration no longer exists and there is no longer an automatic 7.5% – 10% SLU added simply because a claimant with a meniscal tear underwent surgery.
- Under the old guidelines, the guidelines specify the average SLU for a total knee replacement is 50-55%. The new guidelines indicate that a “good outcome” for a total knee replacement is 35% SLU of the leg.
It is important to note, the changes only pertain to Schedule Loss of Use and claims that resolve with a Loss of Wage Earning Capacity finding will continue to use the 2012 permanency guidelines.
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