Lunch and Learn Presentation on Proposed SLU Guidelines – A Modest Proposal

1. Lunch and Learn Presentation Prepared Especially for A Modest Proposal - Proposed SLU Guidelines Corvel Corporation 251 Salina Meadows Pkwy #240 North Syracuse, NY 13212 Friday November 10, 2017 Sponsored and Presented by Law Offices of Melissa A. Day, PLLC Support Claims Services, Inc. www.getMAD.todaywww.supportclaimservices.com

2. 2017 Reforms…Now What? Permanent Partial Disability Reforms – Non-Schedule PPDs Two and a Half Year limit for TPD and Safety Valve Post-PPD LMA Extreme Hardship >75% Drug Formulary First Responder Stress Claims Permanent Impairment Guidelines

3. Board Must Adopt New Permanent Impairment Guidelines by 1/1/18 which will incorporate advances in medicine that result in better healing and outcomes for injured workers to use in evaluations and determinations for schedule loss of use awards. The statutory change requires the Chair to publish the Impairment Guidelines for public comment pursuant to the State Administrative Procedure Act on or before 9/1/17. In the event the Chair does not adopt guidelines by 1/1/18, the legislation requires the Board to adopt interim regulations. New Impairment Guidelines will be effective on 1/2/18. As of 1/2/18 the old SLU Guidelines “shall have no effect.” The X Factor – §15(3)(x)

4. Chair Has Proposed New Guidelines Subject # 046-978: http://www.wcb.ny.gov/content/main/SubjectNos/sn046_978.jsp. The Guidelines for Determining Impairment – a.k.a. S.L.U.G. Amending §300.2 (IME) Adding two new sections: §300.39 and §325-1.6

5. How Did the Guidelines Get Written? New York State Society of Orthopedic Surgeons served as the Board’s consultant in developing the initial draft permanent impairment guidelines. On 8/15/17, the Board, together with the Orthopedic Society, conferred and consulted with a group of key stakeholders and their medical experts, as set forth in the 2017 legislation (WCL § 15[3][x]). Stakeholders: New York AFL-CIO, NYS Business Council, Medical Society of the State of New York, New York State Insurance Fund, Zurich Insurance on behalf of the insurance carriers, NYS Osteopathic Medical Society, NY Self-Insurance Association, and the New York City Law Department.

6. Public Reaction to the Proposed Guidelines

7. Workers’ Compensation Alliance “Proposed Schedule Loss Guidelines End Compensation for Permanent Injuries”

8. Injured Workers’ Bar Association The existing 1996/2012 guidelines methodology is based almost entirely upon assessments of residual functional impairment, which automatically results in a lesser percentage as medical technology improves. The new guidelines contain no indication as to how they serve the legislative purpose of reflecting “advances in modern medicine.” The Board lacks the legislative authority to consider impact on earning capacity as part of the schedule loss of use assessment. The proposed limitation on a claimant’s right to obtain an IME, while permitting insurers to retain this right, is discriminatory on its face, contrary to the statute, and entirely inconsistent with the humanitarian intent of the compensation law. The vague new requirements that injured workers be “cooperative” and non-disruptive at an insurance company’s IME are punitive and serve no useful purpose. The inclusion of pain as an element of schedule loss assessment, with the simultaneous admonition that any rating of three or higher may result in a classification finding, even if all doctors agree the case is amenable to schedule closure, is wholly improper. The new distinction between digit/wrist and other injuries based upon their purported occupational significance is misplaced.

9. NY Unions AFL/CIO “…the Board took it upon itself to totally rewrite the guidelines and propose other regulatory changes with an eye toward slashing benefits. If enacted, this package would drastically reduce awards for workers that lose the use of a body part and introduce changes to the process that would lead to ever increasing uncertainty, delay, and litigation for injured workers. This proposal runs counter to the intent of the legislation.”

10. The Business Council of NYS “…We are concerned with those who have minor injuries ... who are returning to work in very near time and were receiving 5- and 6-digit payoffs.” Lev Ginsburg, Esq., Director of Government Affairs In 2015, state employers, small government and local government, paid $1.3 billion in scheduled loss of use awards, $900 million of which were for people who missed less than 2 weeks of work.

11. NYS Legislature Public Hearing September 26, 2017 at 1:00 PM http://nystateassembly.granicus.com/MediaPlayer.php?view_id=8&clip_id=4340

12. Initial Comment Period Ended Published 9/1/17 45 Day Public Comment Period open and expires on 10/23/17

13. Effective Date Any schedule loss of use determinations made by the Board on or after 1/1/18 shall be in accordance with these guidelines. If permanency is not decided by 1/1/18, then the Board will apply the new SLUG.

14. What is a SLU Award? Not pain and suffering. Compensation for permanent loss of earning power resulting from a permanent residual physical deficit. Not allocable to any particular time frame. Factual determination made by the Board based on medical evidence of permanent residual physical deficit which is consistent with these Guidelines, and the impact on the claimant’s earning power.

15. Awarding SLU SLUG establish the methodology for evaluation of medical impairment, i.e. the permanent residual physical deficit as it exists at the time of maximum medical improvement. The finding of permanency is to be made by the Board, based on the evidence of the permanent medical impairment’s measured impact on the earning power of the disabled claimant.

16. SLU Award Requirements (Chapter 1.3) MMI (a) when the claimant has recovered from the injury to the greatest extent that is expected and (b) no further improvement in his or her condition is reasonably expected. The need for palliative or symptomatic treatment does not preclude a finding of maximum medical improvement. There is a permanent impairment of one or more extremities listed in WCL §15(3)(a) – (l). The impairment involves permanent residual physical deficits to soft tissue, bone, sensation, dexterity and power, and may also include atrophy, scarring, deformity, mobility defects and shortening. If the same accident results in multiple injuries, either directly or consequentially, one or more of which may not be the subject of a schedule award (e.g., back, neck, head, depression), all non-schedulable injuries have reached maximum medical improvement and are found by the medical provider to have fully resolved, with medical evidence that no permanent residual impairment exists. The permanent impairment of an extremity is not amenable to a permanent partial disability classification pursuant to paragraph (w) of subdivision 3 of section 15 of the Workers' Compensation Law.

17. Examples of Non-Schedule Permanent Impairments Progressive and severe painful conditions Mal-union of the long bones. Aseptic necrosis of the head of the femur or other bones. Severe and persistent instability of the knee joint or other major joints. Recurrent dislocations (shoulders). Amputees with neuromas or poorly healed stumps. Failed joint replacement such as total hip, total knee and shoulder replacements.

18. Multiple SLUs Where the injury results in multiple schedules to major members, with two or more significant schedule awards loss of use, the Board may consider medical evidence that the multiple major member schedule constitutes ongoing systemic injury which is more appropriate for classification.

19. Using the Guidelines – Two Steps Medical Providers assess permanent residual physical deficit; Board uses that information to determine if an SLU award is appropriate and if so, the amount.

20. Medical Assessment Review the SLUG and medical recordsand perform a thorough history and physical exam and detailing relevant medical history, examination findings and appropriate test results, validating if necessary with tools such as QuickDash, etc. State the work related medical diagnosis(es) based upon the relevant medical history, examination and test resultsand identify the affected body part or system. Prepare and attest to a medical opinion on impairment, which should consist of the following elements: Whether claimant is at MMI. Whether the claimant’s injury is permanent, and amenable to schedule (see 1.3, above). Identification of the injury(ies) in terms of severity or category as appropriate. For each injury, unless a special condition exists, the applicable category of injury is selected. The medical provider then measures the permanent residual physical deficit with respect to: range of motion (impairment of gait and deformity may also be assessed if expressly provided in the Guidelines for particular diagnosis); strengthand pain. peripheral nerve injuries and compression neuropathies (Chapter 10), including finger injuries, also permit consideration for loss of sensation.

21. Medical Assessment Injuries are categorized based on permanent residual physical deficit. Medical provider then measures the permanent residual physical deficit with respect to: range of motion strength and pain.

22. Range of Motion ROM findings should be assessed in contrast to the contralateral limb. Measure active unassisted motion while the claimant is exhibiting full effort Goniometer preferred Measure three times

23. Muscle Strength Again, should be assessed in contrast to the contralateral limb. Muscle Atrophy should be used to adjust the strength score when the muscle strength measurement results seem inconsistent with expected findings.

24. Pain The WCL does not provide benefits for pain and suffering. However, residual pain may affect a claimant’s ability to function and, therefore, should be considered when determining the overall award. Residual pain should only be considered in assessing a claimant’s impairment percentage when (1) the pain is persistent and is not expected to improve with time, and (2) the claimant is also found to have permanent residual physical deficit with respect to range of motion or strength. If an injury does not result in impairments of range of motion or strength, no additional impairment percentage may be added to the minimum impairment percentage for the injury based upon pain alone.

25. No Pain and Suffering in Comp A schedule loss of use award compensates a claimant for the permanent loss of earning power resulting from the permanent residual physical deficit that an injury causes, and is not intended to compensate a claimant for pain and suffering. Therefore, residual pain caused by an injury should only be considered when determining a claimant’s impairment insofar as the pain impairs his or her functional abilities.

26. Pain ≥ 3 = Classification When a medical provider renders an opinion on the impairment of an extremity which includes an assessment of residual pain of three or greater on a scale of zero to five, the provider should strongly consider finding the injury to be amenable to a permanent partial disability classification, rather than a schedule award. Regardless of the conclusion of the medical experts concerning whether an injury is amenable to a schedule award, rather than a permanent partial disability classification, when there is medical evidence in the record of residual pain of three or greater on a scale of zero to five, the Board may nonetheless conclude that the injury is not amenable to a schedule award.

27. Table 1.5.5 Pain

28. Board Determination of SLU – Percentage Loss of Use Reflective of the Permanent Impact on Claimant’s Earning Power • Maximum medical improvement; • Amenability to a schedule loss of use; • Proper categorization of severity of injury(ies) as indicated by the opining medical provider(s); • Permanent residual physical deficit as measured by the opining medical provider(s); and • Level of permanent impact on earning power. • Board has the discretion to add an additional value of up to 15% to the impairment finding, not to exceed 100% of the affected body part, but only once.

29. Prior SLU Award A claimant who previously received an SLU may receive another SLU for the same extremity based on a subsequent injury. The later SLU should be based on the claimant’s current permanent residual physical deficit, assessed pursuant to these Guidelines, with a credit given for the prior SLU, regardless of whether the prior SLU was assessed based on these Guidelines, or earlier impairment Guidelines. Example: Prior SLU of 10% of the leg based on a knee injury. After a subsequent work-related knee injury has reached MMI, claimant is found to have an overall 25% SLU of the leg. Claimant is awarded an additional 15% schedule loss of use of the leg.

30. Changes to the IME Regulation §300.2(b)(4) Amended to deny the claimant the ability to request an IME Exception: 1.) When directed by the board; 2.) Upon demonstration at the treating provider is unwilling or unable Carrier is liable for reasonable fees and costs associated with the evaluation once ordered.

31. Changes to the IME Regulation (Cont.) §300.2(d)(2) IME for SLU must be performed consistently with the SLUG and made “on a form prescribed by the board.” This suggests that there may be a new IME form.

32. Changes to the IME Regulation (Cont.) §300.2(d)(4)(iii) The IME report must copy “any attending physician or practitioner who is true the claimant in the past six months prior to the date of the notice for the IME.”

33. Changes to the IME Regulation (Cont.) §300.2(d)(7) The claimant must cooperate at all times during the IME and must accurately and truthfully complete any questionnaire or intake sheets and must answer any questions asked during the IME The board can take a negative inference including a finding that the claimant has refused to submit to the IME for failure to complete a questionnaire or for the claimant or the claimant’s companions disruption of the evaluation which can lead to a suspension of benefits.

34. New §300.39 – Schedule Loss of Use An SLU is a legal determination that sets forth a percentage loss of use reflective of the Board’s judgment as to the permanent impact on claimant's earning power. (a) An evaluation of permanent impairment which is submitted regarding schedule loss of use must address the following: MMI Whether there is a permanent impairment of one or more extremity listed in §15(3)(a) – (l) Whether the impairment involves anatomical and/or functional deficits. Restrictions at the time of evaluation.

35. §300.39 – Schedule Loss of Use (Cont.) (b) …must be completed in the format prescribed by the Chair and be based upon correct application of the guidelines; (c) If same accident results in multiple injuries and one or more of such injuries are not subject to an SLU determination, all injuries not amenable to a SLU shall have reached MMI and be found by the provider to have fully resolved, with no residual impairment. (e) Board may consider if whether the injury is amenable to an SLU using examples from section 1.3. (Classifiable conditions) (f) Board can use the appropriate method for development of the record to determine SLU: Proposed stipulation of the parties pursuant to §312; Approval of formal stipulation of the parties pursuant to §300.5; Proposed conciliation decision pursuant to §312; §32; Reserve decision by WCLJ after off-calendar development of the record; or The formal hearing process (g) The board may decline to issue a schedule loss of use award upon a finding that the claimant failed to cooperate with a medical examination, including failure to accurately complete the SLU intake form (currently the SLU-1).

36. §300.39(d) SLU-1 Intake in the format completed by the claimant (with the assistance of counsel if the claimant is represented). Portion completed by the medical provider with respect to restrictions at the time of evaluation. Captures information about the impact of the injury upon claimant's earning power, including medical restrictions and wage and work-schedule information. Medical restrictions noted must refer to documents in the claims file. Affirmative evidence and claimant's attorney may not seek to produce the claimant as a witness in lieu of, or to bolster, the SLU-1 form. Cross-examination by the carrier is not permitted except upon an offer of proof (interlocutory decision)

37. New §325-1.6: SLU Exams & Report (a)(1) Medical providers must have treated the claimant for the injury that is the subject of the evaluation. (a)(3) Out of state docs don’t have to be authorized but they must use the proper form and use the SLUG. (b)SLU evaluations shall be performed in accordance with the guidelines, First Edition, 9/1/17 effective 1/1/18, which are incorporated by reference.

38. New §325-1.6: (Cont.) When the first impairment evaluation is completed by an independent medical examiner on behalf of the insurance carrier or self-insured employer: 1. the claimant may bring a completed SLU-1 to the examination for review by the independent medical examiner; or 2. the SLU-1 may be supplied to the independent medical examiner after the impairment evaluation and considered by him or her in an addendum to the report of independent medical examination.

39. New §325-1.6: (Cont.) (d)(6). The report must identify the affected body part, indicate if the claimant is at MMI, indicate whether the claimant's injury is permanent, and amenable to schedule; and provide an indication regarding the applicable severity of the category of injury; Anatomical or functional losses must be measured with respect to: (1) range of motion (2) strength, and (3) pain (if applicable). Other losses may be specifically noted, pursuant to the Guideline for the relevant body part or injury (for example impairment of gait and deformity for leg injuries). Any work restrictions, must be stated with a detailed explanation how these restrictions will, or are expected to, impact the claimant's ability to function in the workplace. The lowest percentage impairment identified in the Categorization of Injuries table for each member body part shall be the starting point for each permanent impairment evaluation of a particular work related injury. For permanent impairment evaluations to the arm and legs, the medical provider may add to the lowest percentage impairment identified in the Categorization of Injuries table for each member body part up to 5 additional percentage points for loss of range of motion, strength and pain, provided that pain percentage points may not be added if there is no loss of motion or strength; When the pain score is greater than 2, the medical provider should consider whether the injury is amenable to a permanent impairment evaluation for a schedule loss of use determination. Claimant's cooperation in the conduct of the evaluation of permanent impairment is essential to an accurate assessment. A medical provider must note when and how a claimant fails to cooperate.

40. The Chapters – Injury Sites Chapter 2: Upper Extremity – Digits; Chapter 3: Upper Extremity – Hand and Wrist; Chapter 4: Upper Extremity – Elbow; Chapter 5: Upper Extremity – Shoulder; Chapter 6: Lower Extremity – Hip and Femur; Chapter 7: Lower Extremity – Knee and Tibia; Chapter 8: Lower Extremity – Ankle and Foot; Chapter 9: Lower Extremity – Great and Lesser Toes; Chapter 10: Peripheral Nerve Injuries and Compression Neuropathies; and, Chapter 11: Visual System/Auditory System/Facial Scars and Disfigurement.

41. Knee MMI – In most cases is one year after injury or from the date of the last surgery. Severity of permanent impairment has nothing top do with mechanism of injury but may include physical damage to bone, muscles, cartilage, tendons, nerves, blood vessels, and other tissues. The severity of the permanent residual physical deficit associated with the injury has been categorized: Category A (0-30%), Category B (30-60%), Category C (60-100%).

42. Example #1 Knee Replacement with a “Very Good Outcome”

43. Knee Categorization of Residual Impairment

44. Knee Permanent Residual Impairment – ROM and Strength

45. Knee Permanent Residual Impairment Pain

46. Schedule Value SLU = Base Percentage + ROM + Strength + Pain + Board’s Discretionary Additional Value

47. Comparison 50% * 288 = 144 * $870.61 = $125,367.84 2% * 288 = 5.76 * $870.61 = $5,014.71 Savings of $120,353.13.

48. Example #2 Knee Replacement with a “Good/Fair Outcome”

49. Knee Categorization of Residual Impairment

50. Knee Permanent Residual Impairment – ROM and Strength