2017 Reform Update and Proposed SLU Guidelines Presented by: Melissa A. Day…“M.A.D.”

1. 2017 Reform Update and Proposed SLU Guidelines Presented by: Melissa A. Day…“M.A.D.” The Law Offices of Melissa A. Day, PLLC 2390 North Forest Road, Suite 10 Amherst, NY 14221 Phone: (716) 616-0111 mday@getMAD.today www.getMAD.today 2017 Fall Conference October 11, 2017, 11:00 AM Radisson Hotel Corning

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 – Proposed SLU Guidelines

3. Permanent Partial Disability Reforms – Non-Schedule PPDs • Two and a Half Year Limit on TPD and “Safety Valve” • Post-PPD Labor Market Attachment • Extreme Hardship Determination Threshold • Mandatory Full Board Review

4. Two and a Half Year Limit on Temporary Disability Benefits • §15(3)(w)…“For a claimant with a date of accident or disablement after [4/9/17], where the carrier or employer has provided [temporary partial compensation] beyond 130 weeks (2.5 years) from the date of accident or disablement, all subsequent weeks in which compensation was paid shall be considered to be benefit weeks for purposes of this section, with the carrier or employer receiving credit for all such subsequent weeks against the amount of maximum benefit weeks when permanent partial disability under this section is determined. • In the event of payment for intermittent temporary partial disability paid after one hundred thirty weeks from the date of accident or disablement, such time shall be reduced to a number of weeks, for which the carrier will receive a credit against the maximum benefit weeks.”

5. Sounds Good, Right? • D/A: 1/1/18 • Awards: 1/1/18 – 1/1/19, 52 weeks at TT; 1/1/19 – 1/1/21 104 weeks at 50% TP; Total weeks = 156; On 1/1/21 Claimant is classified with a 50% LWEC. • Carrier gets 26 week credit against 300 weeks of PPD benefits. Only 274 weeks to go!

6. But WAIT! Safety Valve • The statutory changes create a safety valve that extends the period of temporary disability beyond 2.5 years (130 weeks) when the Board makes a determination that the claimant has not yet reached maximum medical improvement on that date.

7. Post-PPD Labor Market Attachment • Compensation under this paragraph shall be payable during the continuance of such permanent partial disability without the necessity for the claimant who is entitled to benefits at the time of classification to demonstrate ongoing attachment to the labor market, but subject to reconsideration of the degree of such impairment by the board on its own motion or upon any party in interest…

8. Does this mean What I think it Means? • “Common-Sense Reform of Permanent Benefit Requirements: For workers who receive permanent benefits and cannot enter the job market because of their injury, the budget would enable them to continue to receive benefits and relieve them of the requirement to stay attached to the labor market.” • https://www.nysenate.gov/newsroom/articles/senate-passes-2017-18-state-budget-protects-taxpayers-provides-record-investments

9. What is the Board’s Take? • “The statutory changes provide that after Board determination of permanent partial disability, a claimant who is entitled to benefits at the time of classification is no longer required to demonstrate ongoing labor market attachment. • The statutory change does not affect the question of attachment during periods of temporary disability prior to classification. • This rule takes effect immediately.”

10. Extreme Hardship Determination Threshold • Threshold for determining when a claimant with a permanent partial disability may apply to the Board for a redetermination due to extreme hardship has been lowered. • Claimants who are found to have a LWEC of greater than 75% may now apply for such determination (formerly the threshold was greater than 80%). • This rule takes effect immediately. • The rule also applies to claimants whose claims were previously adjudicated with a LWEC greater than 75%.”

11. Extreme Hardship Redetermination Procedure • Qualifications: Extreme hardship redetermination requests seeking reclassification to permanent total disability or total industrial disability are limited as follows: • The injured worker must be classified with a permanent partial disability of greater than 75%; and • The injured worker must be currently receiving benefits under § 15(3)(w), and be within one year of the scheduled exhaustion of benefits; and • The request for redetermination must be filed with the Board on the appropriate Board form within the year prior to the scheduled exhaustion of indemnity benefits; and • The appropriate Board form is Extreme Hardship Redetermination Request (Form C-35), which must be complete and accurate.

12. Reclassification Standards • “Workers' Compensation Law § 35(3) provides that qualified injured workers may request reclassification to permanent total disability or total industrial disability due to factors reflecting extreme hardship. • The governor's memorandum in support of the workers' compensation reform bill (from the 2007 Reforms) described the extreme hardship redetermination provision as one that ‘provides an exemption [from the PPD caps] for extreme financial hardship, while allowing judges to take into account factors in addition to claimants' income and other available resource.’ • An extreme hardship is a hardship that exceeds the usual or expected, and may include information about expected retirement income. • In order to determine whether or not the injured worker's circumstances meet the standard of an extreme hardship, judges will consider the evidence provided in Form C-35 regarding the value of the injured worker's assets, monthly expenses, and household income from a spouse or other people in the household. • Judges will also consider any other factors listed in the injured worker's application for reclassification.”

13. Form C-35Extreme Hardship Redetermination Request

14. Mandatory Full Board Review • §23. “…If there was a decision or determination by the panel which reduced the loss of wage earning capacity finding made by a compensation claims referee pursuant to subparagraph W of subdivision three of section 15 of this article from a percentage at or above the percentage set forth in subdivision three of section 35 of this article whereby a claimant would be eligible to apply for an extreme hardship redetermination to a percentage below the threshold, the full board shall review and affirm, modify or rescind such decision or determination in the same manner as herein above provided for an award or decision of a referee…”

15. The X Factor – §15(3)(x) • 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.”

16. 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

17. 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.

18. Public Reaction to the Proposed Guidelines

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

20. 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.

21. NY Unions AFL/CIO “Earlier this year, the Governor and the Legislature directed the Workers’ Compensation Board to update its schedule loss of use impairment guidelines to reflect advances in modern medicine that enhance healing and result in better outcomes,” Mario Cilento, New York-based president of the New York State AFL-CIO, said in an emailed statement. “Instead, 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.”

22. 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.

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

24. Comment Period Ticking!!!! • Published 9/1/17 • 45 Day Public Comment Period open and expires on 10/23/17 • https://www.surveymonkey.com/r/ImpairGuideComments.

25. 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.

26. 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.

27. 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.

28. SLU Award Requirements (Chapter 1.3) • MMI • There is a permanent impairment of the arm, leg, hand, foot, eye, thumb, first finger, great toe, second finger, third finger, toe other than great toe, fourth finger. 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 classification

29. 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.

30. Multiple SLUs Where injury results in multiple SLUs 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.

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

32. 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.

33. 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

34. 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.

35. Pain • No pain and suffering. • Pain affect on a claimant’s ability to function can be considered but only when (1) the pain is persistent and is not expected to improve with time, (2) the claimant is also found to have permanent residual physical deficit with respect to range of motion or strength. (3) injury results in impairments of range of motion or strength.

36. 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.

37. 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.

38. Table 1.5.5 Pain

39. Board Determination of SLU • Percentage Loss of Use Reflective of the Permanent Impact on Claimant’s 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.

40. Prior SLU Award • Can receive a subsequent SLU if there was a prior SLU to the same extremity • 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 • 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.

41. Changes to the IME Regulation • Claimant no permitted to obtain their own IME • May be a new form promulgated for SLU IME • IME must copy any attending physician who treated in the past six months prior to the date of the notice for the IME. • Claimant must cooperate with the IME, accurately and truthfully complete any intake sheets and answer any questions • Failure to cooperate = 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.

42. New §300.39 – Schedule Loss of Use • Defines SLU and the process for awarding one • 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)

43. §300.39(d) SLU-1 • (d) An intake in the format prescribed by the Chair (SLU-1) must be completed by the claimant (with the assistance of counsel if the claimant is represented). A portion of the form shall be completed by the medical provider with respect to restrictions at the time of evaluation. The SLU-1 form is designed to capture 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. • The SLU-1 is affirmative evidence proffered by the claimant, and the 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 regarding a key issue and upon a grant by the WCLJ. Such a grant or denial of cross-examination shall not be reviewable by the Board under Workers' Compensation Law section 23 until a decision has been made by a WCLJ disposing of the issues surrounding permanent impairment.

44. 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 and be authorized by the Board. Treating podiatrists may evaluate. • (a)(2)IME docs must be authorized. • (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.

45. 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.

46. 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%).

47. Knee Categorization of Residual Impairment

48. Knee Permanent Residual Impairment – ROM and Strength

49. Knee Permanent Residual Impairment Pain

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