1. Statutory authority: The Workers’ Compensation Board (hereinafter referred to as Board) is authorized to add 12 NYCRR 325-1.6. Workers’ Compensation Law (WCL) Sections 141 and 117(1) authorize the Chair to adopt reasonable rules consistent with and supplemental to the provisions of the WCL. WCL section 15(x) requires the Board to adopt new permanency impairment guidelines.

2. Legislative objectives: Section 15(x) of the WCL requires the Board to consult with labor, business, medical, and insurance representatives on revisions to the permanency impairment guidelines. The Board must propose for public comment revised permanency impairment guidelines for the schedule loss of use injuries covered by paragraphs (a) through (v) of subdivision (3) of section 15 of the WCL. The revisions will reflect the advances in modern medicine that result in better outcomes. The Board must adopt the new permanency guidelines by January 1, 2018. The 2012 Permanency Guidelines paragraphs pertaining to WCL § 15(3)(a)-(v) will be repealed on January 1, 2018.

3. Needs and benefits: Section 325-1.6 incorporates by reference the proposed 2017 Workers’ Compensation Guidelines for Determining Impairment.

4. Costs: There are no additional projected costs to regulated parties who may be affected by the amendment, as the regulation adopts permanency impairment guidelines designed to reflect improved healing and outcomes. There are no projected costs to the Board, State and local governments.

5. Local government mandates: The proposed amendment does not impose any additional mandate, duty or responsibility upon any municipality or governmental entity.

6. Paperwork: The proposed regulations do not require additional paperwork.

7. Duplication: The statutory authority for the revision to the impairment guidelines exists in section 15(x) of the WCL. It explicitly requires regulations to adopt revised permanency impairment guidelines.

8. Alternatives: There were no significant alternative proposals under consideration.

9. Federal standards: There are no applicable federal standards which address the standards contained in the proposed regulation.

10. Compliance schedule: There is no new compliance burden on employers.

1. Effect of rule:

This proposed rule applies to any claimant seeking a schedule loss of use determination. It provides impairment guidelines for conducting impairment evaluations and making schedule loss of use determinations. The rule will have no effect on local governments.

2. Compliance requirements:

Under this new rule, evaluations of permanent impairment must be completed using the Workers’ Compensation Guidelines for Determining Impairment.

3. Professional services:

The Board believes that no professional services will be needed to comply with this rule. This new rule simply offers revised guidelines on making schedule loss of use determinations.

4. Compliance costs:

This proposal does not involve any new compliance costs. It offers revised guidelines for making schedule loss of use determinations.

5. Economic and technological feasibility:

No implementation or technology costs are anticipated for small businesses and local governments for compliance with the proposed rule. Therefore, it will be economically and technologically feasible for small businesses and local governments affected by the proposed rule to comply with the rule.

6. Minimizing adverse impact:

The Board does not anticipate any increased costs or adverse impact, other than revised guidelines to follow in making schedule loss of use determinations. The new rule establishes guidelines for making those determinations in response to a legislative mandate.

7. Small business and local government participation:

Pursuant to the legislative mandate the Board conferred and consulted with labor, business, medical providers, insurance carriers and self-insured employers on the draft Impairment Guidelines on August 15, 2017 at Board offices around the State.

1. Types and estimated numbers of rural areas:

This rule applies to any schedule loss of use determinations for claimants in New York State, regardless of geographical location. The proposed regulation provides a revised system for evaluating permanent impairment and applies to all claimants.

2. Reporting, recordkeeping and other compliance requirements:

Under this rule, the evaluations of permanent impairment must be made in the format prescribed by the Chair. There is currently a form (C-4.3) that is used for this purpose. It has simply been included with the incorporation of the Impairment Guidelines for clarity’s sake.

3. Costs:

This proposal will not impose any compliance costs on rural areas. The role solely implements revised Impairment Guidelines.

4. Minimizing adverse impact:

This proposed rule is in response to a legislative mandate, and establishes revised impairment guidelines for use in schedule loss of use determinations.

5. Rural area participation:

The Board is implementing these guidelines in response to a legislative mandate.

1. Nature of Impact

The impairment guidelines proposed in these rules are not expected to have any impact on jobs in New York State. These guidelines simply create a system to help in making schedule loss of use determinations.

2. Categories and Numbers Affected

The impairment guidelines are not expected to have any adverse impact on jobs.

3. Regions of Adverse Impact

The impairment guidelines do not affect any region specifically, but impact across the state – however, these guidelines are for making schedule loss of use determinations and are not expected to have any impact on jobs.

4. Minimizing Adverse Impact

The proposed rules provide that medical examinations in determining impairment comply with the Workers’ Compensation Guidelines for Determining Impairment. There is not expected to be any impact on jobs with these guidelines.

The Chair and Board received approximately 400 formal written comments from Survey Monkey, emailed comments, and regular mail. Additionally, the Board received approximately 1,993 form letters from individuals using a website form, approximately 398 form letters from individuals, a petition with approximately 7,875 signatures, and approximately 17,000 postcards.

After the public comment period closed, the Board received an additional 1,100 postcards from associations objecting to the proposed changes, as well as approximately 37 additional form letters, a hard copy of a form letter with approximately 780 signatures from a labor organization, and approximately five comments from individuals.

Most of the comments received by the Board objected to the proposed changes, citing the legislative mandate to take into account advancements in modern medicine only and that the proposals were broader than necessary.

Most detailed comments, from claimant representatives and associations as well as business owners, carriers, health care providers, and in some instances individual claimants, objected to the use of pain as a factor in SLU awards, because it’s too subjective.

The Board received many comments from various individuals and associations, as well as legislators, objecting to the ability of injured workers to be questioned without counsel and the use of a questionnaire, as well as the requirement that claimants be cooperative.

Nearly all comments from claimant organizations, TPAs and law firms, as well as several comments from legislators, objected to the use of loss of earning power as a factor in determining SLU awards.

Many of the written comments from individuals objected to changing the impairment guidelines at all.

The full Assessment of Public Comment can be viewed at: www.wcb.ny.gov/revised-impairment-guidelines-regulation