A new section 300.39 is added to Title 12 of NYCRR that reads as follows:

Schedule loss of use determinations are made for permanent impairments to an extremity, permanent loss of vision or hearing, or permanent facial disfigurement, as provided in Workers' Compensation Law Section 15 subdivision (3)(a-t). A schedule loss of use award is a legal determination that sets forth a percentage loss of use, based upon the evidence in the file, reflective of the judgment of the Board as to the permanent impact on claimant’s earning power. A schedule loss of use award compensates for the permanent loss of earning power resulting from the residual anatomical or functional impairments that result from an injury. A schedule loss of use determination is made by the Board upon attainment of maximum medical improvement and upon presentation of the required documentary evidence.

a) An evaluation of permanent impairment which is submitted regarding schedule loss of use must address the following:

1. Whether the injured worker has reached maximum medical improvement, which occurs when the worker has recovered from the injury to the greatest extent that is expected and 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.

2. Whether there is a permanent impairment of one or more extremity listed in paragraphs (a) through (l) of subdivision 3 of section 15 of the Workers' Compensation Law.

3. Whether the impairment involves anatomical and/or functional deficits.

4. Restrictions at the time of evaluation.

b) Medical evidence of an evaluation of permanent impairment must be completed in the format prescribed by the Chair and be based upon correct application of the Workers’ Compensation Guidelines for Determining Permanent Impairment.

c) If the same accident results in multiple injuries, including consequential injuries, and one or more of such injuries are not subject to a determination pursuant to Workers' Compensation Law Section 15 subdivision (3)(a-t) (e.g., back, neck, head, depression), all injuries not amenable to a schedule loss of use determination shall have reached maximum medical improvement and be found by the provider to have fully resolved, with no residual impairment.

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.

1. Medical restrictions noted must refer to documents in the claims file.

2. 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.

3. 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,

e) In making a schedule loss of use determination, the Board may consider if applicable whether the injury is amenable to a schedule loss of use award in accordance with examples listed in the Workers’ Compensation Guidelines for Determining Impairment section 1.3.

f) Upon submission of medical evidence of permanency, the Board will utilize the appropriate method for development of the record to resolve the issue of schedule loss of use by:

1. Approval, if proper, of proposed stipulation of the parties pursuant to part 312 of this Chapter;

2. Approval, if proper, of formal stipulation of the parties pursuant to section 300.5 of this Part;

3. Proposed conciliation decision, finalized if no timely objection received, pursuant to Part 312 of this Chapter;

4. Waiver agreement per section 32 of the Workers’ Compensation Law;

5. Reserve decision by workers’ compensation law judge following off-calendar development of the record; or

6. If there is a dispute, through 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).

Add a new 325-1.6

325-1.6 The Impairment Examination for Schedule Loss of Use Determinations

Regardless of the date of accident or disablement, when an examination is performed by a medical provider for the purpose of evaluating permanent impairment for use in a schedule loss of use determination, the following rules shall be followed:

a) Treating medical providers and independent medical examiners.

1. Medical providers must have treated the claimant for the injury that is the subject of the evaluation. Such medical provider must be authorized by the Chair in accordance with section 13-b of the Workers’ Compensation Law. Treating podiatrists, authorized pursuant to section 13-k, who have treated the claimant for a foot injury may evaluate the claimant’s permanent impairment.

2. Medical providers authorized by the Chair to perform independent medical examinations in accordance with section 137(3) of the Workers’ Compensation Law may evaluate a claimant’s permanent impairment on behalf of the insurance carrier or self-insured employer, or when expressly permitted by the Board, the claimant.

3. Medical providers performing impairment evaluations of claimants living in New York, and medical providers with offices in New York who perform impairment evaluations, must be authorized by the Workers’ Compensation Board. Medical providers who do not practice in New York may perform an impairment evaluation on a claimant who does not live in New York, but must comport with Workers’ Compensation Guidelines for Determining Impairment, and must submit his or her evaluation in the format prescribed by the Chair.

b) All evaluations of permanent impairment for use in a schedule loss of use determination shall be performed in accordance with the Workers’ Compensation Guidelines for Determining Impairment, First Edition, September 1, 2017, effective January 1, 2018, which is herein incorporated by reference.

c) All evaluations of permanent impairment for use in a schedule loss of use determination must be completed in the format prescribed by the Chair and shall include the Chair prescribed intake form (currently the SLU-1) completed by the claimant, with assistance from counsel if represented, and verified by the treating medical provider. A portion of the SLU-1 form shall be completed by the medical provider as part of the evaluation of permanent impairment, with respect to restrictions. 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.

d) Criteria for performing a permanent impairment evaluation.

1. Review the Workers’ Compensation Guidelines for Determining Impairment.

2. Review the medical records.

3. Perform a thorough history and physical examination and recount the relevant medical history, examination findings and appropriate test results.

4. State the work related medical diagnosis(es) based upon the relevant medical history, examination and test results.

5. Identify the affected body part or system.

6. Prepare and attest to a medical opinion on impairment, which should consist of the following elements:

i. Whether claimant is at Maximum Medical Improvement.

ii. Whether the claimant’s injury is permanent, and amenable to schedule (see 1.3, above).

iii. Identification of the injury(ies) in terms of severity.

iv. For each injury, once the applicable severity of the category of injury is selected, the medical evaluator measures the anatomical or functional losses 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).

v. State the work restrictions, if any, and explain in detail how these restrictions will, or are expected to, impact the claimant’s ability to function in the workplace.

7. 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.

8. 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:

i. When there is no loss of range of motion or strength, pain percentage points may not be added to the lowest percentage impairment identified in the Categorization of Injuries table for each member body part.

ii. 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.

9. A medical provider may evaluate a permanent impairment of multiple digits as a permanent impairment of the hand or foot as set forth in the Workers’ Compensation Guidelines for Determining Impairment subject the applicability of subdivision (3)(q) of section 15 of the Workers’ Compensation Law.

e) 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.

f) Obtaining the Workers’ Compensation Guidelines for Determining Impairment. The Workers’ Compensation Guidelines for Determining Impairment incorporated by reference herein may be examined at the office of the Department of State, 99 Washington Avenue, Albany, New York, 12231, the Legislative Library, the libraries of the New York State Supreme Court, and the district offices of the Board. Copies may be downloaded from the Board's website or obtained from the Board by submitting a request in writing, with the appropriate fee, identifying the specific guideline requested and the choice of format to Publications, New York State Workers' Compensation Board, 328 State Street, Schenectady, New York 12305-2318. Information about the Workers’ Compensation Guidelines for Determining Impairment can be requested by email at [email protected], or by telephone at 1-800-781-2362. The Workers’ Compensation Guidelines for Determining Impairment are available on paper or compact disc. A fee of ten dollars will be charged for the guideline requested in paper format, and a fee of five dollars will be charged for a compact disc. Payment of the fee shall be made by check or money order payable to "Chair WCB."

1. Statutory authority: The Workers’ Compensation Board (hereinafter referred to as Board) is authorized to amend 12 NYCRR 300.2, and to add 12 NYCRR 300.39 and 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 by September 1, 2017, 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. Sections 300.2, 300.39, and 325-1.6 provide additional rules for the conduct of medical examinations performed for the purpose of evaluating permanent impairment and the determination of schedule loss of use awards.

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 provide additional directions concerning Doctor’s Report of MMI/Permanent Impairment, but do not significantly increase the amount of 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, medical evidence in an evaluation of permanent impairment must be completed in the format prescribed by the Chair, using the Workers’ Compensation Guidelines for Determining Impairment. A claimant must complete an intake form.

3. Professional services:

The Board believes that no professional services will be needed to comply with this rule. This new rule simply offers more guidelines on making schedule loss of use determinations. Those who have conducted independent medical examinations in the past may continue, but these guidelines will apply.

4. Compliance costs:

This proposal does not involve any new compliance costs. It offers a new and improved system 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 a new set of guidelines to follow in making schedule loss of use determinations. The new rules establish a system and guidelines for making those determinations in response to a legislative mandate.

7. Small business and local government participation:

The Board has not yet had an opportunity to consult with small businesses or local governments during the rule-drafting process. However, 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 regulations provide a new and improved system for impairment guidelines, but apply to all claimants.

2. Reporting, recordkeeping and other compliance requirements:

Under this rule, the evaluations of permanent impairment for use in schedule loss of use determinations must be made in the format prescribed by the Chair. Additionally, a claimant must complete an intake form. There are no specific reporting or compliance requirements affecting rural areas.

3. Costs:

This proposal will not impose any compliance costs on rural areas. The role solely implements a new system for schedule loss of use determinations.

4. Minimizing adverse impact:

This proposed rule is in response to a legislative mandate, and establishes a new and better system for schedule loss of use determinations through the impairment guidelines. This rule establishes clear guidelines for making schedule loss of use determinations and guidelines for conducting impairment evaluations in arriving at these 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

Any claimant seeking a schedule loss of use determination will be affected by these proposed regulations, but 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 and provide other guidelines for making schedule loss of use determinations. There is not expected to be any impact on jobs with these guidelines.