- Welcome everybody, this is the webinar for SLU guideline changes in New York. My name is Jason Sison, I'm a partner here at Lois Law Firm. It's so nice, we're doing it twice. So, we thank maybe the one or two people who joined the 12:00 PM session is now coming for the second version. That's me, email address, phone number, and picture. I can't tell actually whether I look better with glasses or without, so if you don't have a question at the end of the webinar then you can leave a comment about that. Today, what we're gonna talk about are the new guidelines for determining permanent impairment as it relates to schedule loss of use in New York. We're gonna talk about whether they apply prospectively or retroactively or both. How will they change our practice in terms of helping carriers, employers, self-insureds, in defending worker's compensation claims in New York. Whether they're good or bad for us and we'll end with a small Q and A session at the end. And as anybody knows, we do have this little question box you should see on your screen. You can send in a question live, I'll take a couple at the end. I'm probably not going to get to all of them and I know that because I was inundated with so many questions at the first session and I will be reaching out to those people as well. So, if your question is not answered by me at the end please, please don't worry. I will get back to you. So, let's start with our approach. What we're gonna do today is describe the guidelines and provide an overview into what they mean, what they look like, and how they compare to the past iteration, right? And how that goes into effect is really in relation to practical tips and what we're going to do to implement them, to use them, to apply them, and how to better serve you and create exposures that are as low as possible. And finally, maybe most importantly, I'm gonna talk about where we will need to obtain decisions from a judge, the board panel, or even the appellate division in order to make sure we have a good understanding about the full impact of these new guidelines. Again, 2018. So, I thought it would be best if we start out with a hypothetical, right? This is gonna be based on the 2012 guidelines which are now not in effect. I do have a copy that was sent to you guys earlier this morning. It has the hypothetical outlined for you there if you wanna follow along on that end, but they're also on the slide as well. So what we have here is a case with a left knee and meniscul tear. That was meniscul tear was surgically operated on and we have an average weekly wage of $1500. The date of accident is January 1st, 2017 which would result in a statutory maximum rate of $864.32. That's gonna be used for the purposes of this hypothetical as well. And we also have a flexion reduction in range of motion to 110 degrees. Finally, 24 weeks of total disability, so 864.32 per week. Were paid as prior benefits and obviously everybody knows that's important to talk about fresh money moving to the claimant at the end. So, how do they look in the old guidelines? Well, special consideration for surgically operated meniscul tear is 7.5 to 10% as a baseline floor. And that's the special consideration for that diagnosis and operation. So, without doing anything, without assessing range of motion loss, you are gonna be looking at that minimum. Now, in our hypothetical we also talked about 20% which is based on the 110 degrees of flexion loss. And what happens is we just add the two together to come to 30%. And I chose 10 instead of 7.5%, because we all know that a claimant's doctor is not gonna short him or her by picking 7.5 instead of 10. 30% schedule of a leg is 30% of 288 weeks, which comes out to 86.4. Now, the total indemnity, the gross value, of that award would be a little under $75,000. And if we take credit for the payments made that will result in net money moving of $53,934 and change. So I want you to remember that number when we get to the end example which is gonna discuss how the same case applies with the 2018 guidelines. Now, these are the new guidelines. It's 64 pages. It did come out as you can see in November 22nd, 2017. We did provide a link to access these on the board website, but of course if you have any trouble accessing them we'll provide you that information directly. November 22nd, this iteration came out after the more employer friendly iteration came out in September of last year and was a response to essentially the comments and protests from both sides, but most the claimant's side as to the issues and problems with the September draft. So this was a little bit of light reading during my Thanksgiving holiday and I've really made sure that I know as much as I can about it to help all of you here today. Okay, so what we wanna start off with is how we even get to a schedule loss of use. By law, in a case that does not involve a surgery or a fracture, a claimant cannot reach maximum medical improvement until six months after the date of accident. So, what do we use this for? Essentially, if you get that C4.3, finding MMI before that six month timeline then your attorney should be requesting preclusion of that report. You can always agree that MMI has been reached but if one side is arguing for it and another side is not, if it's before that six month timeline that report should be precluded. It's also a good thing to know when you're schedule the IME for MMI. You don't wanna waste resources on that particular topic or essentially the exam, if you know that you haven't reached that six month timeline. Unless you're doing it for a medical or a temporary disability issue. Medical impairment findings is a point I put in there just to make it clear that obviously a judge is not gonna find MMI on his own. He needs be able to rely on at least one medical report from either side. Okay so, in the September iteration of the guidelines, The ones that were supposed to come about because of the bill in April of last year, had a bunch of regulations the board was going to adopt once January 1st, 2018 had passed. And a lot of them were beneficial to employers, there was that provision that the claimant had to fill out an SLU 1, which is a special intake form for schedule loss of use that would allow us to determine are you doing your pre-accident job at full duty with no restrictions? Are you making the same amount of money? Can you do everything that you could have done prior to the accident? We don't actually know what was going to be on that form but just the fact that it was going to be in effect possibly would've helped us going forward. That is gone, so really the only regulation that's going to be adopted in addition to these 2018 guidelines is the fact that the board must now use these 2018 guidelines. So that's really just to underscore the change from the September draft to the November draft. The second bullet point I have here for you on this slide it's just basically saying that once January 1st, 2018 hits we're not going to be applying those 2012 guidelines. But there is a caveat and I'm gonna get to that. Like I said, the new guidelines are gonna apply to current cases and it might change how you actually get to the final opinion but it's not gonna change how you calculate the number of weeks. So, which guideline applies? Well, if the first SLU evaluation occurs today, for example, or next week. Anytime after January 1st, 2018, then that provider should be applying the 2018 guidelines. But, if there was one SLU exam that took place prior to January 1st, 2018 then the board is gonna allow credibility to be established if the provider used the 2012 guidelines. And I think that's a very important distinction, because it gives an attorney like me or an examiner or an adjuster, any risk managers that's assessing the case. Can they determine, can we determine, if the 2012 or 2018 guidelines are gonna be better for our particular case? And a lot of the questions like that in the first webinar talked about whether it's just gonna be better across the board. It's hard to really assess that. We'll get into that as we go forward, but it does give us an option here to talk about whether this guideline will better for us now or if we should use the old guidelines and take advantage of a board bulletin number that says that we can use it based on the fact that a first exam happened before January 1st. Okay, clear distinction between SLU and LWEC, or loss of wages, that part of the guidelines is not gonna change. We still have those crazy, crazy severity rankings that talk about A through Z or in some cases A through a letter before Z, that talk about what the severity of the medical impairment is that's permanent. Those have not changed, they're still the same. This is another example, it's a supplemental table that talks about the plate value system in radiculopathy, alright? There's gonna be certain numerical points that are added in order to get to that severity ranking and letter. Those are not changing and if you have an LWEC case the 2012 will still apply. So, what did change? Well, it's just the schedule loss of use as we have been talking about. It's essentially loss of range of motion plus special considerations. And, we're not entirely happy with this compared to the first iteration in September because loss of range of motion was not as much of an impact in the first iteration. It talked about strength. It talked about pain. It talked about different things that correspond to the eventual finding of permanent impairment if any. But keeping loss of range of motion in place at the same or similar effect that it had with the 2012 guidelines puts us in a predicament because we all know that claimants can affect range of motion in a certain way. Active or passive range of motion, they certainly are going to say that something hurts when it gets to a certain level and whether or not that is true, definitely affects us, right? Because even if an IME finds symptom magnification it's still something we have to fight. But what we're not gonna do is cry over spilled milk, I'm gonna find the best towel to wipe up the mess. So, just before we get there we're gonna talk about SLUs and the calculation. As I said before, the schedule number of weeks per body part is not changed. 288 for a leg, 312 for an arm, so on and so forth. But how you get to that actual number is gonna change, a little bit. Some of them remain the same but there are some changes we'll go over. Again, just to show you that the old chart still applies if you do have a paper copy of the guidelines or even electronic copy in front of you, if you flip to the very last page it's Appendix A, page 64, and it has the same exact chart that's on the 2012 guidelines and in the statute. So how does a doctor find schedule loss of use? We all know that there are a multitude of factors that come get us at this point. We talk about medical treatment. We talk about improvement. We talk about how much lost time there is. We talk about the severity of the mechanism of the accident. So it's not linear as I have kind of ironed out here, but I feel like in order to best understand it you can actually go through it in a linear model to see how the doctor's progressing step A to step Z. So the first section are the objectives. You wanna describe the extremity and figure out how it's being used in relation to permanent impairment. The second part is methods. What types of tests are you doing to assess range of motion and whether it affects other body parts or in comparison to a body part. The third section is the range of motion. It talks about what you should be testing, how many times you should be testing it, and if you're doing it objectively or subjectively. Calculating loss of use, it just provides you that formula that we've been talking about that we know near and dear to our heart. We then get to special considerations. And the fifth section is special considerations just based on what the board has outlined. I'm gonna go over exactly why I like to go to special considerations first, because it allows you to just make it more clean in terms of the numbers. It tells you what your ceiling is and then gives you the add-ons. And finally, the sixth section of most if not all the extremities are amputation, right? Some extremities are gonna be given a very, very high floor of schedule loss of use if that limb or extremity is amputated. So very quickly, to run through the six methods or six sections that we just talked about. Objectives is essentially keeping in place what the body part is, making sure that the provider's aware of what the claim is including and what the claim is not including. And this section's probably gonna talk about some of the movements that are required for a claimant to have deemed maximum medical improvement, to have reached maximum medical improvement, or to determine pre-accident versus post-accident status. Methods, this actually will help the provider. If they're reading carefully they are going to caution the provider to make sure that they are finding MMI at the legally applicable date. So, certain injuries might have a longer MMI date. I know we talked about the six month timeline, but that involved no surgeries and no fractures. So, it does help the provider if they're reading the guidelines carefully to talk about whether MMI has been reached or not. And finally, it contains an instruction that the impairment is not based on the severity of the mechanism of injury. And I think that's really important to discuss because we know that a pinky finger strain is a lot different than breaking your leg because you fell off a scaffold. So, when we say that it's not based on the severity of the mechanism of injury, it's not something that we wanna forget about. I know that IMEs will certainly take a history of the accident because they've been trained to do so, but we wanna make sure that the mechanism of the injury is being repeated. That has to be made aware because honestly we can't avoid that implication. We wanna make sure that the schedule loss of use opinion really, really correlates with the severity of injury. I say all the time that the purpose of worker's compensation is to accept the cases that are legitimate and deny the ones that aren't. So for the acceptable ones we wanna make sure that that is in place to make sure that the findings really make sense. Okay, range of motion. We talked about how it's maybe providing the normal range of motion versus the contralateral limb. Think of how you wanna compare the right leg, if that's the part in the case, to the left leg to make sure that we have a valid basis for a normal or full range of motion. So what the board has repeated in this iteration is essentially to put diagrams in the sections itself. It actually helps all of us to understand what a 20 degree loss of dorsiflexion of the wrist is, which the chart here shows. The interesting thing that I found with this iteration of the guidelines is the recommendation of three repeat measurements with a goniometer. In all the years that I've been doing this and you will certainly agree with me, this isn't something that is repeated by doctors on either side. So, if you're going for a 2018 guidelines application you wanna make sure that your IME doctor is taking three measurements with a goniometer and comparing them. This takes away the idea that it was one good test or it was one bad test. There are three to really compare with each other and determine what's the real loss of use. It's also helpful because if the other side doesn't do that, we can use that as a basis for requesting preclusion. So, in a case where you have decided not to settle and you do wanna go to litigation for that you wanna make sure that your attorney is barking up this tree because it's an important recommendation in the guidelines. Range of motion being cumulative. This is a little bit different than the past iteration of the guidelines only because the 2012 guidelines didn't really talk about the specific instances when you can add range of motion losses together. So for example, if we go back to this dorsiflexion and palmar flexion if I have the same accident and the same injuries affect my ability to go like this or like that, I always make the argument that I'm unless the 2012 guidelines specifically articulated that both of those values are cumulative and in this case could be added together, then we should only really take the higher degree of one of them and that would decrease your exposure. In the 2018 version of the guidelines they're a little bit more explicit about this and I think that's very helpful for doctors and practitioners alike. For example, in section 3.4 of the 2018 guideline which is the wrist, it says that you can add certain values together but if the claimant has a marked loss of motion that total cannot exceed 55%. So, we have a little bit more guidance on it. It does make everybody's job a little bit easier because it creates predictability. Section four is about calculating the loss of use. I talked about special considerations being first there and this is essentially why. This table is an example of how you can calculate range of motion losses and attribute them to certain percentages of the loss of use. But if you do it that way and then go to special considerations you're going back to those same medical reports to try to make sure the diagnosis makes sense. So I think it's actually better to go to section five first, look at those special considerations, and find out what your floor is. Your floor is the baseline minimum of schedule loss of use that that extremity will have. And then once you find that, you can then go to range of motion and do the add-ons. I think that's a lot easier way to do it. Of course, if you're more comfortable going with range of motion and then special considerations, knock yourself out. Okay so, how do these 2018 guidelines help employers, carriers, self-insureds? And this was what had essentially drove me to read this thing up and down twice, three times, four times and will continue to make me stress over it. In the old guidelines there were some things that really, really hurt employers and when I speak to clients they tell me for the most part that their worst cases are the schedule loss of use cases from claimants that don't miss any time from work. All the threshold they would have to pass is allege that a work accident occurred, I hurt my shoulder, and get their MRI finding a rotator cuff tear. And they don't even have to go through surgery, but you're gonna hit that baseline 10% which I have in the fourth item on that table. 2012 guidelines, if you have a rotator cuff tear that's causally related and established if you don't get surgery the minimum SLU you're looking at is 10%. And 10% of a 312 week arm, 31.2 weeks. And imagine paying that out when the claimant has not lost any time from work. It's terrible. The good thing is, the new guidelines don't have that for that particular injury. They also talk about the meniscus incision, which is actually the surgery we talked about in the hypothetical in the early slide. They're taking away that floor and I think it's helpful for us, because a meniscus tear, a rotator cuff tear, they may be our more common place injuries. If you're going to have trauma to that site then there's a chance that objective testing will show some kind of issue that is a result of that trauma. But we want to avoid cases that don't actually affect the claimant's ability to do work. So, it is a nice change to see that the new guidelines don't have that automatic floor. I do have a couple more there that I won't go over due to time, but surely if you do have questions on those specific injures I'll be glad to reach out to you via email or in the questions if we do have time. Okay, the SLU award is what it's going to be once the doctors and the litigation has taken place. But that doesn't mean that all of our avenues will be exhausted. It's still the same in terms of what we can do when the award is made by the judge. You can determine if we want to appeal to the board panel or even to appellate division. We can stipulate to a schedule loss of use and close the case that way. You can also, full and final, do a section 32 settlement in which you would close medical as well which is preferable. And there is always that problem of section 15v. We have this even with the 2012 guidelines where if you get that 50% threshold of the schedule loss of use you might be looking at a case where the claimant is gonna pursue classification. And this is a really, really important point to consider when dealing with that. Non-schedule awards. Although we know that the new guidelines only have to deal with schedule loss of use, the 2018 iteration of the guidelines do talk about when a schedule injury can become non-schedule. And these are more specific as opposed to what we used to have in the 2012 guidelines where we would actually litigate this and it would be more of a discussion and debate as to whether a schedule would be non-schedule. Here there are more opportunities now for a claimant to request a non-schedule award. And there a variety of them, it's a whole list, they're in chapter one, but I pointed this one out because I thought it was very... Well actually, it was the first one and it will actually probably lead to some litigation. Joint inflammation, acute or chronic, x-ray evidence of degenerative arthritis, and a finding that no improvement has been made after all modalities of care have been exhausted. Think about your cases, maybe even in your case population now, where you have prior indemnity reaching a point that is so high that a likely schedule is going to be eclipsed by the prior payments and not move anything to the claim. If I'm a claimant's attorney that is looking to extend that case I'm probably going to try and argue this point just because if these are apparent it's now applicable to go from schedule to non-schedule. It doesn't mean we can't fight whether these exist. Sometimes there may be degenerative arthritis but we would have to argue that it's not causally related, for example. If a claimant's doctor said that there's no improvement we would have to show that there is improvement. Similar things like that, but it's more to just let you know that it could be part of a fight down the road. Okay, we had the hypothetical in the first couple slides of this presentation this is the same exact thing and we're gonna use the 2018 guidelines to see how much that has changed. Let me remind you it's only an isolated case, so we can't assume that the outcome of this particular accident on this particular case would be similar across the board or corelative to other non-similar injuries. And again, we do have this handout that we sent in an email earlier today that you can also follow along. But it's basically the same thing, left knee meniscal tear that was arthroscopically repaired. I've been talking for a while so I had to sound that one out. $1,500 average weekly wage, January 1st, 2017 accident with a 100 degree flexion loss and 24 weeks at $864.32 paid previously in prior indemnity. Okay, so we know from the past slide that an excision for the meniscal tear is not gonna give you that baseline floor of 7.5 to 10%. Now, if we calculate just the range of motion loss we're only gonna get 10% for that meniscal tear. Not for the meniscal tear, I'm sorry, it's the 10% for the range of motion lost. So 10% for a leg is 28.8 weeks. Remember that the total schedule loss of use for the leg is 288. If we take the same prior indemnity and subtract it from the gross money in this case which is as shade under 25,000, we come out with new money moving at $4,148 and some change. So if we compare that to the previous example, it's a very, very large difference. So, I hope that has articulated what we have in terms of 2012 versus 2018. And I'm now gonna take some questions. Okay. Okay, the first question is from Mark and Mark asks, "Will schedule loss of use "automatically be transferred to loss of wage "or incapacity if they meet those criteria?" I guess I wanna be a little bit more clear, so I thank you for that question, Mark. The possibility of going from SLU to LWEC it's not just an easy thing to do. Those iterations of x-ray evidence of degenerative arthritis, acute or chronic inflammation, and no improvement after all modalities of care have been exhausted, we don't wanna assume that that's very easy. We just wanna know that they're possible. When we prepare for that obstacle we know that we are best equipped to fight it. More claimants attorneys might actually think that I can close a case quickly on schedule loss of use as opposed to LWEC because in LWEC you're gonna keep a claim open and really fight. Those cases are actually more likely to be appealed by our side because there's a lot of factors that go into play before determining that final number. So, I appreciate that question, Mark. The next question is from Cindy and she asks about the change in total knee replacement. That's actually a question I got the first webinar, so let me go back to that slide. In the old guidelines at the bottom of what I have here is that the average total knee replacement case would end up with a 55% schedule and that's actually in the 2012 guidelines. The special considerations in that section if you want to access that. And actually, before I even get into that, the 2012 guidelines are still available for review. So if you wanna do your own comparisons that's certainly at your disposal. But essentially gave a high floor for a total knee replacement, and that's even if the claimant went back to work. What we have in the new guidelines is a more specific delineation of the outcome of the surgery which actually makes more common sense. If the surgery helped the claimant, we're not gonna be compensating them for such a high schedule loss of use. If there was a good outcome which I would like to argue if they're doing the same pre-accident job, same duties no restrictions, then you're going to be looking at a range closer to the 35% number. Now, if they're out of work and they're really, really struggling with it then you're going to be looking at a higher number. So that's gonna be a little bit more of change. It does incorporate range of motion loss into those categories, so I think it's actually helpful as opposed to just saying well the average TKR is about 50 to 55%. I think that actually pushes doctors to find a percentage in that range without actually doing the work to get there. Okay, go back to the questions. Alright, so Jim asks, "If the claimant has a meniscal tear "without the surgery, what happens?" Okay, so that's actually a good question. My hypothetical, the claimant had a meniscal tear that required the surgery. And what's good, is that even the old guidelines made sure that they had the surgery to give them that floor. So if they don't have the surgery you're probably gonna be looking more like the second example where the range of motion loss is the only thing that's considered. But you also wanna contrast that with the rotator cuff tear because with or without surgery was a difference in the 2012 guidelines. So without the surgery you'd get that baseline floor, it didn't matter if you went through the surgery. And in the 2018 guidelines there's nothing about the rotator cuff tear because what they're assessing is the range of motion loss. Especially since we're already compensating the claimant on the temporary disability side for the lost time from work and the cost of the procedure itself. Makes sense. Okay, questions are piling up. It looks like I have about 10 more. I can't get them right now because we're already past that 30 minute limit. I will respond to everybody by email, that's a promise. You can follow up with me if need be, but I'm gonna make sure that I get back to you. But for now, I wanna thank everybody for attending this webinar. It is a special addition to our monthly webinar series and I'm very happy that it's one of the more highly attended ones. If you have any questions, my email address and phone number was given to you in the slides and it should be available to you in that email that we sent earlier this morning as well. And thanks again.