The New York State Workers Compensation Board issued updated Workers Compensation Guidelines for Determining Impairment on November 22, 2017. The Board also issued Schedule Loss of Use Frequently Asked Questions on 10/04/18 which can be found on the NYS Workers Compensation Board Website.

The 2018 Impairment Guidelines are to be used regardless of the date of injury. If the schedule loss of use examination was done prior to 01/01/18 the 2012 Impairment Guidelines should be used. For Permanency evaluations done after 01/01/18 the 2018 Impairment Guidelines must be used. Even if the claimant was awarded a SLU for the same body part using the 2012 Impairment Guidelines, when a new SLU evaluation is done after 01/01/18 on that same site the doctor must use the2018 Guidelines. If the doctor uses the 2012 guidelines for a permanency exam after 01/01/18, if not challenged, they will be considered. However, the report may be afforded little or no evidentiary value.

The doctor is to provide the schedule loss of use opinion only for the work-related injury. If the claimant’s range of motion is limited by a nonoccupational condition such as obesity the doctor should offer an opinion as to the functional loss and resulting SLU that is causally related to the work injury and not other factors. Where a claimant has preexisting osteoarthritis, which is exacerbated by a work injury, the measurement of the contralateral extremity should be used as a baseline whenever possible. Reductions in range of motion for the non-injured contralateral extremity are deducted from the loss of range of motion for the injured extremity. The attending doctor should report the range of motion measurement findings on the contralateral side at the time of the first examination and report those measurements on the C-4 form.

Per the 2018 Impairment Guidelines the doctor must list range of motion finding for the injured site and range of motion findings for the contralateral side.  The doctor is required to take three measurements for each range of motion and the doctor is to use the highest measurement when calculating the SLU. The three measurements are to include the injured site and the contralateral side. The WCB will not bar reports that do not contain the range of motion findings consistent with the guidelines. However, if the doctor does not provide the correct documentation per the Impairment Guidelines to support his opinion. They will be given little or no evidentiary value.

The doctor is required to document the range of motion findings on the contralateral side however if there was prior injury to the contralateral side which affects the range of motion the doctor should use the normal range of motion as indicated in the guidelines as a baseline. If the range of motion on the injured part is limited by other factors such as obesity the doctor should evaluate using his or her judgement and offer an opinion on functional loss and resulting SLU that are causally related to the work injury.

The doctors are required to use goniometers when taking range of motion measurements (2018 Impairment Guidelines Section 1.3, p.7). The active range of motion must be used not passive.

Under the 2018 Impairment Guidelines SLU’s are based on permanent impairments involving anatomical or function loss, not on the mechanism of injury, absent a Special Consideration in the guidelines.

Regarding the shoulder if a deficit of both flexion (forward elevation) and abduction are documented, the greater of the two deficits must be utilized, not both. However, if both range of motions are moderate or higher, and the measures are within 10 degrees of each other up to10% may be added to the overall schedule loss of use not to exceed ankylosis. The guidelines allow for an added 10 to 15% for marked defects of rotation and muscle atrophy. In order to add the 10-15% there must be defects in both rotation and muscle atrophy. Internal and external rotation benefits are only considered when no other ROM exists.

If the claimant complains of severe pain on the first ROM measurement the examiner should use his or her medical judgement and if reasonable ask the claimant to repeat the maneuver that is acceptable and document the evaluation limitations in detail. The examiner should not push the patient beyond tolerable limits.

If the patient was previously awarded a SLU based on the earlier guidelines and subsequently sufferers a new injury, the examining physician should evaluate based on the 2018 guidelines to determine the SLU that resulted from the relevant work-related injury as opposed to other causes. To obtain an increase over the SLU previously awarded and based on the earlier guidelines there must be objective medical evidence that the claimant’s anatomical or functional loss (e.g. ROM) has increased since the prior SLU and the evaluation under the 2018 Guidelines results in a higher SLU than the one previously awarded. No increased SLU should be awarded if claimant’s anatomical or functional loss is substantially the same as it was at the time of the prior SLU, even if an assessment pursuant to the 2018 guidelines would result in a higher SLU percentage.

If the claimant has surgery and achieves full range of motion and strength and there is no SLU unless a specific special consideration applies. If the claimant has an injury for an extremity not covered by the guidelines which results in loss of range of motion to an adjacent joint the Guidelines for the affected joint should be consulted. Multiple range of motion deficits when added together should not exceed the total SLU for the affected body site and should be reduced to the total SLU of the body part.

With respect to apportionment the examining physician should offer an opinion of the SLU that resulted from the relevant work-related injury, as opposed to other causes. This can be done by using the contralateral side as a baseline and by reviewing reports concerning prior injuries to the same site.

If both schedule and non-schedule body parts are involved the IME doctor can give both a SLU opinion and a non-schedule opinion in the same report. The doctor should fill out both the IME-4 A and B forms. If the claimant is non-compliant with ROM testing the examiner should note this belief in there port and may decline to offer a SLU opinion if claimant’s failure to cooperate makes doing so impossible. The Board has previously found that when a claimant is uncooperative or clearly not giving a full effort during the IME evaluation that this is tantamount to refusing to appear for an IME and as a result no schedule loss of use could be made until the claimant fully cooperates with an IME, Montefiore Medical Center, G1027185 (September 19, 2016).

It is not acceptable for a nurse practitioner and presumably a physician’s assistant to file out the permanency form C4.3 even if countersigned by the doctor. The permanency evaluation must be conducted by the physician.

The claimant’s attending physician is required to use a form C4.3 for a SLU opinion. The provider who has treated the injury is expected to conduct the SLU exam. A treating physician can submit a narrative rather than a C4.3 as long as it contains all of the information requested in the form. If the claimant obtains an IME to comment on SLU, the doctor must use form IME-4 (the report is subject to the provisions of Section 137). For an IME the evaluator must fill out the IME-4 cover sheet along with the appropriate listed attachments for either schedule loss of use and/or non-schedule permanent partial disability. All three elements (form IME-4 with attachments and narrative) are required for a complete IME report.

The Workers Compensation Board has also promulgated new forms for permanency evaluations (See Subject No. 046-1067A 05/16/18). The form C4.3 has been revised to include attachments A and B. Attachment A requires the examiner to provide three range of motion measurement, contralateral range of motion, if the contralateral is applicable and if not, the examiner needs to explain why, special considerations and impairment percentages for all affected body sites.

Attachment B of the new form C4.3 is used for all body parts for which a non-schedule award (classification) is appropriate. The examiner should use both attachment A and B when evaluating a patient with injuries that involve both schedule and non-schedule body parts and/or conditions.

The form IME-4 has been modified to capture information on the duration of the exam and medical documentation review. Per the SLU FAQS failure to note the start and end time at present will not result in the report being barred.

The IME-5 has been changed to capture the IME entity that is scheduling the exam.

The Board Issued an Announcement regarding implementation of the new forms on05/22/18

<strong>Implementation of Forms Associated with SLU Evaluations</strong>

Date: May 22, 2018

The Board has received a number of inquiries associated with <a href="https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/SubjectNos/sn046_1067.jsp" target="_blank" rel="noopener">Subject Number 046-1067</a>, specifically related to the timing of the implementation of forms associated with Schedule Loss of Use evaluations.

We understand that the new forms may take sometime to implement due to programming requirements. However, the guidelines are not new, and the associated requirements were released and effective 1/1/18. Until such time that users can get the new forms programmed into their systems, all required elements should be captured on the existing forms and/or included in the submitted narrative.

As you are aware, new paper forms are available for use now and have been posted on the Board’s website. The revised electronic C4.3 should be available by mid-July. We ask that all users totally transition to and utilize the new forms by mid-July. Until that time no forms will be precluded as long as all the required elements are either included on the forms and/or incorporated into the narrative.

Review of the Boards announcement does not give a solid cutoff date but does indicate that all users transition to and utilize the new forms by mid-July. It has now been over six months since the new forms were issued by the WCB and at this point I think it is safe to say that you can make the argument that a permanency evaluation may be precluded if the provider (IME or attending physician) used the old permanency forms.

The carrier should carefully evaluate the ROM findings and determine whether the provider has included all measurement as required under the 2018 Impairment Guidelines and whether the provider properly calculated the SLU opinion based on the 2018 Impairment Guidelines. If the Board issues an EC-81.7 or you receive a doctor’s report which does not properly use the 2018 guidelines you can object to the need to obtain an IME or schedule depositions.

The carrier should investigate whether the claimant had prior injuries or conditions that may affect in range of motion. Review the post-employment physical or records from the primary care physician.  The carrier should investigate whether the claimant had any prior work-related or non-work-related injuries/conditions and or SLU’s to the injured extremity. This information should be provided to your IME.

There is more information in the Workers Compensation Boards Frequently Asked Questions and you should review those as the FAQS as they are quite helpful. This is only a brief outline of the information contained therein.