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Text of Proposed Amendment to 300.2 and Addition of 300.39 (Schedule Loss of Use determinations) and 325-1.26 (Impairment Guidelines) of Title 12 of the New York Codes Rules and Regulations


Paragraph (4) of subdivision (b) of Section 300.2 of Title 12 of NYCRR is amended as follows:

(b) Independent medical examiners; definitions. For purposes of this Part, the following terms

    1. Independent medical examination means an examination performed by an authorized or qualified independent medical examiner, pursuant to section 13-a, 13-k, 13-l, 13-m or 137 of the Workers' Compensation Law, for purposes of evaluating or providing an opinion with respect to schedule loss, degree of disability, validation of treatment plan or diagnosis, causal relationship, diagnosis or treatment of disability, maximum medical improvement, ability to return to work, permanency, appropriateness of treatment, necessity of treatment, proper treatment, extent of disability, second opinion or any other purpose recognized or requested by the board. An examination that is conducted for any of the purposes described in this section, other than an examination conducted at a clinic that is a member of the occupational health clinics network established pursuant to subdivision (3) of section 151 of the Workers' Compensation Law, shall be deemed an independent medical examination and shall be subject to the requirements governing the conduct and reports of such examinations as set forth under sections 13-a, 13-b, 13-d, 13-k, 13-l, 13-m, 13-n and 137 of the Workers' Compensation Law and this Part. An examination conducted at the request of the chair or the Board in accordance with section 13(e) or 19 of the Workers' Compensation Law shall not constitute an independent medical examination for purposes of this Part, or for purposes of sections 13-b, 13-k, 13-l, 13-m and 137 of the Workers' Compensation Law.
    2. A claimant or claimant's representative may not request an independent medical examination except when directed by the Board upon demonstration that the treating provider is unwilling or unable to provide the evaluation and opinion. Upon such direction by the Board, the carrier shall be liable for all reasonable fees and costs associated with such examination.

Paragraph (2) of subdivision (d) of section 300.2 of Title 12 NYCRR is amended as follows:

(2) [Examination requested by claimant. A party requesting an independent medical examination from a provider, other than the attending provider, in accordance with subdivision 4(B) of section 13-a, subdivision 3(B) of section 13-k, subdivision 3(B) of section 13-l, or subdivision 4(B) of section 13-m of the Workers' Compensation Law, for a purpose described under paragraph (b)(4) of this section, shall be liable for all reasonable fees and costs associated with such examination. However, where a claimant can demonstrate to the satisfaction of the board that he or she made a good faith effort to obtain an opinion from his or her attending provider prior to seeking an independent medical examination for any of the purposes described under paragraph (b)(4) of this section, and that the attending provider was unable by reason of death or absence from the State, or unreasonably failed or refused to provide such opinion, the carrier shall be liable for all reasonable fees and costs associated with such examination. Where a claimant seeks an independent medical examination in accordance with subdivision 4(B) of section 13-a, subdivision 3(B) of section 13-k, subdivision 3(B) of section 13-l, or subdivision 4(B) of section 13-m of the Workers' Compensation Law, for a purpose described under paragraph (b)(4) of this section, the independent medical examiner shall inform the claimant in writing on the form prescribed by the chair for notice of such examination that the claimant may be responsible for payment of the cost of such examination, and shall state the actual fee or fee range for such examination.] Permanent Impairment Evaluations for Schedule Loss of Use Determinations. All independent medical examinations performed for the purpose of evaluating permanent impairment in order to make a schedule loss of use determination in accordance with section 15 (3)(a-v) of the Workers' Compensation Law, must be performed consistent with the requirements set forth in the Workers' Compensation Guidelines for Determining Impairment as set forth in section 325-1.6 of Subchapter C of this Title. Reports of such impairment evaluations shall be made on the form prescribed by the Chair for such purpose. Such independent medical examinations shall be conducted and reported in accordance with sections 13-a (4) and 137 of the Workers' Compensation Law and with this section.

Subparagraph (iii) of paragraph (4) of subdivision (d) of section 300.2 of Title 12 NYCRR is amended to read as follows:

  1. Reports.
    1. The independent medical examiner shall provide copies of the report of an independent medical examination as required under Workers' Compensation Law Section 137 (1)(a) together with any questionnaires or intake sheets completed by the claimant at the request of the independent medical examiner by filing such report and questionnaire with the form prescribed by the Chair for such purpose with the Board and providing copies of such form to the insurance carrier, the claimant's attending physician(s) or other primary attending practitioner(s), the claimant's attorney or licensed representative, and the claimant. Only the form specifically prescribed by the Chair for the reports of independent medical examinations shall be filed. The form prescribed by the Chair pursuant to paragraph (5) of this subdivision to submit a request for information or a response to such a request shall not be used for the reports of independent medical examinations. When a claimant treats with more than one attending physician or practitioner, the independent medical examiner shall provide a copy of the report of the independent medical examination to any attending physician or practitioner who has treated the claimant in the [past] (6) six months prior to date of the notice for the independent medical examination required by paragraph (1) of this subdivision for the condition that is the subject of the independent medical examination. If no provider has treated the claimant in the last [6] six months, the report should be sent to the provider who last treated the claimant. A provider who has examined the claimant solely for the purpose of consultation or diagnostic examination or test is not an attending physician or other attending practitioner within the meaning of this section and section 137 of the Workers' Compensation Law. All such reports shall be sent on the same day and in the same manner as required by Workers' Compensation Law section 137 (1)(a).

Paragraph (7) of subdivision (d) of Title 12 NYCRR is amended to read as follows:

Conduct at examination. The claimant must cooperate with the independent medical examiner at all times during the independent medical examination. The claimant must accurately and truthfully complete any questionnaire or intake sheets provided by the independent medical examiner and answer any questions asked by the independent medical examiner during the examination. The claimant or the examiner may videotape or otherwise record the examination. An independent medical examiner may not refuse to conduct an independent medical examination because the claimant intends to videotape or otherwise record such examination when the claimant has appeared for such examination as scheduled. The claimant and the independent medical examiner and their agents shall not alter or misrepresent the content of the recording and shall not distribute publicly the recording beyond its use in a hearing of the Board. The claimant may be accompanied to the examination by an individual or individuals of his or her own choosing. However, neither the examiner nor the claimant may disrupt or interfere with the examination by such recording or as a result of the presence to such companion or companions. The Board may draw a negative inference due to a claimant's failure to complete the questionnaire in whole or in part, or due to a claimant's or his or her companion's disruption of the examination, including finding that the claimant has refused to submit to an independent medical examination resulting in the suspension of benefits as permitted in subdivision (4)(b) of section 13-a of the Workers' Compensation Law and subdivision (d)(11) of this section.

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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
  7. 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).

A new section 325-1.6 is added to Title 12 NYCRR as follows:

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:

  1. 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.
  2. 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.
  3. 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. he 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.
  4. 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:
      1. Whether claimant is at Maximum Medical Improvement
      2. Whether the claimant's injury is permanent, and amenable to schedule (see 1.3, above)
      3. Identification of the injury(ies) in terms of severity
      4. 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).
      5. 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:
      1. 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.
      2. 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.
  5. 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.
  6. 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 GENERAL_INFORMATION@wcb.ny.gov, 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."

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