Workers' Compensation Committee Update
Staff Contact: Lev Ginsburg
December 28, 2017
Workers' Compensation Regulations and Guidelines
Last night, the Workers Compensation Board posted the adopted Section 325-1.6 (Impairment Guidelines) to Title 12 NYCRR and Part 441 of 12 NYCRR (Drug Formulary) available at the following links:
The final adopted impairment guideline is in many cases a mildly modified restatement of the existing guidelines with a few cost-saving changes and potential for more with proper administration. The final guideline is a complete departure from the approach seen in the drafts proposed in both August and September. Specific meaningful changes in comparison to current guidelines are as follows:
- Ankylosis of the elbow has changed from 90% to 66 2/3% depending on position.
- New values for moderate and marked defects of internal or external rotation of the elbow.
- Defects of flexion and abduction in the shoulder is rated as the greater of the two is rather than both unless both defects are moderate or higher an additional 10% is added, not to exceed ankylosis.
- Resection of the head of the humerus with prosthesis no longer has its own consideration.
- There is no special consideration for the rotator cuff.
- Shoulder joint replacement and hip joint replacement are now 35% for a good result and up to a maximum of 80% for a poor one rather than 60% to 66 2/3%.
- Special consideration for medial or lateral meniscus excision has been removed.
- Knee replacements have been changed from 50%–55% for a knee replacement to 35% for a good result up to 80%.
Most body-part categories have had no meaningful impairment measurement changes. There have been a few modifications that do reflect changes in modern medicine, namely the removal of rotator cuff tears and meniscus tears (which don’t typically result in permanent damage). These are usually a 10%-15% impairment, this change has potential to create savings for employers. Most noteworthy, is a provision directing medical providers to consider the contralateral extremity when determining a baseline for impairment. We are hopeful that this will ultimately lead to much more reasonable impairment numbers.
In three key areas, total replacements of knees, shoulders and hips, the impairment range has actually gone up from the current 55%-60% to now 35%-80%. While many of these cases will trend to the lower end of the spectrum (garnering savings for employers in many cases), since modern medicine has greatly improved these procedures and outcomes, the potential for large cost increases in specific cases is quite real. These ranges correspond with ranges in real dollars as high as $95,070.61 to $217,304.56 per case.
While The Business Council advocated for all impairment ratings to reflect the true measurement of an impairment, taking into account the full range of possible impairments, starting at the possibility that no impairment exists, the Administration opted to keep arbitrary minimums in place. Due to these minimums, we are concerned that the guidelines don’t properly reflect modern medical outcomes and while perhaps garnering some savings, will not achieve the desired policy of making all SLU awards correspond with the actual injury and impairment. The Business Council will continue to work with the Board to improve on the administration of the system to provide employers with a more fair and objective tool with which to rate the impairments of injured workers.
The Board has proposed a drug formulary designed by ACOEM as a New York specific formulary. The formulary, which will likely go into effect on July 1, 2018, is generic drug based and does away with costly, ineffective compounds. We will be reviewing the formulary and ask for your input. They will be published in the State Register on January 3, 2018 and will be followed by a 60-day public comment period.