2018 Workers’ Compensation SLU guidelines – General Overview


Prior to the Board’s adoption of the NY Workers’ Compensation Medical Guidelines to determine Schedule Loss of Use, the first draft appeared to be quite beneficial to carriers and self-insured employers because the range of motion deficiencies and corresponding SLU percentages were substantially lower than that found in the 2012 Medical Guidelines.  Also, the September Guidelines introduced a new form, called SLU1, which required claimant to fill out a pre-examination questionnaire answering questions regarding what movements, daily activities, and job duty functions that claimant can or cannot perform post-injury.  Unfortunately, this form was never adopted nor did the Board propose a draft of this form.  While we do not know specifically what this form would ask the claimant, it showed promise as it would give carriers and self-insured employers self-reported information from the claimant regarding his/her post-injury capabilities.


After much lobbying and pressure from claimant representatives, the Board withdrew its September, 2017 draft of the SLU Medical Guidelines and released an updated draft in November of 2017.  The November, 2017 Guidelines were essentially formally adopted by the Board in December of 2017.  A regulation is now on the books requiring the Board to use the newly adopted 2018 Medical Guidelines when determining a claimant’s schedule loss of use.  The 2018 Guidelines have done away with the SLU percentages for ROM deficiencies.  However, the Board did keep some elements of the original September, 2017 draft that will benefit the more common type of SLU injuries seen in Workers’ Compensation cases.


One benefit of the 2018 Guidelines is a set timeline of when an SLU medical opinion must be obtained.  Claimants must submit medical evidence of SLU after 6 months from the date of the injury in cases where claimant did not undergo surgery.  If claimant attempts to submit an SLU opinion prior to 6 months from the date of a work injury that did not require surgery, claimant can be precluded from submitting same.


The Six-Step Process


Unlike the 2012 SLU guidelines, the 2018 Guidelines require treating physicians and IME physicians to use a 6-step process when determining SLU.


The First Step requires that, during the SLU examination, the physician must identify function of the established body part and describe the movements that the body part performs.  The physician must also identify any other body parts that are affected by the movement or lack of movement of the established body part.


The Second Step requires the physician to describe the objective methods of testing range of motion.  While this may seem like a simple requirement, it is important to note that the physician cannot base any part of his SLU opinion on the mechanism of injury.  It will obviously be difficult to determine from a written medical report whether a physician included the mechanism of injury when determining the severity of claimant’s schedule loss of use, however, this guideline could prove to be a useful tool when cross-examining a physician during a deposition.  If a physician admits that he considered the mechanism of injury when determining claimant’s SLU, then this could be used to discredit the physician’s medical opinion.


The Third Step is very important as it requires the physician to test the range of motion of the injured body part 3 times and record the findings of each test.  If 3 tests are not performed for SLU purposes after 1/1/2018, the defense must request preclusion of claimant’s SLU opinion.  While it is likely that the physician can cherry pick the test that best fits the claimant, the 3 tests approach does limit the SLU range that the physician can attribute to the injured body part.  In situations where the 3 tests show vastly different ranges of motion, it will be a prime opportunity for the defense to attack the physician’s credibility and/or the objectivity of the range of motion testing.


The Fourth Step is the calculation of SLU based on the range of motion testing.  For the most part, the range of motion of the body part and corresponding SLU percentage is less than the 2012 Guidelines.  A prime example is the knee.  In 2012, a 110 degree range of motion for the knee would result in approximately a 20% SLU to the leg (57.6 weeks).  The 2018 Guidelines provide a 10% SLU for the leg for 110 degrees of range of motion.


The Fifth Step is the special considerations that tack on additional percentages to a claimant’s overall SLU.  The 2012 Guidelines’ special considerations were not beneficial for the carriers and employers because surgery was not considered for the more common SLU injuries.  For example, pursuant to the 2012 Guidelines, a rotator cuff tear automatically received an average of 10% SLU to the arm (15.6 weeks) despite whether or not claimant underwent surgery.  Likewise, a meniscus tear received an average of 7.5% – 10% SLU (21.6 – 28.8 weeks) despite whether claimant underwent surgery.  In 2018, if claimant does not undergo surgery for a rotator cuff tear or meniscus tear, then claimant is not entitled to any special consideration that can add to the overall SLU.


It is important to note here that when calculating SLU, one should look at the special considerations first.  The 2018 Guidelines provide charts that correspond to special considerations such as surgery, atrophy, and documented neurological deficiencies to a minimum SLU percentage.  In that regard, Step Five’s special considerations provide carriers and employers with a baseline SLU to give them an idea of what the minimum payout will be.  This will assist in predicting potential exposure in cases.


The Sixth Step is in regards to amputation.  The 2018 Guidelines provide a chart that assists physicians with corresponding SLU percentages for amputations of extremities, fingers, and toes.  Again, this should be the first place the carrier looks when facing claimant’s SLU opinion in an amputation case as it provides a baseline for the minimum exposure for the carrier.  However, we note that amputation cases will likely result in substantial SLU opinions and most severe amputation cases can be converted into LWEC classification cases.  Once the case is converted to LWEC, the 2018 SLU Guidelines no longer apply.


Converting an SLU case to LWEC Classification


It is important to note that the 2018 SLU Guidelines in no way affect the 2012 LWEC Classification Guidelines.  For LWEC determinations, the 2012 Medical Guidelines remain in effect until the Board proposes new Guidelines this upcoming December of 2018.


The Board has already passed a regulation that provides an opportunity for claimants with an SLU rating of 55% or higher, of one of the body parts, to request that their permanency award be converted to an LWEC classification (a hotly litigated topic).  However, the 2018 SLU Guidelines go one step further and provide any claimant with an SLU injury the opportunity to convert his/her case to an LWEC classification when:


  • Claimant has medical evidence of an acute or chronic joint inflammation;
  • Claimant has diagnostic imaging showing degenerative arthritis at the established site of injury; and/or
  • The medical evidence shows that claimant has had no improvement after all modalities of care have been exhausted.


At first blush, this seems frightening for carriers and employers.  However, it is important to note that in most cases involving an SLU opinion substantially below 55%, there is no real benefit to a claimant to convert his/her case to an LWEC determination.  Significantly, LWEC classifications protract a case as they are frequently litigated since so many contested factors are involved before coming to that final percentage.  Also, an SLU award provides a claimant with a lump sum payment, whereas LWEC awards are paid weekly.


Nevertheless, cases where a claimant with an SLU opinion less than 55% attempts to convert his/her case to LWEC will certainly be litigated as the requirements are ripe for argument.  For instance, the defense can certainly argue that claimant’s degenerative arthritis is not causally related or that claimant has shown at least some improvement over the course of his/her treatment.  In that regard, this portion of the 2018 SLU Guidelines appear to merely provide another opportunity for litigation, which goes against the Legislative purpose of the 2018 Guidelines:  simplify the SLU Guidelines so as to avoid protracted litigation.


One final important note on this topic is that SLU to LWEC conversion is never automatic as the Board has broad discretion in this regard.


Other Important Considerations


  • The weeks awarded for SLU body parts remains unchanged (Ex: 10% of the arm still equates to 31.2 weeks, etc).
  • SLU can still be settled by the parties by Agreement or Stipulation.
  • SLU awards are still appealable.
  • Section 32 Agreements are still fair game to close out indemnity and medical.