Under the Workers’ Compensation Law in New York, injuries or occupational diseases resulting in a permanent impairment to a claimant’s extremity, eyesight, hearing and/or facial disfigurement have long been subject to awards for schedule loss of use (SLU). Previously, after a party produced a medical opinion assigning a claimant with an SLU of a qualifying body part, the Workers’ Compensation Board would ultimately issue a “Notice Regarding Possible Award for Permanent Injury (SLU),” known as a form EC-81.7. The EC-81.7 would advise the receiving party of the SLU opinion and direct the party to either (i) advise the Board that it was accepting the opinion, or (ii) submit its own SLU opinion within a certain timeframe. The previous deadline to produce an independent medical examination (IME) report often ranged from 75-120 days.
Effective September 30, 2022, the Board implemented new processes and updated form EC-81.7 to expedite the resolution of a claim for SLU awards. The important takeaway from the updates to the EC-81.7 is that self-insured employers and carriers have a variety of options, rather than simply accepting the SLU opinion of the claimant’s doctor or obtaining an IME.
The Board has updated form EC-81.7 to set forth four options that carriers have to respond to a party’s SLU opinion. Of note, the Board has instituted a seventy-five day deadline to complete any of the following:
- File form RFA-2 advising the Board that the self-insured employer or carrier is accepting the claimant’s doctor’s SLU opinion.
- Schedule an IME to address permanency.
- Note: The IME report must be filed with the Board within 75 days of the date of the EC-81.7.
- Depose the claimant’s doctor without an IME.
- If the carrier does not wish to accept the SLU opinion or obtain an IME, then it has the option to solely cross-examine the physician who reported the SLU opinion. This may be an attractive option in situations where the carrier is questioning whether the Claimant has reached maximum medical improvement, or is seeking to obtain a lower SLU finding without an IME where there is a belief that the SLU opinion is inflated based on a misinterpretation of the Board’s Impairment Guidelines. The deposition transcript must be received by the Board within 75 days of the EC-81.7.
- Submit a written argument.
- In lieu of a deposition, if the carrier would prefer to raise an argument regarding the sufficiency and/or credibility of the other party’s SLU opinion, then the written argument must be received by the Board within 75 days of the EC-81.7. A written argument may be the most efficient route if there are obvious deficiencies with the physician’s SLU opinion. For instance, if the physician’s SLU opinion was issued less than six months from the date of accident or disablement, then the Board’s Impairment Guidelines provide that the issues of maximum medical improvement and permanency cannot be determined. In such a situation, a written objection to the EC-81.7 may be the most cost-effective way to have the EC-81.7 rescinded. Similarly, if the physician’s SLU opinion was issued within one year of the most recent surgery to the affected injury site, then submitting a written argument could be the most efficient method of objecting to the EC-81.7 on the basis that the issues of maximum medical improvement and permanency are not yet ripe.
In the ever-evolving landscape of the Workers’ Compensation Law in New York, we at Vaughan Baio & Partners want to ensure that our clients understand the changes that will substantially impact administering, litigating and resolving claims. Therefore, when it comes to addressing the issues of maximum medical improvement and SLU, we want our clients to be aware of their options so that they can reach the most effective and informed decisions.
