August 17, Mary Beth Woods Executive Director NYS Workers' Compensation Board 328 State Street Schenectady, NY Dear Ms.

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1 Lev Ginsburg, ESQ. Director of Government Affairs August 17, 2017 Mary Beth Woods Executive Director NYS Workers' Compensation Board 328 State Street Schenectady, NY Dear Ms. Woods; The Business Council of New York State appreciates the opportunity to provide comments on the Workers Compensation Board s draft Impairment Guidelines being completed pursuant to subparagraph (x) of subdivision (3) of Section 15 of the Workers Compensation Law. We recognize the difficulty of the task and acknowledge the significant amount of work that went into the creation of the document by both Board staff and the members of the New York State Society of Orthopaedic Surgeons. We have reviewed the document and have several serious areas of concern. The purpose of these comments is that they will be used by the Board constructively to create a better guideline that is in keeping with the mandate in the law and better reflects the realities of the New York s Workers Compensation System, than the draft guidelines that we have reviewed. Process: Generally, as we understand, the Workers Compensation Board contracted with the New York State Society of Orthopaedic Surgeons to draft the medical piece of the impairment guidelines for scheduled loss of use awards. The New York State Society of Orthopaedic Surgeons subsequently created an internal task force that then assigned specific topics and sections, correlating to specific body parts, to members of its organization throughout New York, specifically, Dr. Thomas Deuquin (Shoulder), Dr. Richard Uhl (Hand & Wrist), Dr. Michael Parks (Hip), Dr. Steven Weinfeld (Foot & Ankle) and Dr. Kory Reed (Nerves). It is worth noting, that according to available resources from the Workers Compensation Board, Drs. Uhl, Parks and Reed are approved to treat workers compensation patients in New York State, Drs. Deuquin and Weinfeld are not approved to treat workers compensation patients in New York State. As was explained by Dr. Lozman of the New York State Society of Orthopaedic Surgeons, the authors had vast discretion as to which sources they chose to utilize in drafting their particular section of the guideline. We have not been presented with any notes or indication as to what resources, studies or publications were used in preparing the guidelines. We also understand that through some process of consensus among the physicians on the task force, the current draft was compiled and each section put in a standard form. Missing from the process and the presentation is context. The Business Council has long pointed out that medical outcomes within New York s workers compensation system are worse, at least in their determinations for purposes of compensation, than like-kind patients and

2 injuries in workers compensation systems in other states or like-kind patients and injuries outside the workers compensation system within New York. While there may be a number of factors at play, it is impossible to ignore that the workers compensation system in New York is often an adversarial system, where there are financial incentives for worse medical outcomes thus necessitating purely objective measurements for impairment. Any impairment guideline for workers compensation should consider the variables of patient and provider characteristics with interventions and outcomes and provide measures of the variability inherent in these variables. It is clear from both the process and presentation that these draft guidelines, in current form, do not. While we recognize that the Board is under a tight time constraint and must publish guidelines by the September 1, 2017 deadline, after a statutorily mandated consultation with interested parties; the two hours of document review followed by a two-hour presentation by the New York State Society of Orthopaedic Surgeons is simply not enough time for a reasonable review of the materials. We are appreciative of the extension of time and the availability of document review for three days, but even with this, it is difficult to review and offer valuable suggestions with so little time. Given the many months that the draft has been in progress, greater opportunity for consultation would have been much more helpful in the creation of this draft and likely would have resulted in a product that adheres to the law and recognizes the complexities of the workers compensation system in a way that this draft simply does not. Statutory Mandate: The adoption of objective impairment guidelines for injured workers was a major component of the 2017 workers compensation reform legislation. Subparagraph (x) of subdivision (3) of Section 15 of the Workers Compensation Law states that, the permanency impairment guidelines shall be reflective of advances in modern medicine that enhance healing and result in better outcomes While we are certain that the authors of each respective section and those who collaborated to draft these guidelines are intimately familiar with their medical specialties and the medical advances therein, the draft guidelines do not accurately reflect these advances nor pose objective measurements of impairments. For example, the current Workers Compensation Impairment guidelines section 3.2 states that, In almost all cases of TKR, knee flexion is usually limited to degrees, which is equal to 35-40% loss of use of the leg. Add 10-15% for bone loss and the final schedule is 50-55% loss of use of the leg The draft guidelines list TKR (total knee replacement) under the Severe category, thus guaranteeing a finding of no less that a 60% impairment and as much as 100% for the same procedure that the old guidelines suggested 55%. This increase is especially troubling in light of the fact that there is simply no question that technology, procedures and outcomes for TKRs has dramatically improved since the current guidelines were written several decades ago. In fact, the American Academy of Orthopaedic Surgeons has stated very plainly that, Knee replacement surgery was first performed in Since then, improvements in surgical materials and techniques have greatly increased its effectiveness. Total knee replacements are one of the most successful procedures in all of medicine. According to the Agency for Healthcare Research and Quality, more than 600,000 knee replacements are performed each year in the United States. August 18, 2017 Page 2 of 6

3 Another example that helps illustrate an inappropriate upward impairment shift is carpal tunnel syndrome. The current Workers Compensation Impairment guidelines section 4.3 states, Carpal Tunnel Syndrome with or without decompression is usually given a schedule loss of the hand, which usually averages 10-20% loss of use. If symptoms persist and condition becomes disabling, consider classification The draft guidelines categorize carpal tunnel syndrome with incomplete nerve recovery as Moderate, thus guaranteeing a finding of no less than 30% impairment and as much as 60%. Once again the draft guidelines find impairments far beyond those in the current guideline for another procedure that has had an ever-increasing success rate. Every year more than 500,000 people in the US undergo surgeries for carpal tunnel syndrome. Surgery for CTS is among the most common hand surgeries. In various trials, 70-90% of patients who underwent surgery were free of nighttime pain afterward. Review Date: 7/14/2013 Reviewed By: Harvey Simon, MD, Editor-in-Chief, Associate Professor of Medicine, Harvard Medical School; Physician, Massachusetts General Hospital. Also reviewed by David Zieve, MD, MHA, Medical Director, A.D.A.M., Inc. Further, the draft guidelines rely extensively on pain scales as a measure of impairment. This is troubling and in contradiction to the statutory mandate for several reasons. The Visual Analog Scale or VAS scale, which is relied on heavily in the draft guidelines, is a completely subjective measure which falls under the exclusive control of a patient and is thus a completely inappropriate measure of impairment in the workers compensation system. The VAS scale is so unreliable as a measure in fact, that it is regularly misused and many believe has been a leading contributor to our nation and state s sever opioid crisis. In fact, the reliance on pain as a measure is inconsistent with New York s very own Workers Compensation Medical Treatment Guidelines and measures that the state has taken to curb the opioid crisis. During the presentation by the New York State Society of Orthopaedic Surgeons, Dr. Lozman discussed the guidelines reliance on the VAS as an important tool and reiterated multiple times the familiarity most people have with the scale. He suggested that anyone who has been in a hospital is familiar with the scale. However, the guideline s reliance on this measure and the reiteration during the presentation underscore just how inconsistent these guidelines are with advances in modern medicine. The guideline fully ignores the fact that in June 2016, the American Medical Association recommended that pain scales be removed in professional medical standards and in September 2016, the American Academy of Family Physicians did the same. These examples show plainly, even to the layperson, that the draft guidelines fail to comply with the statutory mandate that the impairment guidelines shall be reflective of advances in modern medicine that enhance healing and result in better outcomes. These examples illustrate that major advances in modern medicine are not being taken into account in this draft nor are the nation-wide efforts to curb the opioid addiction national emergency. Accordingly, it would be in violation of the Workers Compensation Law and the stated policy of the state for this draft to be adopted by the Board without extensive and substantive revision. August 18, 2017 Page 3 of 6

4 Specific Comments: The decision to utilize broad categories for the purposes of evaluating percentages of impairment is not a medical decision but a stylistic one. Such a system leaves far too broad of a range of impairment percentages and in many cases leaves the minimum percentage of impairment far higher than need be based on medical reality. While we believe that the category or bucket system will unnecessarily lead to higher impairment determinations than would be achieved were there no predetermined percentage floor, should the Board determine that it does not wish to deviate from the bucket system, the Board should expand the categories to ensure a more precise impairment determination. A more precise system could include the following breakdown, which would allow for complications within the ranges but not pushing cases to fall within a range that it does not belong in. Mild Mild / Moderate Moderate Moderate/Severe Severe 0-20% 21-40% 41-60% 61-80% % Further, the diagnostic categories and specific injuries therein need to be significantly refined. Many injuries are inappropriately categorized as Moderate when they should more accurately fall within a milder range while others, categorized as Severe, should more appropriately fall within a more moderate range. Some examples of this include but are not limited to: In most body part sections, Post Traumatic Arthritis should not appear in both the Moderate and Severe categories as there is no way to determine that such is a direct result of a surgical procedure. Total joint replacements should be removed from such a determination scale all together since such a replacement should leave a patient significantly less impaired than prior to surgery. There are inconsistent placements of amputations of various body parts from Moderate to Severe and back. Injuries such as Wever and Talus Fractures should be moved from Moderate to Mild. Knee meniscal resections of 60% should be removed from Moderate because impairment is not impacted. Rotater cuff complete tear of 3-4 ligaments should be removed from Moderate category because the number of ligaments does not impact impairment. August 18, 2017 Page 4 of 6

5 Simple fracture of shoulder now listed as Moderate more appropriately belongs in a Mild category. Additionally, the categories within the buckets fail to take into account modifiable individual characteristics which are known to influence function after surgery, including obesity, presurgical weight-loss, smoking or untreated diabetes as well as a patient s failure to comply with treatments and therapies. Further, the guideline is designed in a way that sets a baseline of impairment for a specific injury and then adds points for a variety of measures. We have already discussed the inappropriateness of the incorporation of pain in the guideline but also think that it is of paramount importance that the guidelines expressly state that a patient undergoing any exam for the determination of impairment will receive a score of 0 for all measures when the patient is found by the examiner to be evasive or uncooperative in the exam or if a patient refuses or prematurely ends an exam. Conclusion: The Business Council of New York finds that these draft guidelines are not within in the statutory mandate as prescribed in subparagraph (x) of subdivision (3) of Section 15 of the Workers Compensation Law because of the multiple instances where the guidelines fail to be reflective of advances in modern medicine in very key areas, most notably the use of pain as a measuring tool; its part in the exacerbation of the opioid epidemic, carpal tunnel syndrome surgeries, joint replacement surgeries and others. Further, and no less important, while the guideline was designed, as Dr. Lozman repeated several times in his presentation, to be repeatable by Orthopaedic Surgeons around the state, its very design fails to take into account several important factors about New York s Workers Compensation System. Dr. Lozman s presentation was very clear about the need of a physician using the guideline to rely on the information gleaned from ongoing relationships with patients throughout their injury, treatment and recover. Such a relationship may be optimal but in no way reflects the reality of some cases (often those in litigation) where a claimant changes doctors several times during the course of a case and completely ignores the process of independent medical examination, another important aspect of workers compensation. For these reasons, we find that these draft guidelines are in need of extensive and substantive revision to fulfill the legal obligations of the Board and provide New York s Workers Compensation system with a fair and objective tool with which to rate the impairments of injured workers. Please feel free to contact me if you wish to discuss these comments in further detail. Thank you. August 18, 2017 Page 5 of 6

6 Sincerely, Lev A. Ginsburg, Esq. Lev Ginsburg, Esq. August 18, 2017 Page 6 of 6