Hamberger & Weiss LLP


Board’s Rollout of Proposed New SLU Guidelines Continues; Met with Opposition by Labor and the Claimants’ Bar

In our Special Alert earlier this month we discussed the Board’s release of its proposed new SLU Guidelines and the accompanying regulations. For those of you have not had an opportunity to do so, we invite you to click this link to read our white paper containing our analysis of the proposed guidelines. There have been mixed messages from the Board on the current handling of SLU claims following the release of the proposed guidelines and regulations. Also the proposed guidelines have been met with vehement opposition from Labor and the claimants’ bar.

Shortly after publication of the proposed guidelines, the Board issued letters withdrawing previously issued EC-81.7s that directed development of the record on schedule loss of use. The letters stated that the Board wanted to avoid a situation where a claimant attended an SLU exam which would no longer have evidentiary value in light of the proposed guidelines which would be implemented on 1/1/2018.

The shift in policy lasted only a week; we have now heard from Board examiners that the Board is rescinding that policy and the parties will be expected to develop the record on SLU cases in their usual course under the current Impairment Guidelines. This of course raises the question of what will happen to cases that do not reach a final decision on SLU prior to the implementation of new guidelines on 1/1/2018.

Since the Board’s introduction of the proposed guidelines and regulations, Labor and the claimant’s bar have instituted an aggressive lobbying and social media campaign to convince the Board to reject them in their entirety and start from scratch. That should give our readers some indication of how favorable the proposed Guidelines appear to be to employer and carrier interests. On 9/26/2017, the New York State Assembly’s Labor Committee held a hearing, attended only by the Democratic members of the committee, where various stakeholders whose interests are aligned with Labor testified against implementation of these proposed guidelines. The Board also presented a number of its own witnesses in support of the proposed Guidelines.

We would like to remind our readers that the comment period for the proposed Guidelines closes on 10/23/2017 and that all stakeholders have been invited by the Board to submit comments concerning the proposed regulations and guidelines through an online survey.

We invite you to contact us with any questions that you may have regarding the proposed guidelines and their accompanying regulations.

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