One of the greatest things the Board ever did for carriers was include a provision in the 2018 Workers’ Compensation Guidelines for Determining Impairment (“Guidelines”) that providers need to measure range of motion of unaffected contralateral limb and use that as a baseline, if appropriate. Section 1.3 of the Guidelines state that using the contralateral limb is not appropriate where the opposite side has been previously injured or is not otherwise available for comparison (in cases of amputation, for example).
So that brings us to the fun part. As we know, it’s virtually impossible to prove apportionment to pre-existing arthritis/degenerative conditions without proof that the prior condition was “disabling in a compensation sense”. That’s often impossible because most claimants have either been living with it without treatment, or they’ve treated with their primary care doctor and don’t disclose it because it wasn’t the result of an “injury”. And unless we know the treatment records are out there, you’re stuck. You can’t ask for what you don’t know exists and no Judge will authorize a fishing expedition.
THIS IS A WAY AROUND THAT! People typically develop arthritis symmetrically. While one side may have slightly more advanced arthritis if it’s the dominant side, it can generally be assumed that if one side has arthritis, the other side does as well. If that arthritis has resulted in loss of motion on the contralateral side, then we’re cooking! The Board’s provision essentially allows us to assume that if pre-existing degenerative arthritis caused losses in range of motion on one side, it did on the other as well. And if the contralateral limb was not injured in any other accident, you can cause that as the baseline instead of the normal values listed in the Guidelines. So it’s a way of apportioning out the prior degenerative condition without going through the torture of trying to prove apportionment. It’s simple: The provider measures both sides. If the unaffected limb has abnormal range of motion and no injuries, that has to be used as the baseline. PERIOD.
You may be saying to yourself, d’uh! We know that. But some providers don’t! I’ve personally had many depositions where providers think they just have to measure the contralateral side and not actually use it as a baseline. Which brings me to my helpful hint: BE SURE TO ASK THE DOCTOR IF THEY NOT ONLY MEASURED THE CONTRALATERAL LIMB, BUT WHETHER THEY USED IT AS A BASELINE AS WELL! If the answer to that is no, you pretty much instantly discredit their Schedule Loss of Use (SLU) opinion.
But what about cases where our own IME doesn’t do that either, you ask? Well that should never happen because we should not be using IMEs that don’t know the Guidelines! But under the general principle that everyone gets it wrong sometimes, YOU can figure out what the proper SLU should be by using the contralateral limb measurement yourself and applying the Board’s “formula” to use it as the baseline. Remember, the doctors are only qualified to take range of motion findings and render an OPINION on schedule loss of use, but the ultimate determination rests with the Judges who CAN take the measurements and apply them to the Guidelines sua sponte if both doctors misapply them. You should be pointing out to the Judge that both doctors made that error, and while the physical exam findings may be accurate, the conclusion as to percentage SLU is not. Then put forth the alternative number, and you should be good to go.
You can find how the appropriate formula for using the contralateral extremity as a baseline on the Board’s website on the page for “Impairment Guidelines: Scheduled Loss of Use Frequently Asked Questions”. http://www.wcb.ny.gov/content/main/hcpp/ImpairmentGuidelines/SLU-FAQs.jsp