State News : New York

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.


New York

HAMBERGER & WEISS LLP

  (716) 852-0003

The New York State Legislature continues to pass workers’ compensation reform bills, the latest of which would amend WCL §15(6) to increase the minimum compensation rate to one fifth of the state average weekly wage for all dates of injury after the effective date of the amendment. The bill, S8271/A7178, passed both the Senate and the Assembly in early June and now needs only Governor Hochul’s signature to become law. Like the legislation defining temporary total disability we discussed in our last issue, this bill (as of this writing) has still not been delivered to the governor.

The legislation is undoubtedly a win for lower wage workers who will benefit from the higher minimum compensation rate. Undoubtedly, this will also increase workers’ compensation insurance premiums as well as costs for self-insured employers. The current minimum compensation rate is $150.00 per week. The state average weekly wage of 2021 was $1,688.19, meaning that under this legislation, the minimum compensation rate would be increased to $337.64. Those claimants whose weekly wages are less than or equal to the minimum rate will receive their full wages.

 

Court Decision Affirms that Physicians Must Have Sufficient Knowledge of Claimant’s Work Activities in Occupational Disease Claims

 

On 5/26/22, the Appellate Division, Third Department decided Bonet v. New York City Transit Authority. This decision reaffirms several recent decisions from the Court holding that, in repetitive use occupational disease claims, a treating physician must have adequate knowledge of the claimant's work activities before commenting on whether the work activities would be likely to cause the claimed medical condition. In this case, the Court affirmed a Board Panel decision disallowing claimant's repetitive use occupational disease claim, highlighting the fact that physician who commented on causal relationship lacked "… adequate knowledge of any of claimant's specific job duties, except in the most general sense, or the amount of time spent on those duties." The medical reports from claimant's treating physician stated only that claimant "injured himself due to repetitive motions and generically identified the critical demands of claimant's employment as bending, pushing, pulling, lifting, carrying, reaching above shoulder level, sitting, standing, and walking."

This decision serves as a reminder that repetitive use occupational disease claims are not automatically compensable merely because a treating physician asserts causal relationship for the claimed injury site. The treating physician must have adequate knowledge of the nature of the claimant's work activities, and claimants must prove that their case meets the specific legal requirements for a repetitive use occupational disease claim. These legal requirements are more exacting than requirements for a standard accidental injury claim. Consultation with defense counsel on whether evidence produced by a claimant satisfies the legal requirements for a repetitive use occupational disease claim is useful in many cases because a claimant’s initial proof often fails to check one or more of the necessary boxes required to establish a repetitive use occupational disease case.

 

H&W LLP Conditional Payments Team Saves Clients Over $1,000,000 in 2022

 

As of August 2022, the Hamberger & Weiss LLP conditional payments team has saved our clients over $1,000,000. With 4 months still left in the year, the conditional payments team is on track for a record year.

Hamberger & Weiss, LLP provides Medicare Compliance services, including MSAs with or without CMS pre-settlement approval, conditional payment lien research and recovery at CMS and Treasury levels, MAP lien research and recovery and NGHP Mandatory Insurance Reporting guidance. Contact our partner Nicole Graci at ngraci@hwcomp.com for your conditional payment, MAP and Section 111 reporting needs.

 

NY WCL Reference Sheet Available Online

 

As a reminder, the Hamberger & Weiss LLP New York Workers’ Compensation Law Reference Sheet is available online for claims professionals that need a handy reference tool in day-to-day claims handling. The reference sheet has the maximum and minimum compensation rates dating back to 1990, the SLU and LWEC tables, common due dates, and summaries of laws concerning liability, defenses, settlements, and medical treatment issues.

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

 

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A bill amending the definition of temporary total disability in the New York Workers’ Compensation Law has passed both the Senate and the Assembly and now only needs the governor's signature to become law. Our white paper discussing the impact of this bill on the workers compensation system in New York is available for download here

Link to white paper (to cut and paste into your browser if needed): https://mcusercontent.com/0fe971201141285604fd6d1a7/files/aac6e9b3-755a-a894-87f4-6f32ff9cdf80/tt_bill_white_paper.01.pdf

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

A bill amending the definition of temporary total disability in the New York Workers’ Compensation Law has passed both the Senate and the Assembly and now needs only Governor Hochul’s signature to become law. The bill modifies Section 15(2) of the Workers’ Compensation Law to define temporary total disability as “the injured employee’s inability to perform his or her pre-injury employment duties or any modified employment offered by the employer that is consistent with the employee’s disability.” Presently, temporary total disability in New York is not defined by the statute. In the absence of statutory guidance, caselaw and Board policy require that a temporary total disability finding be based on medical evidence showing a claimant’s inability to perform any type of employment, not just the claimant’s pre-injury or at-injury job.
 
The revised definition of temporary total disability in the bill may effectively eliminate both temporary partial disability awards and the attachment to the labor market defense. Traditionally, assessments of temporary disability were made by physicians and the determination of the degree of disability was based on the Board’s evaluation of the opinions given by the medical experts in each case. A claimant’s inability to return to his or her pre-injury employment is not necessarily a medical determination. Should this bill become law, even claimants who retain significant work capacity, but are found to be unable to return to their pre-injury employment or modified work by the employer, may receive temporary total disability benefits. Such claimants will be treated as having a total disability regardless of the degree of disability opined by their own physicians. This will give injured workers little incentive to attempt to return to work. Even a claimant who has as little as a 5% degree of disability will be allowed to receive temporary total disability awards so long as they are unable to perform all of their pre-injury employment duties.
 
We predict that this bill will significantly reduce the application of the attachment to the labor market defense. Recall that a claimant is only required to demonstrate attachment to the labor market if that claimant is under a partial disability. Should this bill become law, for the reasons noted above, it will be easier for a claimant to remain on temporary total disability status. Even if a claimant’s own physician opines that the claimant has a significant work capacity, so long as the claimant is unable to perform his or her pre-injury employment duties, the claimant will still be deemed temporarily totally disabled and will not be required to look for work. 
 
Another consequence of the bill is that it will increase the protracted healing period for schedule loss of use awards. Given the ease with which a claimant can maintain temporary total disability status under the definition provided in this bill, we expect that claimants will easily exceed the protracted healing periods set out in the statute. This will result in significant increases in schedule loss of use awards, due to the additional award for protracted healing, at permanency.
 
Most concerning is this bill’s potential to eliminate the permanent partial disability caps in WCL §15(3). Although this bill purports to modify only the definition of temporary total disability under WCL §15(2), recall that the Appellate Division in Sanchez v. Jacobi Medical Center, 182 A.D.3d 121 (3d Dep’t 2020) ruled that in the case of a claimant who is classified with a permanent partial disability and is later found to have a temporary total disability, the earlier permanent partial disability classification is set aside and the durational limit (or “cap”) of that permanent partial disability is tolled while the claimant is receiving temporary total disability benefits. Thus, under this new definition of temporary total disability, permanently partially disabled claimants could potentially receive temporary total disability benefits indefinitely so long as they are “unable” to return to their at-injury job. 
 
Finally, the proposed bill will increase litigation costs for employers and carriers. Since the determination of total disability is no longer solely a medical question, parties will want to take testimony from the claimant and employer witnesses to determine the claimant’s at-injury job duties and the claimant’s ability to perform them, not to mention whether an offer of modified duties is consistent with the disability.  Because the question of total disability is now specific to each claimant’s unique circumstances, this bill will also increase the need for physician depositions. Parties to a case will want to cross-examine the physicians on the claimant’s ability to return to work to that claimant’s specific job, or to any modified job offered by the employer. 
 
We recommend that, should this bill be signed by the governor, that employers make every effort to return claimants to light duty work consistent with work restrictions assigned by their physicians. We would also recommend that carriers and administrators work with employers to obtain detailed descriptions of the physical requirements of a claimant’s at-injury job at the beginning of a claim as this evidence will be needed in determining total disability throughout the case. 
 
The remaining steps for this bill to become law are delivery to the governor by the legislature and signing of the bill by the governor. It is possible that the governor could insist on chapter amendments to the bill prior to signature or even veto the bill entirely. We recommend that our readers with an interest in preventing this bill from becoming law to write to their elected officials, especially Governor Hochul, to oppose enactment of this amendment into law.
 
Please feel free to contact our partner Ron Weiss with any questions about this topic.

 

Mark Hamberger Receives Greg Saxum Award from New York Self Insurers Association

 

Congratulations to Mark Hamberger, who received the Greg Saxum Award from the New York Self Insurers Association (NYSIA). The Greg Saxum Award is NYSIA’s highest honor, and is given in tribute to the legacy of Attorney Greg Saxum, who provided inspired leadership, unwavering friendship, wisdom, and wit to NYSIA for more than 30 years. The Greg Saxum Award is awarded by the NYSIA Board of Managers to an individual who exhibits these qualities. We are thrilled that Mark was bestowed this tremendous honor. 

 

Susan Duffy Retires from Partnership

 

Susan Duffy will retire from her H&W partnership but will maintain "Special Counsel" status with the firm effective 6/30/22. Susan intends to be available for special projects for the firm from time-to-time. Susan was one of the founding partners of Hamberger & Weiss. She specialized in complex claims and has always had an interest in legislation and policy issues. She was a member of the Governor’s Advisory Committee on the Re-codification of the New York State Workers’ Compensation Law. She was also a team member for the Business Council of New York on the Governor’s Task Force, which worked to establish procedures and guidelines to effectuate the 2007 reform legislation on loss of wage earning capacity and permanent partial disability benefit caps.

A prior Chair of the New York State Bar Workers’ Compensation Division, Susan has lectured widely on workers’ compensation topics and mentored many attorneys and claims representatives on the vagaries of New York Workers’ Compensation practice over the years. Susan is listed in The Best Lawyers in America in the field of Workers’ Compensation Law and was inducted as a Fellow in the College of Workers’ Compensation Lawyers in 2012. 

We will miss Susan’s daily presence in the office, her wisdom, wit, good humor, and eagerness to take on difficult problems. We wish her and her family all the best in her retirement.

 

Claimants’ Bar Legislative Priorities Not Limited to Temp Total Bill

 

In addition to the bill defining temporary total disability, there are at least two other pending bills pending in the legislature that, should they become law, will significantly increase workers’ compensation costs in New York and undue much of the compromise reached in the 2007 workers’ compensation reform package. 

Bill A1220-A/S1024 would amend the definition of permanent total disability under WCL §15(1) to include a claimant’s inability to perform “the full range of sedentary work, or approval for federal Social Security Disability benefits as a result of compensable accident or occupational disease.” This bill is currently pending in the New York State Senate Rules Committee. This bill would further serve to destroy the durational limits (caps) on permanent partial disability benefits by easing the way for many more claimants to be classified with a permanent total disability. The caps on permanent disability benefits only apply to permanent partial disability. This bill would allow those claimants who qualify for federal Social Security benefits to obtain permanent total disability benefits. Additionally, the bill includes the vague language "the full range of sedentary work,” which would suggest that those claimants alleging an inability to perform all components of sedentary work would qualify for permanent total disability. 

Bill A1098/S1023 would amend WCL §35 (the “Safety Net” provisions) to define “extreme hardship” and allow the extreme hardship provision to apply to claimants with a loss of wage earning capacity greater than 50%. Presently, the extreme hardship provision would only apply to claimants with a loss of wage earning capacity greater than 75%. Whether or not a claimant has an “extreme hardship” allowing reclassification with a permanent total disability or total industrial disability is currently decided on a case-by-case basis by the Board. This bill would define “extreme hardship” to allow it to apply where the claimant’s income from Social Security disability benefits and disability would be less than fifty percent of his or her average weekly wage upon termination of permanent partial disability benefits, if the claimant will be unable to meet expenses for himself or herself and any dependents upon termination of permanent partial disability benefits, where additional medical, functional, or vocational factors arose after classification that further eroded the claimant’s wage earning capacity, or where the claimant’s income would be below the federal poverty guidelines upon the end of his or her permanent partial disability benefits. 

Without a definition of what “expenses” claimants are unable to meet for themselves and their dependents, nearly all claimants could find a way to qualify for extreme hardship reclassification. Also, given that age is an aggravating factor in loss of wage earning capacity, every claimant will be arguably be able to qualify for extreme hardship reclassification for the simple fact that they are older upon the termination of their permanent partial disability benefits than they were when they began. 

We recommend that our readers with an interest in preventing these bills from becoming law to write to their elected officials to oppose them. 

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

Employers and carriers were delighted by the Appellate Division’s 2018 decision in Genduso v. New York City Department of Education. That case held that a claimant’s schedule loss of use award would be subject to an automatic deduction for any prior schedule loss of use awards to the same body member. Genduso prevented a claimant from receiving separate schedule loss of use award for separate joints of the same limb. For example, if a claimant received an earlier 15% schedule loss of use of the arm due to an elbow injury two years ago, but later was assessed a 30% SLU of the arm following a shoulder injury, the new 30% SLU would be reduced by the prior 15% arm SLU assigned to the elbow, yielding a net 15% SLU to the arm. The claimant’s bar has challenged this decision in numerous cases over the years and we were concerned that Genduso would be overturned when the Court of Appeals granted certiorari in Johnson v. City of New York and Liuni v. Gander Mountain.

On 4/21/22, the Court of Appeals issued its decision in Johnson v. City of New York and Liuni v. Gander Mountain. This decision does not explicitly overturn Genduso, but it does hold that a claimant may receive separate SLU awards for “different injuries to the same statutory member,” so long as the claimant proves that the second injury, considered by itself, has caused an increase in the claimant’s loss of use. We do not believe that this will be a difficult burden for a claimant who has separate injuries to different joints or parts of the same body member/limb, such as in our elbow/arm example above. The Court asserted in its decision that WCL §15(7) provides that a claimant may receive more than one SLU award in connection with successive injuries to the same body member but that any such award must be limited by “any diminished wage earning capacity due to the previous disability.”

In Johnson, the claimant had bilateral knee injuries in 2006 and then later injured both hips in a 2009 accident. He received schedule awards in the 2009 injury of a 50% SLU of the left leg and a 52.50% SLU of the right leg. After Johnson was awarded these schedules, he reached maximum medical improvement in the 2006 knee injuries. The Law Judge in Johnson found that the claimant had an overall 80% loss of use of the left leg and a 40% loss of use of the right leg. But, given the Genduso decision, the Law Judge reduced the schedule loss of use award by the 50% prior loss of use to the left leg and 40% loss of use to the right leg for the bilateral hip injuries in the 2009 case, leaving the claimant with an “additional” SLU award of 30% for the left left and 0% for the right leg. Both the Board and the Appellate Division affirmed. The Court of Appeals affirmed, citing the absence of evidence in Johnson that would have allowed the Board to determine the loss of use of his legs solely related to his bilateral knee injuries.

The Court also cited support for its decision from Zimmerman v. Akron Falls Park - Erie County, 29 N.Y.2d 815 (1971). Zimmerman involved a claimant who received separate schedule loss of use awards: one for his hand in 1924 for a forearm amputation and a later 1967 injury to his arm for a shoulder injury. The Zimmerman court did not reduce the 1967 schedule award by the 1924 award, noting that the 1924 injury did not affect the 1967 shoulder injury. Accordingly, the court asserted that Zimmerman establishes that offset is not required when the claimant demonstrates that the later injury increases the schedule loss of use of the affected body member beyond the schedule awarded in the earlier injury. In a sharply worded dissent, Judge Wilson argued that the majority’s discussion of Zimmerman was incorrect and wholly unnecessary to their holding. Rather, Judge Wilson felt that Genduso was wrongly decided and that both Johnson and Liuni should have been reversed.

In Liuni, the claimant injured his left elbow in 2007 and received a 22.5% SLU of the left arm for that injury. He later injured his shoulder in 2014. The Workers’ Compensation Law Judge ruled that Liuni had an overall SLU of 50% to the left arm, an increase of 27.5% over schedule loss of use from the 2007 left elbow injury. Liuni’s physician said that the two injuries were separate and not in any way related. The Board and the Appellate Division credited this opinion but noted that under Genduso that the later schedule loss of use award would have to be reduced by the prior schedule loss of use award. The Court of Appeals reversed because there was evidence from Liuni’s expert that the two injuries were separate and distinct pathologies.

In Johnson, the Court of Appeals did not feel that there was sufficient evidence that the two injuries were sufficiently separate from one another because Johnson’s expert testified that his hip and knee injuries were not isolated from one another, leaving open the question of how much loss of use of his legs were related to the knee injuries.

Claims adjusters reviewing cases involving a new injury to a body member for which the claimant received a prior schedule loss of use award will want to consider obtaining an independent medical examination on the question of whether the claimant has experienced any increase in the loss of use above and beyond the previous schedule loss of use award for that same body member. The independent medical examiner will need to state whether any increase in the loss of use is due solely to the new injury or if the increase results from a combination of the new injury and the previous injury (or injuries) to that body member. Similarly, in defending schedule loss of use claims, employers and carriers will want to be sure that attending physicians apply the same standard in addressing schedule loss of use.

 

Colleen Willis Retires from Partnership

 

Colleen Willis has retired from her H&W partnership but will maintain "Special Counsel" status with the firm and intends to handle cases from time-to-time after some much needed travel and time with her family.

Law was a second career for Colleen, who graduated from the State University of Buffalo Law School following an 18 year career as a Registered Nurse, working in both hospital and community based settings.

Resident in our Rochester office, Colleen was known as the firm "mom" - making sure not only that our briefs were filed on time but that we remembered to wear a hat before going outside in the winter weather.

She wanted our wonderful clients to know that she enjoyed working with them over the years and that they are "a pretty amazing, smart, and hard working group with challenging jobs." Amen, Colleen - you will be missed by all of us here at Hamberger & Weiss.

 

Board Enforces Requirement for Certification of RFA-2s

 

We have learned that the Board will no longer consider RFA-2s that do not have the certification section completed at the bottom of the form. Our clients will recall that the certification section asks whether the person signing the RFA-2 has discussed the issues cited on the RFA-2 with the opposing party or whether that person attempted to contact the opposing party to discuss the issues raised. It appears now that failure to complete this section will result in the Board taking no action on the RFA-2 so please remember to work this requirement into your RFA-2 filing processes.

 

Appellate Division Extends Taher Rule in New Decision

 

On 4/14/22, the Appellate Division, Third Department decided Gambardella v. New York City Transit Authority. This decision holds that the Court's previous decisions in Taher v. Yiota Taxi and Arias v. City of New York apply to cases where a claimant is not working and is not receiving indemnity benefits because they have withdrawn from the labor market. As a reminder, Taher and Arias held that claimants may receive both a permanent partial disability classification and schedule loss of use award(s) in the same claim at the same time. For claimants who are working and not receiving lost wage payments at the time of permanency, Taher and Arias allow the claimant to receive a lump-sum schedule loss of use award payment. That award then becomes a credit against any future lost wage benefits flowing from the permanent partial disability classification should they later occur. The Court’s holding in Gambardella shows a willingness to extend the Taher and Arias holdings beyond the original fact patterns in those cases. Gambardella raises the question of whether the Taher / Arias rule will also apply to other fact patterns in which a claimant is not working but also not receiving lost wage payments at the time of permanency.

 

Reminder - Don't Blindly Split the Difference on SLUs

 

In recent months we have seen quite a few stipulations, prepared by claimant's counsel and signed by our clients that "split the difference" on SLU opinions, even when both the attending physician and IME have misapplied the guidelines. Our readers may recall that we discussed this in March 2020 when we reminded our readers that the Appellate Division's decision in Parody v. Old Dominion Freight held that the Board is not bound by the medical opinions of schedule loss of use (SLU) in the record and may fashion its own SLU assessment based on the medical evidence and the impairment guidelines if the ultimate result is supported by the record, even if the percentage loss of use awarded has not been given by any medical expert in the record. Thus, a physician's failure to follow the procedure described in the Impairment Guidelines for determining SLU can be used to obtain significant savings on the SLU award in some cases.

 

Board Announces Changes to C-8.1/C-8.4 Forms

 

The Board has announced some important updates to the C-8.1 and C-8.4 forms. First, the Board reminded payers completing these forms that only the last four digits of the claimant's Social Security number should be put on the form. The Board determined as of 6/16/21 that it would no longer require the claimant's full nine digit Social Security number on the form.

The Board is also eliminating Part A of the C-8.1 form and publishing a new C-8.1 form on 7/1/22. Payers will be required to use the new form as of 8/15/22. The new C-8.1 form eliminates the objection "Requested treatment is not for an established site or condition," and moves it to a new RFA-2 form that will be published on May 2, 2022. The Board does not comment on the other objection reasons noted on the C-8.1 such as:

  • Withdrawal of authorization based on a conflicting medical report

  • Termination of further medical treatment based on a conflicting medical report

  • Objection to further treatment based on non-appearance at a scheduled IME

  • Denial of authorization based on a medical appliance or program not being covered under the WCL

  • Medical necessity of a requested special service

Presumably, employers and carriers will still be able to raise these objections via the Board's RFA-2 but we are concerned that the Board did not address these objections directly in their announcement.
As of 8/15/22, payers will be required to use the new forms and should the old forms be submitted after that date, the Board will take no action.

 

Wojcik Wins Extreme Hardship Determination Case

 

Our partner, Melanie Wojcik, successfully defended an extreme hardship determination claim under WCB §35(3), receiving a favorable decision from a Board Panel on in Toys R Us. WCB Case No. 80801667 (4/22/22). In this case, the claimant was previously classified with an 80% loss of wage earning capacity and when he reached the durational limit of his permanent partial disability benefit, he applied for further benefits under the extreme hardship determination provision of WCB 35(3). During litigation, Melanie cross-examined the claimant, and established that the claimant's expenses were typical for someone on a fixed income, that some of the claimant's costs were discretionary and that the claimant made no effort to reduce his expenses. Nonetheless, the Law Judge found that the claimant met the criteria for extreme hardship and awarded ongoing benefits.

Melanie appealed the Law Judge's decision to the Board Panel. In an unanimous decision, the Board Panel overruled the Law Judge, finding that the mere fact that a claimant's expenses exceed his income does not, by itself, entitle that claimant to further benefits under an extreme hardship redetermination.

Our clients should remember to scrutinize claims for ongoing benefits under the extreme hardship determination provision. Please contact our office for advice and recommendations for any assistance.

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

H&W Webinar: Wednesday 4/20/22 - 

 MTGs for PTSD and Acute Stress

 

On 4/20/22, Victoria Hahn will present "Medical Treatment Guidelines for PTSD and Acute Stress Disorder". The New York Workers’ Compensation Board has adopted new Medical Treatment Guidelines for post-traumatic stress disorder (PTSD) and acute stress disorder. This webinar will review those new guidelines, including an overview of diagnosis, assessment, and treatment recommendations. We will also review how the Board has ruled in previous PTSD claims and how these prior rulings may carry over into the new Guidelines.

**NY Attorney CLE credit is pending for this program

It will be held at 11:00 AM EST on Wednesday, April 20th 2022. Please click here to register. 

You may also copy the link below and paste into your browser to register: https://www.compevent.com/webinars/index.php?event_web_access_code=c231169546bac82fdf92c3ae6fd83e75

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

By Nicole Graci of Hamberger & Weiss LLP (NY) and Daniel Hayes of Teague Campbell Dennis & Gorham LLP (NC)

The NWCDN has re-established its Medicare Compliance Committee, and what great timing! On January 10, 2022, the Centers for Medicare and Medicaid Services (CMS) updated the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide, which it does periodically, but this update sent shockwaves throughout the Medicare compliance community. As our first act as a committee, we offer the following analysis of what has become known as “The 4.3 Update.”

CMS’ 1/11/22 update to Section 4.3 of the WCMSA Reference Guide is a strong message about CMS’ view of evidence based or non-submit WCMSA products. On March 15, 2022, CMS updated the Reference Guide again, to clarify that message.

CMS expressed its concern that products commonly called “evidence-based” or “non-submit” MSAs are not adequately protecting Medicare’s interests.  Here is the full text of the 1/10/22 update,

4.3 The Use of Non-CMS-Approved Products to Address Future Medical Care

A number of industry products exist with the intent of indemnifying insurance carriers and CMS beneficiaries against future recovery for conditional payments made by CMS for settled injuries.  Although not inclusive of all products covered under this section, these products are most commonly termed “evidence-based” or “non-submit.”  42 C.F.R. 411.46 specifically allows CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest.  Unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot be certain that the Medicare program’s interests are adequately protected.  As such, CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement.  As a matter of policy and practice, CMS will deny payment for medical services related to the WC injuries or illness requiring attestation of appropriate exhaustion equal to the total settlement less procurement costs before CMS will resume primary payment obligation for settled injuries or illnesses.  This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount.

There has been an increase in the use of evidence based or non-submit WCMSA products in the last few years. Under the theory that CMS’ method for calculating a WCMSA results in inflated medical and prescription expense, resulting in higher settlement costs, evidence based or non-submit MSAs are calculated using alternative methods, resulting in reduced treatment and medication over a claimant’s lifetime and less expense. These products are often accompanied by “guarantees,” offers of post-settlement professional administration of MSA funds, structured WCMSAs and, in some cases, reversionary interests. In response to the 1/11/22 update, the purveyors of evidence based or non-submit MSA products immediately published analyses, arguing that CMS was contradicting the well-established legal reality that CMS pre-settlement approval of a WCMSA is voluntary. Detailed arguments were presented, outlining how CMS was overreaching its authority. CMS responded with the subsequent update on March 15, 2022.

However, a close reading of the January and March updates and review of the Medicare Secondary Payer statute and accompanying federal regulations reveals that the updates are consistent with CMS’ long standing policy that CMS pre-settlement approval, although not required by law, has been and continues to be recommended. The March 15, 2022 update softened the language of the January update, notably changing “will deny” to “may at its sole discretion deny” in reference to post-settlement payment of Medicare covered, causally related services. In addition, the beneficiary/claimant’s burden to attest to proper expenditure of the MSA funds is clarified to include a showing that, “both the initial funding of the MSA was sufficient, and utilization of MSA funds was appropriate.” CMS also clarified that its policy applies to notifications of settlements using evidence based or non-submit MSAs from 1/11/22 forward, but that it is flagging pre-1/11/22 notifications as well. CMS went on to reiterate the legal requirement of the Medicare Secondary Payer statute, regulations, and CMS memorandum that primary payers are obligated to consider Medicare’s interests at settlement, while recognizing that all settlements do not meet the CMS work review thresholds for pre-settlement approval of a WCMSA. It is well known that the CMS work review thresholds are internal and are not safe harbors. 

The full text of the March 15, 2022 update is below, with changes highlighted,  

4.3 The Use of Non-CMS-Approved Products to Address Future Medical Care

A number of industry products exist for the purpose of complying with the Medicare Secondary Payer regulations without participation in the voluntary WCMSA review process set forth in this reference guide. Although not inclusive of all products covered under this section, these products are most commonly termed “evidence-based” or “non-submit.” 42 C.F.R. 411.46 specifically allows CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest. Unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot be certain that the Medicare program’s interests are adequately protected. As such, CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement. As a matter of policy and practice, CMS may at its sole discretion deny payment for medical services related to the WC injuries or illness, requiring attestation of appropriate exhaustion equal to the total settlement as defined in Section 10.5.3 of this reference guide, less procurement costs and paid conditional payments, before CMS will resume primary payment obligation for settled injuries or illnesses, unless it is shown, at the time of exhaustion of the MSA funds, that both the initial funding of the MSA was sufficient, and utilization of MSA funds was appropriate. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount. Notes: This official policy shall apply to all notifications of settlement that include the use of a non-CMS-approved product received on, or after, January 11, 2022; however, flags in the Common Working File for notifications received prior to that date will be set to ensure Medicare does not make payment during the spend-down period. CMS does not intend for this policy to affect any settlement that would not otherwise meet review thresholds. This comment does not relieve the settling parties of an obligation to consider Medicare’s interests as part of the settlement; however, CMS does not expect notification or submission where thresholds are not met.

CMS did not change its prior WCMSA Reference Guide language, making it clear that the submission process is completely voluntary, as follows:

There are no statutory or regulatory provisions requiring that you submit a WCMSA amount proposal to CMS for review. If you choose to use CMS’ WCMSA review process, the Agency requests that you comply with CMS’ established policies and procedures.

WCMSA Reference Guide., pp. 1, 9 (emphasis original).  Of note, this italicized language is found twice in the Reference Guide

The Medicare Secondary Payer statute and accompanying regulations have always afforded CMS the authority to deny payment for work-related treatment if a settlement does not adequately protect Medicare’s interests.  See 42 C.F.R. 411.46, emphasis added:

§ 411.46 Lump-sum payments.

(a)           Lump-sum commutation of future benefits. If a lump-sum compensation award stipulates that the amount paid is intended to compensate the individual for all future medical expenses required because of the work-related injury or disease, Medicare payments for such services are excluded until medical expenses related to the injury or disease equal the amount of the lump-sum payment.

(b)          Lump-sum compromise settlement.

(1)          A lump-sum compromise settlement is deemed to be a workers' compensation payment for Medicare purposes, even if the settlement agreement stipulates that there is no liability under the workers' compensation law or plan.

(2)          If a settlement appears to represent an attempt to shift to Medicare the responsibility for payment of medical expenses for the treatment of a work-related condition, the settlement will not be recognized. For example, if the parties to a settlement attempt to maximize the amount of disability benefits paid under workers' compensation by releasing the workers' compensation carrier from liability for medical expenses for a particular condition even though the facts show that the condition is work-related, Medicare will not pay for treatment of that condition.

(c)           Lump-sum compromise settlement: Effect on services furnished before the date of settlement. Medicare pays for medical expenses incurred before the lump-sum compromise settlement only to the extent specified in § 411.47.

(d)          Lump-sum compromise settlement: Effect on payment for services furnished after the date of settlement -

(1)          Basic rule. Except as specified in paragraph (d)(2) of this section, if a lump-sum compromise settlement forecloses the possibility of future payment of workers' compensation benefits, medical expenses incurred after the date of the settlement are payable under Medicare.

(2)          Exception. If the settlement agreement allocates certain amounts for specific future medical services, Medicare does not pay for those services until medical expenses related to the injury or disease equal the amount of the lump-sum settlement allocated to future medical expenses.

 

Essentially, the January and March 2022 updates did not change anything regarding a primary payer’s obligation to protect the Medicare fund by considering Medicare’s future interests at time of settlement. Similarly, the updates did not change the CMS work review thresholds for pre-settlement approval of a WCMSA. Most importantly, the updates did not change the well-established tenet that CMS pre-settlement approval of a WCMSA is voluntary. Rather, the updates simply made clear CMS’ position that evidence based or non-submit MSAs will be scrutinized for consistency with the methodology that CMS uses to evaluate WCMSAs that are voluntarily submitted. This should not come as a surprise, as CMS put considerable resources behind developing a methodology for WCMSA review, engaging review contractors, and promulgating its methods through memorandum, town hall teleconferences, webinars, a robust website, and the WCMSA Reference G.

 

Certainly, finding a primary payer that never disagreed with a CMS counter-higher WCMSA proposal would be akin to finding a unicorn. All primary payers can cite examples of CMS approved WCMSAs that include outlandish prescription medications, surgeries that will never take place and treatments extending a lifetime for claimants who will cease treatment shortly following settlement.  An evidence based/non-submit MSA is a permissible way for a primary payer to address those concerns, but not the only way. Depending on risk tolerance of the parties, CMS submission may still be preferred. Careful preparation of a WCMSA for submission to CMS, especially one prepared by counsel, includes implementation of legal strategies based on state specific workers’ compensation laws and treatment guidelines, and use of contrary medical evidence and/or litigation to effectively reduce prescriptions or treatment BEFORE submission to CMS. The resulting, palatable, CMS approved MSA effectuates settlement, as both the primary payer and the Medicare beneficiary/claimant can be secure in the knowledge that CMS has blessed their schism, evidenced by a CMS pre-settlement approval letter.

 

Practice Tip:  As always, parties should adequately consider Medicare’s interests, whether or not the settlement will qualify for voluntary submission to CMS for formal review.  The decision to participate in the voluntary submission process or use an evidence based or non-submit MSA should be made in consultation with counsel or other vendors who are well versed in Medicare compliance matters, and with full cooperation of the parties, on a case-by-case basis. 

References:

https://www.cms.gov/files/document/wcmsa-reference-guide-version-35.pdf

 

Stay tuned for more activity by your Medicare Compliance Committee - paperless conditional payments, forthcoming Section 111 reporting penalties, Medicare Advantage Plan Liens and more coming your way! Meet the members live in Nashville at the NWCDN national conference, where we will be presenting a Medicare Compliance update.  Please contact Nicole Graci of Hamberger & Weiss LLP (NY) or Daniel Hayes of Teague Campbell Dennis & Gorham, LLP (NC) for more information. 


 

On 3/16/22, our partner Matt Hoffman will present "The PPD Clawback Revisited - Understanding the 130 Week Retroactive Cap in 15(3)(w)". This webinar will provide an analysis of the April 2017 amendment to WCL § 15(3)(w) providing for a retroactive credit on capped benefits available under WCL §15(3)(w). This presentation will cover the permanent partial disability classification process, maximum medical improvement litigation, and best practices for carrier and defense counsel seeking to mitigate liability on permanent partial disability claims with a date of accident of 4/10/17 or later.

It will be held at 11:00 AM EST on Wednesday, March 16th 2020. Please click here to register.

You may also copy the link below and paste into your browser to register: https://www.compevent.com/webinars/index.php?event_web_access_code=63e50716395ebff11939e79cf54a81c4

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

We are pleased to announce that four of our attorneys: Matt Hoffman, John Land, Dave Marello, and Brian Schaedler have been elected as partners in the firm, effective January 1, 2022.

Matt has been practicing workers' compensation defense since he was admitted to New York Bar in 2014. He is expert in appellate practice and, notably, he successfully argued O'Donnell v Erie County, 35 N.Y.3d 14 (2020) before the New York Court of Appeals, reaffirming the obligation of partially disabled injured workers to demonstrate a nexus between their post-retirement reduction in earnings and their disability. Matt is also an adjunct professor at the University at Buffalo Law School where he teaches a course on appellate advocacy.

He is a member of the Erie County and New York State Bar Associations. Matt is resident in our Buffalo office.

John has also been practicing workers' compensation defense since his admission to the bar in 2015, following his graduation, summa cum laude, from the State University of New York at Buffalo Law School in 2014. While in law school, John won “Best Oralist” at the Midwest Super Regional Round of the Phillip C. Jessup International Law Moot Court Competition in February 2014. John's professional interests cover every aspect of workers' compensation claims from initial controversy to appellate court. He has also defended employers against illegal employment claims under WCL §120.

He is a member of the Erie County and New York State Bar Associations. John is resident in our Buffalo office.

Dave has been practicing law with Hamberger & Weiss LLP since his admission to the New York Bar in 2015. In addition to general workers' compensation litigation, Dave has developed a sub-specialty in representing our clients’ interests in third party actions before State Supreme Court and the Court of Claims. He also handles Loss Transfer arbitration hearings for our clients.

Dave is an Erie County native. Outside of the office, Dave enjoys playing sports and working on his golf game. He is a member of the Erie County Bar Association and is resident in our Buffalo office.

Brian is also a graduate of the State University of New York at Buffalo Law School, where he not only served as a Publications Editor on the Buffalo Law Review, but graduated in 2014 with the honor of three separate awards: the Robert J. Connelly Trial Technique Award, the American Bar Association and the Bureau of National Affairs Award for Excellence in the Study of Health Law, and the Harold A. Dautch Memorial Scholarship Award for Academic Excellence. Brian is an expert litigator and has successfully defended our clients throughout the thousands of hearings and depositions he has handled.

When not in hearings, Brian can be found at the gym, playing sports, or watching the Buffalo Bills or Sabres. Brian is a member of the New York State Bar Association and is resident in our Rochester office.
 

 

Bram Lehman Joins H&W LLP as Special Counsel 

 

We are pleased to welcome Bram Lehman to the firm, who joined us as Special Counsel in December 2021. Bram has more than 30 years of experience in New York workers’ compensation. He was most recently a partner in the firm of Bond, McDonald, & Lehman in Geneva, NY where he represented claimants for 20 years. Bram graduated cum laude from Syracuse Law School in 1991, where he was an editor of the Syracuse Law Review. He began his workers’ compensation career in 1993 at the Syracuse defense firm Mackenzie, Smith, Lewis, Michel, and Hughes, where he represented a wide range of carriers, third party administrators and self- insured employers.  He then became a partner at another Syracuse defense firm, Whyland & Richmond, LLP, where he practiced until 2000. Bram was a Geneva City Court Judge from 2007 until 2014. He is a member of the New York State Bar Association and is resident in our Rochester office.

 

Practice Tips Regarding the 130 Week PPD Credit/MMI "Safety Valve" Provision

 

In 2017 the workers’ compensation law was amended to allow carriers to take credit for temporary disability payments paid to a claimant beyond 130 weeks (2.5 years) from the date of accident or disablement against that claimant’s maximum benefit weeks from a permanent partial disability award under §15(3)(w). This rule applies to all injuries with dates of accident or disability after April 9, 2017. However, the credit only applies if there was no intervening finding that the claimant was not at maximum medical improvement (“MMI”). Now that we are well past 130 weeks from April 9, 2017, this provision has become increasingly relevant and we have encountered a few different issues we want our clients to be aware of. 

1)         The amendment applies as a matter of law:

Our firm maintains, and the Board thus far seems to agree, that the amendment applies as a matter of law.  In other words, there is no need for the carrier to specifically note its entitlement to the credit at the time classification is decided. We have seen some cases where the claimant's bar disputes this and alleges that the existence of a credit must have been raised at the time of permanency. We are unaware of any precedent in support of this position. Should you receive any ruling from the Board finding the carrier is not entitled to a credit against the cap on the basis that it was not raised at permanency, please let us know.   

2)         All weeks in which payments were made after 130 weeks from the date of accident/disablement count towards the credit

We have heard some argument that the carrier is only entitled to a credit after 130 weeks of payments have been made, rather than the credit applying for any benefits paid after 130 weeks have passed from the date of injury. We disagree with this argument. The statute states that whenever the carrier has provided compensation beyond 130 weeks from the date of accident, it gets a credit for those payment weeks. It says nothing about an obligation to have paid 130 weeks of compensation.  Furthermore, Board Subject Number 046-936 says “The reforms … provide a credit for periods of temporary disability that extend beyond 2.5 years (130 weeks) from the date of injury. Insurance carriers may receive a credit against the maximum benefits payable for permanent partial disability for any periods of temporary disability paid beyond the 2.5 years (130 weeks).”  This language makes no claim that 130 weeks of benefits must be paid for the credit to apply. 

Accordingly, should you receive any decision where a WCLJ finds you are not entitled to credit weeks on the basis that they did not begin to accrue until 130 weeks of temporary benefits had been paid, please let us know. 

3)         Avoid MMI litigation when the outcome is uncertain

To paraphrase Sun-Tzu, “never enter into any battle you have not already won.” As noted above, the credit for temporary benefits disappears if there is a no MMI determination before permanency is ultimately found. Thankfully, this provision is worded narrowly. For the credit to be forfeit, 1) permanency must be at issue; 2) the claimant must have produced medical evidence he is not at MMI; 3) the carrier must have had the chance to secure an opinion on the question; and 4) the Board must have decided that the claimant is not at MMI.  

Therefore, it is wise to avoid litigating the issue if it does not seem likely the carrier will prevail.  Better to accept the opinion of a claimant’s doctor that he is not at MMI for the time being, secure in the knowledge that the benefits you are paying now will ultimately act as a credit, rather than litigate and lose not only the issue of MMI, but the availability of the credit. In cases where the Board sets the matter down for permanency on its own motion, and there is an opinion from claimant's doctor that he is not at MMI, it may be prudent to consider accepting that opinion, unless there is some obvious factual or legal deficiency.  We can then argue that the credit was not forfeit on the basis that none of the latter three events occurred.

We anticipate that the claimant's bar may ultimately argue for such cases to be disqualified from the credit, but we are optimistic about our position given the language of the statute. 

 

Governor Hochul Signs Workers' Compensation Bills at end of 2021

 

A number of workers' compensation bills were signed into law by New York Governor Kathy Hochul to close out 2021. The first creates a schedule for attorney fees and removes much of the Board’s discretion regarding same. The new law adds subdivisions 2 and 3 to WCL §24 and provides that the Board “shall” approve fee applications “in an amount commensurate with the services rendered and the amount of compensation awarded, having due regard for the financial state of the claimant” in accordance with the following schedule:

(a) One third of a week’s compensation for continuing payments
(b) 15% of a retroactive award increase over prior payments
(c) 15% of SLU and SFD awards less prior payments
(d) 15% of PTD and PPD classification awards less prior payments, plus a sum equaling 15 weeks of the weekly rate
(e) 15% of Death awards less prior payments, plus 15 weeks at the weekly rate
(f) 15% of Section 32 Settlement award and waiver of any prior fees awarded but not accrued.

Despite stating that fees shall be "commensurate with services rendered," the amendment seems to indicate that the Board must award fees in accordance with this schedule, regardless of the amount of work the attorney performed. The fact that the language provides that the Board “shall” award in accordance with the schedule implies that the Board has little discretion on fees. The Governor’s signing memorandum references some technical changes to the law, which are now the subject of Senate Bill S7762, currently working its way through the legislature. This bill will push the effective date for the attorney fee schedule to 1/1/23. Additionally, the bill will require written fee applications for fees more than $1,000.00. Significantly, the bill states that benefits allocated towards future medical expenses in Section 32 agreement shall not be included in the calculation of the fee. Senate Bill S7762 has been passed by both the Senate and the Assembly. Thus, the bill will presumably be signed by the Governor in the near future.

The next bill, signed on 12/23/21, concerns the Uninsured Employers Fund (UEF) and adds a new subdivision 6-a to WCL §26-a. The new subdivision provides that in the event the Board is unable to identify the responsible insurance carrier for an employer within ten days of filing of a new claim, it shall “appoint” the UEF as the insurance carrier “until such time as the responsible insurance carrier is determined.” At the time she signed the bill, the Governor announced that she had reached an agreement with the legislature to amend the bill to allow thirty days from claim filing for appointment of the UEF as carrier. The amendment further provides that “Upon such appointment, the UEF shall immediately commence payments and provide medical care…” (emphasis added). It remains to be seen just how immediate the UEF’s payments will be. Arguably, this legislation denies the UEF the opportunity to controvert a claim on basic ANCR issues. The amendment takes effect sixty days after signing (February 20, 2022) and applies only to claims filed on and after that date.

The bill most applauded by attorneys, signed on 12/22/21, takes away the Board’s power to deny applications for Board review and Rebuttals to same based on technical defects in the RB–89 and RB–89.1 cover sheets. The bill adds a new Sec. 23-a to the WCL which provides that notwithstanding Board Rule 300.13(b) and Board Subject Nos. “a mistake, omission, defect and/or other irregularity in a coversheet accompanying” an Application for Board Review, Application for Full Board Review, or Rebuttal shall not be grounds for denial of such Application or Rebuttal. The Board is to “permit any such mistake, omission, defect and/or irregularity to be corrected within twenty days of written notice by the board” of same, or "if a substantial right of either the party filing the application or party filing the rebuttal is not prejudiced, such mistake, omission, defect and/or irregularity shall be disregarded.”
WCL §23-a takes effect immediately but does not apply to previously denied Applications or Rebuttals.

Other bills signed near the end of 2021 include S.1022-A, which added a new WCL §17-a to the statute, requiring the Board to translate all documents and forms used by or issued to injured employees in the 10 most common non-English languages spoken in New York State. The new law also requires the Board to provide interpretation services to injured employees and to publish a "language access plan" as well as a point a "language access coordinator." The new law is effective 3/22/22.

Finally, in October 2021, the Governor signed the "Nigro Act" named for Anthony Nigro, a bus mechanic who died in 2012 of lung cancer from exposure to diesel exhaust. This law creates a new WCL §16-a that provides a one time, one year opportunity to file a death benefit claim for any cancer due to exposure to diesel exhaust that otherwise would be disallowed by the timely claim filing or timely notice defenses. The one-year window begins on 10/29/21 and ends on 10/28/22.

Please contact our partner Ron Weiss with any questions about the above legislation.

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

H&W New York Workers' Compensation Defense Newsletter
Vol. 6, Issue 1

Hamberger & Weiss LLP Celebrates 30 Years! 

July 1, 2021 marked our firm’s 30th anniversary. At our founding in 1991, we were eight attorneys. Over three decades we, along with our partner clients, have been witness to enormous changes in the New York Workers’ Compensation system, including the 1996 reforms with the adoption of Section 32 Settlements, the creation of e-Case in 1999, the Medicare Set-Aside issues which arose in 2001, the 2007 Reform Legislation with durational caps on PPD benefits and the Rocket Docket, the closure of the Second Injury and Stale Claims Funds and, most recently, the implementation of the Virtual Hearing system which allowed for nearly uninterrupted adjudication of claims during the COVID-19 pandemic.

Over these thirty years we have worked side-by-side with you, our valued clients, to navigate through all of these changes and opportunities. In the process our firm has grown to forty attorneys, representing our clients at hearings statewide through the Virtual Hearing system, as well as the related work of 32s, MSAs, Conditional Payment resolutions and Loss Transfer arbitrations.

It has been our privilege to serve you for all these years, and we look forward to continuing our relationships for the next 30 years! 

Board Requires Affidavit of No Separate Agreements with Section 32s

Earlier this month, the Board announced a new policy, effective 12/6/21, that will require the person signing a Section 32 agreement on behalf of a carrier/self-insured employer or third-party administrator to also sign an affidavit attesting that there are no separate agreements between the parties not reflected in the Section 32 agreement and that the claimant was not required, as a condition to entering into the Section 32 agreement, to enter into a separate agreement or contract in the future. The Board is concerned about employers that require claimants to sign a separate release of liability or other contract, the terms of which are not included in the Section 32 agreement submitted to the Board. The Board’s stated reason for the Board’s concern is that it is not able to determine whether a Section 32 agreement is “unfair, unconscionable, improper as a matter of law or was the result of an intentional misrepresentation of material fact” if all of the terms and conditions between the parties are not written in the Section 32 settlement agreement. 

One important issue overlooked by the Board is that, generally, Section 32 settlement agreements are signed by the carrier, third-party administrator, or defense counsel for one of those entities. The agreements that the Board is concerned with are between the employer and the claimant. This will, in most cases, put the person who has historically signed the agreement, usually an adjuster or attorney for the carrier, to have to attest under the penalty of perjury to the non-existence of an agreement between the claimant and the employer even though that adjuster or attorney might not be aware of such an agreement. We submit that the claimant would have direct knowledge as to any side agreement and the ability to affirm that  no such side agreements exist beyond those cited in the Section 32. As of this moment, however, the Board has not adopted a form affidavit for signature by the claimant to so attest. 

The Board said that it would not approve any Section 32 agreement conditioned upon the claimant signing a separate agreement or contract that contains terms which are not included in the Section 32 agreement submitted to the Board. That said, the Board noted that a Section 32 agreement which included terms providing that a claimant would release an employer from liability would not necessarily be invalid. However, the Board would give “significant scrutiny” to such terms due to what the Board called the “disparity in bargaining power and financial resources between individual claimants and insurance carriers/self-insured employers.” The Board previously used such language in prohibiting provisions of a Section 32 agreement that require the claimant to indemnify and hold the carrier harmless for any payment made by Medicare for treatment of claimant’s work-related injuries prior to the execution of the Section 32 Waiver Agreement.  SeeSubject Number 046-372 (3/2/2020).

Although the Board appears to be allowing employers and carriers to include release language in the Section 32 agreement (notwithstanding the Board’s extra scrutiny of such language), it remains to be seen whether the Board will allow or require separate contracts to be appended to the Section 32 agreement as an exhibit. Our expectation is that the Board will not allow this as the Board’s announcement was written with the intent of curtailing such language by allowing release language only within the Section 32 agreement and, even then, giving strict scrutiny to such language when included. 

Employers that wish to continue to use side agreements and general releases in conjunction with Section 32 settlement will need to be prepared to have the language of these agreements reviewed by the Board and consider whether they will be willing to proceed with a Section 32 agreement in the event that the Board invalidates the release language as “unfair, unconscionable, improper as a matter of law.” 

Additionally, coordination with the claimant's attorney before the Section 32 hearing will be needed in order to prepare the claimant to answer the Law Judge’s questions about any side agreements. If the claimant testifies that he or she understands the side agreement, wants the Section 32 agreement to be approved, and believes the overall deal is fair, we think that it would be difficult for a Law Judge to find the agreement unfair or unconscionable. The Law Judge's refusal to approve a Section 32 agreement despite such testimony may provide a good basis for an appeal.

Please do not hesitate to contact any of our attorneys with questions about this new policy.

Court of Appeals Denies Motion for Leave to Appeal in Quigley - Medical Marijuana Permitted in New York Comp

On 9/14/21, the Court of Appeals denied the carrier’s motion for leave to appeal the Appellate Division’s 2/25/21 decision in Quigley v. Village of East Aurora. Recall that the Quigley case affirms authorization and use of medical marijuana for treatment of injuries in the New York Workers’ Compensation system. The Appellate Division had held that Federal law classifying marijuana as a Schedule 1 controlled substance did not inherently preempt New York State legislation regarding the prescription and use of medical marijuana. It also held that reimbursing a claimant for out-of-pocket costs associated with purchasing medical marijuana legally prescribed under New York State law is unlikely to be considered aiding or abetting Federal controlled substance crimes. Furthermore, the Appellate Division ruled that authorization and use of medical marijuana in the New York Workers’ Compensation system does not conflict with other New York State legislative provisions outside the Workers' Compensation Law stating that insurance carriers are not responsible for payment for medical marijuana. The Court distinguished those other legislative provisions outside the Workers Compensation Law, because Section 13 of the Workers' Compensation Law explicitly states that workers' compensation insurance carriers are liable for essentially all forms of causally related medical treatment arising from a compensable injury.

Given the Court’s refusal to hear the case, the Appellate Division’s decision in Quigley is controlling. Medical marijuana is permitted in the New York Workers’ Compensation system, subject the Board’s rules and regulations. 

Court of Appeals Grants Motion for Leave in Case Allowing PPD Benefits After Death

On 9/24/21, the Court of Appeals granted the employer leave to appeal the Appellate Division’s decision in Green v. Dutchess County BOCES, which we reported on back in March 2020. Our readers will recall that the Green decision found that when a claimant with a capped permanent partial disability (“PPD”) dies for reasons unrelated to established injuries, any remaining weeks on the PPD cap are payable to the deceased claimant’s surviving relatives enumerated in WCL §15(4). The employer’s initial motion for leave to appeal to the Court earlier this year was dismissed

We continue to believe that this decision is wrongly decided and fails to apply long-standing precedent requiring causally related lost time / lost wages as a prerequisite to permanent partial disability awards. In light of the pending appeal before the Court of Appeals, we recommend that carriers and employers continue to object to such awards. None of our firm’s pending appeals on this issue have been decided by the Board, which we presume is awaiting a decision from the Court of Appeals before resolving the pending appeals. 

Changes in WAMO Section 32 Procedure

The Board’s Waiver Agreement Management Office (“WAMO”) has advised of changes regarding WAMO settlements. Future Section 32 agreements involving established WCL Section 15(8)(d) claims will be processed by the Special Funds Group.  Settlements will be paid by the carrier or self-insured employer to claimants, then reimbursed by the Special Funds Group, rather than paid to claimants directly from WAMO.  

The Board has not issued a formal announcement on this as of this writing. Presently, the Board website simply states, “WAMO Section 32 process is being revised.”  We were advised of the change by an attorney in the Board’s Special Funds Group / Waiver Agreement Management Office. We await further guidance from the Board, as the change is likely to affect the WAMO application process and the format of WAMO settlement agreements. 

Reminder - Board Allows Direct Deposit of Indemnity and Death Benefits

As of July 1, 2021, injured workers and those persons entitled to a death benefit will have the right to have indemnity payments directly deposited into at least two bank accounts.  The Board adopted a new direct deposit regulation, 12 NYCRR 300.26, which requires carriers, self-insured employers, third party administrators and Special Funds, including the UEF, to make direct deposit available to all injured workers or persons entitled to a death benefit pursuant to an Election Form to be prescribed by the Board. The Board also requires that a one-time Notice be provided to all such persons. Neither the Election Form nor the specific format of the Notice are published to date, but the requirements of both are delineated in the new regulation. Carriers/SIEs/TPAs may use the current Direct Deposit and Debit Card Authorization Form (DD-1) already available and may include whatever additional elements they find appropriate, as long as the regulation requirements are met.  

While we recommend detailed review of the regulation, of note are the following: 

  • The one-time Notice and Election Form must be provided to the injured worker or person entitled to a death benefit within 14 days of the submission of a FROI.  
  • The new regulation applies to ongoing awards directed prior to 7/1/21 as well as those directed thereafter. If the FROI was due prior to 7/1/21, then the Notice and Election Form will be due with or before the next SROI is due or submitted after 7/1/21. 
  • The Notice must be published on the carrier, SIE or TPA’s website, along with instructions for submission of the Election Form.  
  • The carrier, SIE, TPA or Special Fund may set a minimum amount for direct deposit into a single account, not to exceed $20 per biweekly payment. 
  • The Notice and Election Form are not required for payments to injured workers or persons entitled to death benefits in lieu of workers’ compensation benefits, schedule loss of use awards, Section 32 settlement proceeds, or awards made without direction to continue payments. 

Should you have any questions about this issue, please do not hesitate to contact our partner Susan Parzymieso at 716-852-5200 or sparzymieso@hwcomp.com.

Contact Us

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

H&W New York Workers' Compensation Defense Newsletter

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Board Permits Carriers to Raise Labor Market Attachment on 8/16/21

 

Yesterday, on June 28, 2021,  the Board provided updated guidance on the labor market attachment issue. In its announcement, the Board acknowledged the expiration of Executive Order 202, which declared the COVID-19 State of Emergency in New York, and announced that it would permit carriers, employers, and other payers to raise the issue of Labor Market Attachment beginning on August 16, 2021

 

The Board does not explain its reasoning for delaying the ability of carriers to raise the labor market attachment issue for another seven weeks. We assume that the delay is designed to place claimants on notice of the return of the labor market attachment defense so that they have an opportunity begin a job search or engage in other labor market attachment activities before August 16th. 

 

We note again,  as we did last week, that the Board no longer has any legal basis to suspend the well-established requirement for partially disabled claimants to demonstrate labor market attachment. That said, we fully expect that Law Judges throughout the State will abide by the Board’s August 16th directive and not allow carriers to raise the labor market attachment defense before that date. Accordingly, carriers and employers will need to decide whether it is cost effective to pursue the issue before August 16th given the likelihood of an unsuccessful outcome before the Law Judge, necessitating an appeal to a Board Panel, who will likely affirm the Law Judge. 

 

The Board also notes that claimants “will be required” to demonstrate labor market attachment efforts that are “appropriate given the confines of the remaining restrictions of the State of Emergency.” The announcement also notes that a claimant may not refuse employment solely because it requires in-person attendance at work, so long as the employer is “in compliance with all Executive Orders governing business operations in the state.” Finally, the Board’s announcement allows Law Judges to “take into account the special circumstances each claimant faces” in determining issues relating to labor market attachment cases. 

 

These additional elements may complicate labor market attachment cases with development of the record on issues concerning any COVID-19 restrictions in place at the time of the claimant’s job search, whether the businesses the claimant applied to were in compliance with all Executive Orders, and the broad “special circumstances” of each claimant. 

 

Please do not hesitate to contact any of  our attorneys for assistance with this issue.

 

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