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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.
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Court
Decision Affirms that Physicians Must Have Sufficient Knowledge of
Claimant’s Work Activities in Occupational Disease Claims
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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.
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H&W
LLP Conditional Payments Team Saves Clients Over $1,000,000 in 2022
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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.
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NY WCL
Reference Sheet Available Online
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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.
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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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