H&W New York Workers' Compensation Defense Newsletter

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H&W New York Workers' Compensation Defense Newsletter
Vol. 3, Issue 2

• Full Board Reverses Panel Decision That Provided Exception to Delta Airlines Attachment Decision
• Still No Word on Pharmacy Formulary
• Contact Us

One year ago we reported on the Board Panel decision in Barbella Environmental Tech, which provided an exception to theDelta Airlines ruling on labor market attachment. The ruling deemed claimants who were still employed by the employer of record to be attached to the labor market without the need to produce proof of same as required by theAmerican Axle decision. The Barbella Board Panel decision narrowed the ruling in cases like Delta Airlines, finding that only in cases where there is objective medical evidence that the claimant could return to work with the employer of record and where the claimant has a realistic expectation to return to work with the employer is the claimant relieved of the need to prove labor market attachment.

The Full Board reviewed the Barbella decision earlier this year and reversed the Board Panel decision inBarbella. The Full Board decided not to adopt the two-pronged test created by theBarbella panel’s majority and unfortunately affirmed the rule that a claimant has not voluntarily withdrawn from the labor market where the claimant continues to be employed by the employer and the medical evidence in the record establishes that a claimant is unable to return to work.This decision will make it more difficult to defend against indemnity benefits in claims where a claimant remains “on the books” with the employer of record.

At the end of last year, the Board announced draft regulations for a proposed New York State Pharmacy Formulary. WCL §13-p, which became law in April 2017, required the Board to "establish a comprehensive prescription drug formulary on or before" 12/31/17. To date, we have only seen a draft formulary and the proposed rules published in December 2017.In February 2018, we published an extensive white paper with our summary and analysis of the proposed formulary and regulations. Among other things, we believed that the proposed pharmacy formulary would result in lower costs for employers and carriers.

The proposed formulary was supposed to become effective 7/1/18, but our review of the State Register shows that the proposed regulations were never finalized. The Board has been silent regarding the formulary and seemingly is violating its statutory requirement to “establish a comprehensive prescription drug formulary on or before” 12/31/17. WCL §13-p.

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