We here at Hamberger & Weiss LLP wish you a Happy New Year and hope that you have a pleasant and prosperous 2020!
Welcome to Lynn Forth, who Joins H&W as Special Counsel
We are pleased to announce that Lynn A. Forth (who many of you know) has joined us as Special Counsel in our Rochester office. Lynn brings over 25 years of experience in workers’ compensation defense to Hamberger & Weiss LLP. Lynn was selected as one of the “Top Women in Law” by The Daily Record in 2018 by virtue of her experience, litigation skills, and her mentoring of young women in the Rochester community. She is a frequent speaker and presenter at workers’ compensation seminars throughout the state. We are thrilled that Lynn has joined us and know that our clients will be as well.
Please feel free to contact Lynn at 585-262-6397 or via email firstname.lastname@example.org.
Appellate Division Overrules Board’s 8-Page Limit on Appeals
On 12/12/19, the Appellate Division, Third Department, decided Daniels v. City of Rochester and Casamento v. Rochester Genesee Regional Transit Authority. These two significant decisions strike down the portion of the Board’s regulation requiring submission of an explanation for administrative appeal and rebuttal briefs exceeding 8 pages. These decisions are a breath of fresh air to both claimant and defense attorneys, who have long been vexed by the Board’s random application of this rule to dismiss administrative appeals and rebuttals. The 15 page outer limit to administrative appeal briefs and rebuttals remains in effect.
The relevant portion of Rule 300.13(b)(1)(i), states: “unless otherwise specified by the chair, the appellant may attach a legal brief of up to 8 pages in length, …. A brief longer than 8 pages will not be considered, unless the appellant specifies, in writing, why the legal argument could not have been made within 8 pages. In no event shall a brief longer than 15 pages be considered.”
The court’s decisions inDaniels and Casamento hold that the Board failed to define a standard for how it would apply the page limit requirement, and that the initial limitation of briefs to 8 pages is unreasonable, arbitrary, and capricious, because there is no procedure for getting pre-authorization to file a brief exceeding 8 pages before the brief is actually filed with the Board. As such, it is impossible for counsel to know if their explanation will be accepted by the Board until it is too late. The court also held that the plain language of the regulation does not permit the Board to dismiss an appeal merely because the brief exceeds the page limits in the regulation.
It remains to be seen whether the Board will seek leave to appeal to the Court of Appeals.
Congratulations to our partner,Steve Wyder, who prepared the successful appeals to the Appellate Division.
First Cases Subject to 130 Week Temporary Partial Disability Credit Now Approaching Permanency
One of the major changes to WCL §15(3)(w) enacted by the 2017 workers’ compensation reform package was a provision allowing 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 eventual permanent partial disability award. Insurance carriers can get a credit for payment of temporary disability benefits paid beyond 130 weeks from the date on injury against the maximum benefit weeks that would be payable for permanent partial disability under §15(3)(w). This rule applies to all injuries with dates of accident or disability after April 9, 2017.
As of this writing, more than 130 weeks have elapsed since 4/9/17, thus carriers and employers should keep an eye on cases in which permanency has not been determined to see if they can avail themselves of the credit.
Although there are a number of interpretations floating around concerning the exercise of the credit, keep in mind that the Board’s interpretation is the one noted above, which is the most favorable interpretation for carriers and employers. This interpretation allows an insurance carrier or employer to apply the credit against capped PPD benefits for any temporary disability benefits paid—whether partial or total—beyond 130 weeks from the date of injury. It is not necessary that 130 week of benefits be paid before the credit is taken.
Lower Settlement Costs Possible With Oxycodone-Acetaminophen Price Drop
Our readers familiar with workers’ compensation Medicare Set-Aside Arrangements (WCMSAs) know that certain medications can result in sky-high WCMSAs. Certain opioid medications carried per-pill prices of over $3.00, leading to cases that could not settle until the claimant was weaned from the expensive medications. One common opioid, oxycodone-acetaminophen (10-325mg) had a Medicare price of $3.37/pill, but now is priced by Medicare at only $0.78/pill.
The reduction in the price of this common opioid medication should allow settlement of cases previously unable to settle due to high medical costs. We recommend that our clients review their claims to find cases that were previously unable to settle due to the claimant’s use of oxycodone-acetaminophen and see if the WCMSA can be recalculated based on the new pricing.
For any questions about how this reduction in CMS pricing can benefit your cases, please contact our partner,Dan Bowers.
Board Notes Process Change for Objections to Administrative and Proposed Decisions Effective 2/1/2020
The Board announced a process change regarding objections to Administrative Decisions (ADs) and Proposed Decisions (PDs) that will become effective 2/1/2020. As of that date, any party wishing to object to an AD or PD must state their objection to the decision in the space provided on the AD or PD that is the subject of the objection. Additionally, the objecting party must note the WCB case number on the objection.
The objecting party is not limited to the space on the form. If additional pages are necessary, they can be attached to the form. However, the objection must start on the form provided on the AD or PD in question. We recommend that those objecting to an AD or PD, list the basic reason on the form along with the WCB case number and then expand as needed with additional pages.
The Board advises that the reason for the process change is that when the objection is not noted in the designated area of the AD or PD, it can be misrouted, leading to errors and delays.
Please do not hesitate to contact any of ourattorneys for questions about the new AD or PD objection process.
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