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


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CMS Pricing for Generic Lyrica (Pregabalin) Now Under $1.00 per Pill


Pregabalin, the generic form of Lyrica, has dropped in price enough that its inclusion in a WCMSA is no longer a barrier to settlement. Our readers will recallthat we reported last year that CMS accepted the off-label use of Lyrica for pain or radiculopathy. At the time Lyrica was very expensive and a generic form of the drug was not available. That changed early this year with the availability of pregabalin, the generic form of Lyrica. However, at the time pregabalin became available, it cost nearly the same as Lyrica, and its inclusion in a WCMSA remained a barrier to settlement.

In the last month, the CMS pricing for pregabalin has dropped from over $8.00 per pill to under $1.00 per pill. In most cases, this means that inclusion of pregabalin should not be a barrier to settlement and we should be able to secure reasonable WCMSA approvals even when CMS includes this drug in the claimant’s WCMSA approval.

The Board’s new Drug Formulary permits use of Lyrica as a “Phase B” medication for use either upon acceptance or establishment of the claim or after 30 days from the date of injury. The Formulary lists Lyrica as a “second line” medication for injuries involving the back, CRPS, neck, or for treatment under the Non-Acute Pain Medical Treatment Guidelines. This means that the claimant must have an unsuccessful trial of a first line medication under the Medical Treatment Guidelines before trying Lyrica.

For any questions concerning the Drug Formulary, please contact our partner, Renee Heitger. For questions concerning the effect of pregabalin on a WCMSA please contact our partner Dan Bowers.


Some SLU Stipulations Require Additional Paperwork


Over the last year, practitioners have noted the Board’s resistance to stipulations concerning schedule loss of use where non-schedule body parts were also established on a claim, absent a provision in the stipulation that there were no residual deficits or further causally related disability connected with the non-schedule injury or condition. This marked a change in prior Board practice which generally allowed stipulations on schedule loss of use even where there were non-schedule body sites established on the claim.

In Subject Number 046-1211, the Board has outlined its expectations with respect to stipulations on schedule loss of use where a non-schedule site is established on the claim. The Subject Number describes a new form, the “SLU Stipulation Attachment,” which is to be used by parties stipulating to schedule loss of use where the claimant’s non-schedule injury may have residual permanent impairment or where the medical evidence says nothing about whether the claimant has a permanent disability of the non-schedule injury.

If the medical reports in the file say that the claimant does not have a permanent disability of the non-schedule injury, then the parties do not need to submit the SLU Stipulation Attachment with their stipulation.

In those cases where the medical evidence suggests a permanent disability of a non-schedule body part we expect the Board will carefully review the claimant’s answers to Question 5 on the SLU Stipulation Attachment, which asks the claimant to confirm that the claimant’s doctor doesn’t believe that the non-schedule injury affects the claimant’s ability to work, that there has been no surgery or post-surgical care involving the non-schedule body part(s) for the last 12 months, and that the claimant has not treated for the non-schedule body part(s) for the last six months. We suspect that the claimant’s answers to these questions will affect the Board’s decision to approve or deny the proposed stipulation.

The stipulation attachment also requires the claimant’s attorney to attest that he or she fully explained the impact of the proposed stipulation on the claimant’s non-schedule injuries, including the effect of the carrier’s credit on future indemnity related to the non-schedule injuries and any difficulties in reopening the claim to consider a worsening of non-schedule body parts.
Significantly, the SLU Stipulation Attachment states that if the Board approves the stipulation on schedule loss of use, that the Board will also enter a finding of “no further causally related disability at this time” with respect to the non-schedule sites or conditions. A finding of “no further causally related disability” is a powerful one for the carrier because it allows the carrier to force the claimant to provide proof of a change in condition before becoming liable for medical care or indemnity benefits.

We expect that the Board will deny stipulations for schedule loss of use in those cases where it feels that the claimant was not fully informed of the ramifications of agreeing to a SLU when that claimant also has non-schedule injuries.

Please do not hesitate to contact any of our attorneys with questions about the Board’s new SLU stipulation procedure.


Appellate Division Cases of Note


Volunteer Workers: Mauro v. American Red Cross

On 10/3/19, the Appellate Division, Third Department, decided Mauro v. American Red Cross. This decision holds that a person is not an employee of a charitable organization when he or she merely volunteers time working at that organization.

The claimant volunteered time for the American Red Cross as a “volunteer community ambassador.” The Red Cross is a non-profit charitable organization. After her injury, the claimant filed a claim, alleging she met the legal requirements to be considered an employee of the American Red Cross for workers’ compensation purposes. The claimant was an employee of another company, which encouraged volunteerism with charitable organizations. She received full salary from that employer while doing charitable work for the American Red Cross during work hours. The Court highlighted the fact that claimant received no monetary compensation or other form of financial or economic benefit from the American Red Cross in exchange for her volunteer activity. Based on these facts, the Court affirmed the Board’s finding that claimant was strictly a volunteer rather than an employee of the American Red Cross.

OD Claims: Barker v. New York City Police Department

On 10/3/19, the Appellate Division, Third Department, decided Barker v. New York City Police Department. This decision again shows that an occupational disease claim for repetitive use will not automatically be established simply because a treating doctor states the claimed injury is causally related to claimant’s work activities.

In this case, claimant alleged a repetitive overuse injury to her arms. The Board disallowed the claim, and the Court affirmed, stating “the record does not reflect that claimant’s medical providers had adequate knowledge of her work activities or medical history . . . consequently, neither claimant’s testimony nor the medical evidence was sufficient to establish a recognizable link between her shoulder injuries and a distinctive feature of her work, or that her shoulder injuries were attributable to repetitive movements associated with her work.”

This decision serves as a reminder that the defense of occupational disease claims merits special attention to confirm that claimant has met the legal requirements needed to establish an occupational disease, which include, among other things, proof of a “recognizable link” between the claimant’s alleged occupation disease and his or her employment. The claimant cannot establish this link if the evidence from the claimant’s medical providers fails to show adequate knowledge of the claimant’s job duties or medical history.


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