Board Rules that Medical Treatment Guidelines Apply to Out-of-State Treatment
In Hospice, Inc. (WCB Case No. 5951 3410, 5/24/17), a Board Panel ruled that the New York State Medical Treatment Guidelines (“MTGs”) apply to treatment rendered to a claimant residing out-of-state by an out-of-state provider. This represents a significant departure by the Board from its prior decisions on this issue.
The claimant in Hospice lived in Nevada and sought treatment from a Nevada provider. The carrier filed a C-8.1B to the bill for this treatment, arguing that the treatment provided was not based upon a correct application of the MTGs because the provider billed for medications not approved under the MTGs. The WCLJ found the C-8.1B in favor of the provider and the carrier filed an Application for Board Review.
The Board reversed and ruled in the carrier’s favor, noting that even though it previously held that a nonresident claimant seeking treatment out-of-state was not bound by the MTGs, it was now disavowing and departing from such prior Board Panel decisions and ruling that the MTGs apply regardless of where or by whom the treatment is rendered. The Board’s decision was based on its reading of the Court of Appeals decision inKigin v. State of New York Worker’s Compensation Board, 24 N.Y.3d 459 (2014).
The Board also held that the variance process applies to out-of-state providers but that out-of-state providers are not required to use the Board’s forms (i.e, MG-1, MG-2 and C-4AUTH). Use of the forms is preferred but not a basis to deny treatment.
Board Issues New C-240: Employer’s Statement of Wage Earnings Form
On 6/19/17, the Board issued Subject Number 046-949, which introduced a substantially revisedC-240 form (Employer’s Statement of Wage Earnings) to the workers’ compensation community. The Subject Number provided additional guidance regarding the phrase “a substantial part of the year” in determining whether a similar worker payroll should be used. Significantly, the Subject Number and new C-240 form suggest that it is now permissible for an employer to attach payroll information in lieu of completing the payroll tables on the second page of the form.
Appellate Division Clarifies Calculation of End Date of Carrier’s “Holiday” Credit in Third-Party Action Cases
On 6/1/17, the Appellate Division, Third Department, decided Lala v. Site Works Contracting Corp. At issue was how the end date for a carrier’s third-party action holiday should be calculated for cases involvingBurns payments for the carrier’s equitably apportioned share of the third-party action litigation expenses.
The claimant inLala settled his third-party action for $100,000.00 on 3/11/11. He received a net recovery of $64,541.51. The Board awarded him $500.00 per week for indemnity. Of that amount, 35.46% ($177.30 per week) constituted the carrier’sBurns payment, with the remaining $322.70 directly credited to the third-party action holiday.
The Board held that the credit expired on 8/20/13. In calculating this date, the WCLJ used the $322.70 portion of the carrier’ credit and also the $177.30 Burns payment, meaning the full $500.00 per week was deducted from the $64,541.51 credit. On appeal to the Appellate Division, the carrier argued that only its $322.70 per week share should be deducted from the credit and that the $177.30 per week Burns payment should not be deducted from the credit. If this method were used, its credit would not expire until 1/6/15. The claimant and the Board argued that the full $500.00 per week should be deducted from the credit when calculating the exhaustion date.
Citing Kelly v. State Insurance Fund, Burns v. Varriale, and Stenson v. New York State Department of Transportation, the Appellate Division held that in the absence of a specific provision to the contrary in the carrier’s settlement consent letter, the appropriate manner for calculating the credit exhaustion is to include both the amount ofBurns payment and the carrier’s share of the awards in the weekly deductions from the net third-party action recovery when indemnity awards are payable to the claimant. In other words, the appropriate deduction from the carrier’s credit was $500.00 per week, not $322.70 per week. The Court explained that under the Court of Appeals precedent governing equitable apportionment of third-party action litigation expenses, the carrier’s share of litigation expenses is based on the total benefit derived from the third-party action recovery. Because Burns payments are a pay-as-you-go method of repaying the claimant’s third-party action litigation expenses, allowing the carrier to deduct only its weekly share of the net recovery from the amount of the third-party action credit would create a double recovery to the carrier because the Burns payments are supposed to reimburse the claimant for the costs incurred in obtaining the third-party action recovery.
The Appellate Division’s use of the phrase “in the absence of a specific provision to the contrary” should serve as a reminder to all parties of the importance of careful drafting of consent letters to third-party settlements due to the scrutiny given to them by the Board and the Courts.
Appellate Division Allows Claimant to Receive Two 100% SLU Awards for the Same Injury
On 5/25/17, the Appellate Division, Third Department decided Deck v. Dorr, holding that a claimant can receive a 100% schedule loss of use award for the thumb and a separate 100% schedule loss of use award for the same hand at the same time as long as there are distinct separate injuries to the thumb and the rest of claimant’s fingers.
Claimant lost all four fingers when his hand became stuck in a meat grinder. The grinder also amputated his thumb, but doctors were able to reattach a portion of the thumb to his hand. The thumb was half the size of claimant’s thumb on the opposite hand and had no pinching ability. The parties stipulated to a 100% schedule loss of use award for the hand based on claimant’s loss of all four fingers, and litigated claimant’s eligibility for a separate 100% schedule loss of use award for the thumb. Uncontradicted medical testimony stated that the Disability Guidelines allow for more than 100% loss of use for a hand under certain circumstances. The Board awarded claimant the 100% loss of use for his hand and a separate 100% loss of use for the thumb, stating that claimant sustained distinct injuries to his four fingers and his thumb, and that the separate injuries had differing impacts on the functionality of his hand. Based on this, the Board concluded that distinct loss of use awards for the four fingers (which translates into a 100% loss of use of the hand), and the thumb was appropriate.
On appeal, the carrier argued that the injuries to the fingers and thumb should be subsumed into a 100% schedule loss of use for the hand with no additional award. The Court disagreed, citing precedent from the New York State Court of Appeals, New York’s highest appellate court, and Appellate Division precedent holding that when a claimant has multiple injuries to different parts of the hand, the schedule loss of use award is not limited to 100% of the hand. The Court highlighted the fact that the Disability Guidelines treat the fingers and thumbs separately for schedule loss of use award analysis. The Court also highlighted the uncontradicted medical testimony that the Guidelines contemplate a greater than 100% loss of use for the hand under certain circumstances.
The take-away from the case is that when a claimant has multiple injuries to different parts of a hand, separate schedule loss of use awards can be awarded for those distinct injuries.
Hamberger & Weiss - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
Hamberger & Weiss - Rochester Office
1 South Washington Street
Rochester, NY 14614