CMS Expands WCMSA Re-Review Process to Allow Submission of New Evidence
Traditionally, the submission of a WCMSA to CMS was a one-shot affair. Once the parties received a WCMSA approval letter from CMS, the set-aside amount indicated in the letter was not subject to re-review unless CMS made an obvious mistake of fact or evidence that pre-dated the original submission that was not included in that submission was discovered. Except for these narrow circumstances, CMS would not consider newly submitted evidence in a request for re-review of a previously determined WCMSA.
With the publication of its latest WCMASP User Guide, Version 5.1 (7/10/17), CMS has expanded its re-review process to include what it callsAmended Review. This will allow the parties to a workers' compensation settlement to submit new medical evidence to CMS, even after receipt of the WCMSA approval letter from CMS, subject to certain limitations described below. Why would someone want to do this? Amended review would allow the parties to apply for a lower WCMSA than that approved by CMS if new medical evidence supported the request. For example, if CMS included lifetime use of opioid medication in its WCMSA approval letter, but subsequent to the issuance of the approval letter the claimant weaned from the prior medications, the parties can submit medical evidence showing the successful weaning and apply to CMS for approval of a lower set-aside amount.
Amended Review is not without its limitations, however. Cases subject to Amended Review are subject to the following parameters:
1) The original submission of the WCMSA for pre-settlement approval was submitted 1 to 4 years from the date of the requested re-review;
2) Only one Amended Review request can be made per case. If Amended Review is denied, another cannot be requested; and
3) The new proposed WCMSA must differ from the original approved WCMSA amount by 10% or $10,000, whichever is greater.
The Amended Review process will allow parties to reconsider settlement of claims previously thought too expensive to settle due to a high WCMSA approved by CMS, assuming medical evidence exists to support the request for a lower WCMSA. For assistance in reviewing a case for potential Amended Review by CMS or for an initial WCMSA submission to CMS, please do not hesitate to contact one of our Statewide MSA/Section 32 Department leaders, Dan Bowers, Joe DeCoursey, or Nicole Graci.
Board Clarifies Law on Attachment to Labor Market, Provides New Forms in July 2017 Subject Number
Subject Number 046-958 provides an outline of the Board’s current interpretation of the state-of-the-law on labor market attachment. The Subject Number leads by noting that the "only significant recent change" in the Workers' Compensation Law with respect to labor market attachment arose from Part NNN of Chapter 59, Laws of 2017, Subpart A, which among other things amended WCL Section 15(3)(w) to eliminate the need for claimants found entitled to benefits at the time of classification to demonstrate ongoing attachment to the labor market. The Board is careful to note that temporarily partially disabled claimants and those claimantsnot attached to the labor (or otherwise not entitled to benefits) at the time of classification remain obligated to demonstrate their attachment to the labor market.
The Subject Number reminds readers that claimants can demonstrate labor market attachment by adhering to the now familiar American Axle standard that has been the state of the law since 2010. The Board recognizes that many job applications are completed online via email or internet submission and permits modification of the American Axle standard under the Suffolk County Health Services case to allow for this. Most importantly, the Subject Number warns claimants that an independent job search must be "timely, diligent, and persistent." Moreover, a claimant engaged in other attachment to the labor market efforts such as use of a One-Stop career center must provide documentation showing the claimant's "active participation" in these efforts.
To assist claimants in documenting their attachment to the labor market efforts, the Board has issued a revised C-258 form and introduced a new form, the C-258.1. The C-258 form now allows claimants to enter information about other attachment efforts such as participation at a One-Stop career center, rehabilitation or retraining efforts, and attendance at an accredited educational institution. Claimants seeking to prove labor market attachment through an independent job search are directed to use the new C-258.1 form, which provides more direction and space for claimants to produce the information required by theAmerican Axle decision in detailing their independent job search efforts.
The Board also provides a reminder in the Subject Number that although a claimant found entitled to benefits at the time of classification need not produce proof of attachment to the labor market, there can remain a question as to whether the claimant's disability was the reason why the claimant ceased full-time work. In citing to theLauner and Smith cases, the Board is suggesting that employers and carriers look carefully at the reasons for a claimant's reduction in earnings before accepting reduced earnings awards. However, the claimants inSmith and Launer were done in by their own testimony, which may prove difficult to obtain given the Board's stinginess with re-openings on classified claims.
The Board’s comments here should also serve as a reminder that although a claimant found entitled to benefits at the time of classification need not demonstrate ongoing labor market attachment, we believe that the defense of voluntary withdrawal from the labor market remains available for employers and carriers to pursue. We would recommend reading our article from our May 2017 newsletter for recommendations on how to pursue the voluntary withdrawal defense after classification. In short, employers and carriers will need to compile evidence not unlike that which was used in the past to seek a re-opening of claims following classification such as questionnaires sent to the claimant asking if the claimant was looking for work, offers of vocational services, job leads sent to the claimant, and the results of follow up on those leads.
We believe that the Subject Number will prove useful in day-to-day litigation on labor market attachment issues in temporary disability cases. This Subject Number is in alignment with the position we have been taking since theAmerican Axle decision regarding claimant's requirements for proving labor market attachment and will provide a further point of authority to direct WCLJs and the claimant's bar in arguments over labor market attachment.
If you have any questions about the defense of labor market attachment or interpretation of this Subject Number, please do not hesitate to contact any ofour attorneys.
Appellate Division Rules that Section 15(3)(v) Awards Subject to Same Cap on Benefits as 15(3)(w) Awards
On 6/29/17, the Appellate Division, Third Department, decided Mancini v. Office of Children and Family Services. This decision is notable for two reasons. First, the court explicitly held that payments under WCL §15(3)(v) are subject to the statutory cap on awards set forth in WCL §15(3)(w). A loss of wage earning capacity (LWEC) finding must be made by the Board, as in classification cases, to set the length of the capped awards. Second, the court affirmed a finding by the Board that the cap on §15(3)(v) awards does not begin until the date when the Board makes a LWEC finding, rather than the date on which claimant’s schedule loss of use award allocation ends.
For context, WCL §15(3)(v) allows claimants with a greater than 50% schedule loss of use award for certain injuries to request additional payments after the schedule loss of use award allocation expires. Claimants seeking §15(3)(v) awards must prove compliance with various criteria. The language of §15(3)(v) specifically references WCL §15(3)(w) for payment of the additional benefits. For quite some time, our office has taken the position that this means benefits under WCL §15(3)(v) should be capped, and the Court has now confirmed this.
The two takeaways from this decision are that WCL §15(3)(v) awards are subject to the statutory caps in WCL §15(3)(w), and the cap on awards begins effective the date of the loss of wage earning capacity finding by the Board once a claimant makes a successful §15(3)(v) claim.
WCB Chairman Munnelly Announces His Retirement
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