State News : New York

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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.

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New York


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H&W New York Workers' Compensation Defense Newsletter
Vol. 5, Issue 4

Happy New Year!

All of us at Hamberger & Weiss LLP wish our readers a very Happy New Year! In this month's newsletter, we sadly say farewell to one of our founding partners but happily welcome two new partners. 2020 was a challenging year but thankfully, with the continued confidence of our clients, the hard work of our attorneys, and the dedication of our staff, we persevered.

With news of effective COVID-19 vaccines, we can imagine post-pandemic world where we can see our clients and friends face-to-face again. We sincerely wish that 2021 is a healthy and prosperous year for every one of you.

Farewell to Peter Kaplan

After over 30 years of zealously representing our clients, Peter Kaplan, one of our founding partners, has retired effective 12/31/20. Now freed from RFA-2 hearings and fraud trials, Peter will have more time to spend with his wife Eleanor in their Atlanta, Georgia home.

Peter was instrumental in the rapid growth of the firm following its creation. His relationships and industry contacts introduced many to Hamberger & Weiss LLP who are now valued clients of the firm. His adversaries in the claimants' bar knew him as an aggressive, tenacious litigator, as well as a premier fraud litigator in the defense bar.

In our office, however, we knew Peter as a mentor and a friend, who always had his door open to help his colleagues work through a difficult case, develop a business idea for the firm, or just to drink espresso and talk about current events.

Although the claimants' bar may be happy to learn of his retirement, we here at Hamberger & Weiss LLP will miss Peter greatly. Without him, we would not be the firm we are today. Congratulations, Peter, on an amazing career!

Kelly Ochs-Hepworth and John Coyle Elected to Partnership

We are pleased to announce that Kelly Ochs-Hepworth and John Coyle have been elected as partners in the firm, effective January 1, 2021.

Kelly has been practicing workers' compensation defense since she was admitted to New York Bar in 2013. She has developed a sub-specialty in fraud litigation and social-media investigations. A zealous litigator, expert in trial preparation and practice, Kelly is known as a formidable adversary of the claimants' bar.

She is a member of the Monroe County Bar Association and is resident in our Rochester office.

John has been practicing workers' compensation defense since his admission to the bar in 2004. He joined the firm after law school. After three years with us, he left to work in-house for a workers' compensation insurance carrier. He also worked representing claimants and the Special Funds Conservation Committee. After gaining this valuable experience, John returned to the firm in 2015 and has been with us ever since. Drawing on his wide range of experiences, he can offer unique insight into the litigation process, having practiced from both sides of the table. 

John is a member of the New York State and Cattaraugus County Bar Associations, as well as the Bar Association of Erie County. He is resident in our Buffalo office.

1/13/20 Webinar from H&W LLP: The New New York Medical Treatment Guidelines, Reviewed

On January 13th, our partner Renee Heitger will present "The New New York Medical Treatment Guidelines, Reviewed". This webinar will review the newest Medical Treatment Guidelines from the Workers’ Compensation Board. The new guidelines are effective 1/1/21 and include hand, wrist, and forearm injuries, which replace the carpal tunnel syndrome guidelines. Also discussed are the new occupational/work-related asthma guidelines.

It will be held at 1:00 PM EST on Wednesday, January 13th, 2021. Please click here to register.

You may also copy the link below and paste into your browser to register:

Appellate Division Clarifies Taher Holding Regarding Claimants Receiving Both SLU and PPD

On 12/24/20, the Appellate Division, Third Department decided Nasir v. BJ's Wholesale Club. This decision holds that the court's earlier decision in Taher v. Yiota Taxi does not compel the Board to award both a schedule loss of use award and a permanent partial disability classification in the same case if the Board rejects the medical evidence supporting one of these forms of permanent disability on credibility grounds.

As most of our readers know, Taher held that a claimant can receive both a schedule loss of use award and a permanent partial disability classification in the same case at the same time so long as the claimant has not received an initial award under the classification. Before Taher, a claimant could receive either a schedule loss of use award or a permanent partial disability classification, but not at the same time in the same case. Taher and its progeny have significantly changed the analysis of claims at permanency.

The Nasir decision clarifies that a claimant may receive both forms of permanency awards only if the Board finds the medical opinions supporting both forms of permanent disability credible. The Board may use its inherent fact-finding power to reject one or more of the permanent disability medical opinions as lacking credibility. If the Board rejects a medical opinion on permanent disability as lacking credibility, then the form of permanent disability in that medical opinion will not be awarded. In cases where the Board finds the medical opinions supporting both forms of permanent disability credible, both forms of permanent disability may still be established.

This decision allows employers and carriers another avenue to attack SLU opinions in a case resolved with classification by, for example, arguing that the opinion on SLU is not credible enough for the Board's consideration.

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Buffalo, NY 14202

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