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


  (716) 852-0003

We are pleased to announce that four of our attorneys: Matt Hoffman, John Land, Dave Marello, and Brian Schaedler have been elected as partners in the firm, effective January 1, 2022.

Matt has been practicing workers' compensation defense since he was admitted to New York Bar in 2014. He is expert in appellate practice and, notably, he successfully argued O'Donnell v Erie County, 35 N.Y.3d 14 (2020) before the New York Court of Appeals, reaffirming the obligation of partially disabled injured workers to demonstrate a nexus between their post-retirement reduction in earnings and their disability. Matt is also an adjunct professor at the University at Buffalo Law School where he teaches a course on appellate advocacy.

He is a member of the Erie County and New York State Bar Associations. Matt is resident in our Buffalo office.

John has also been practicing workers' compensation defense since his admission to the bar in 2015, following his graduation, summa cum laude, from the State University of New York at Buffalo Law School in 2014. While in law school, John won “Best Oralist” at the Midwest Super Regional Round of the Phillip C. Jessup International Law Moot Court Competition in February 2014. John's professional interests cover every aspect of workers' compensation claims from initial controversy to appellate court. He has also defended employers against illegal employment claims under WCL §120.

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

Dave has been practicing law with Hamberger & Weiss LLP since his admission to the New York Bar in 2015. In addition to general workers' compensation litigation, Dave has developed a sub-specialty in representing our clients’ interests in third party actions before State Supreme Court and the Court of Claims. He also handles Loss Transfer arbitration hearings for our clients.

Dave is an Erie County native. Outside of the office, Dave enjoys playing sports and working on his golf game. He is a member of the Erie County Bar Association and is resident in our Buffalo office.

Brian is also a graduate of the State University of New York at Buffalo Law School, where he not only served as a Publications Editor on the Buffalo Law Review, but graduated in 2014 with the honor of three separate awards: the Robert J. Connelly Trial Technique Award, the American Bar Association and the Bureau of National Affairs Award for Excellence in the Study of Health Law, and the Harold A. Dautch Memorial Scholarship Award for Academic Excellence. Brian is an expert litigator and has successfully defended our clients throughout the thousands of hearings and depositions he has handled.

When not in hearings, Brian can be found at the gym, playing sports, or watching the Buffalo Bills or Sabres. Brian is a member of the New York State Bar Association and is resident in our Rochester office.


Bram Lehman Joins H&W LLP as Special Counsel 


We are pleased to welcome Bram Lehman to the firm, who joined us as Special Counsel in December 2021. Bram has more than 30 years of experience in New York workers’ compensation. He was most recently a partner in the firm of Bond, McDonald, & Lehman in Geneva, NY where he represented claimants for 20 years. Bram graduated cum laude from Syracuse Law School in 1991, where he was an editor of the Syracuse Law Review. He began his workers’ compensation career in 1993 at the Syracuse defense firm Mackenzie, Smith, Lewis, Michel, and Hughes, where he represented a wide range of carriers, third party administrators and self- insured employers.  He then became a partner at another Syracuse defense firm, Whyland & Richmond, LLP, where he practiced until 2000. Bram was a Geneva City Court Judge from 2007 until 2014. He is a member of the New York State Bar Association and is resident in our Rochester office.


Practice Tips Regarding the 130 Week PPD Credit/MMI "Safety Valve" Provision


In 2017 the workers’ compensation law was amended to allow 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 maximum benefit weeks from a permanent partial disability award under §15(3)(w). This rule applies to all injuries with dates of accident or disability after April 9, 2017. However, the credit only applies if there was no intervening finding that the claimant was not at maximum medical improvement (“MMI”). Now that we are well past 130 weeks from April 9, 2017, this provision has become increasingly relevant and we have encountered a few different issues we want our clients to be aware of. 

1)         The amendment applies as a matter of law:

Our firm maintains, and the Board thus far seems to agree, that the amendment applies as a matter of law.  In other words, there is no need for the carrier to specifically note its entitlement to the credit at the time classification is decided. We have seen some cases where the claimant's bar disputes this and alleges that the existence of a credit must have been raised at the time of permanency. We are unaware of any precedent in support of this position. Should you receive any ruling from the Board finding the carrier is not entitled to a credit against the cap on the basis that it was not raised at permanency, please let us know.   

2)         All weeks in which payments were made after 130 weeks from the date of accident/disablement count towards the credit

We have heard some argument that the carrier is only entitled to a credit after 130 weeks of payments have been made, rather than the credit applying for any benefits paid after 130 weeks have passed from the date of injury. We disagree with this argument. The statute states that whenever the carrier has provided compensation beyond 130 weeks from the date of accident, it gets a credit for those payment weeks. It says nothing about an obligation to have paid 130 weeks of compensation.  Furthermore, Board Subject Number 046-936 says “The reforms … provide a credit for periods of temporary disability that extend beyond 2.5 years (130 weeks) from the date of injury. Insurance carriers may receive a credit against the maximum benefits payable for permanent partial disability for any periods of temporary disability paid beyond the 2.5 years (130 weeks).”  This language makes no claim that 130 weeks of benefits must be paid for the credit to apply. 

Accordingly, should you receive any decision where a WCLJ finds you are not entitled to credit weeks on the basis that they did not begin to accrue until 130 weeks of temporary benefits had been paid, please let us know. 

3)         Avoid MMI litigation when the outcome is uncertain

To paraphrase Sun-Tzu, “never enter into any battle you have not already won.” As noted above, the credit for temporary benefits disappears if there is a no MMI determination before permanency is ultimately found. Thankfully, this provision is worded narrowly. For the credit to be forfeit, 1) permanency must be at issue; 2) the claimant must have produced medical evidence he is not at MMI; 3) the carrier must have had the chance to secure an opinion on the question; and 4) the Board must have decided that the claimant is not at MMI.  

Therefore, it is wise to avoid litigating the issue if it does not seem likely the carrier will prevail.  Better to accept the opinion of a claimant’s doctor that he is not at MMI for the time being, secure in the knowledge that the benefits you are paying now will ultimately act as a credit, rather than litigate and lose not only the issue of MMI, but the availability of the credit. In cases where the Board sets the matter down for permanency on its own motion, and there is an opinion from claimant's doctor that he is not at MMI, it may be prudent to consider accepting that opinion, unless there is some obvious factual or legal deficiency.  We can then argue that the credit was not forfeit on the basis that none of the latter three events occurred.

We anticipate that the claimant's bar may ultimately argue for such cases to be disqualified from the credit, but we are optimistic about our position given the language of the statute. 


Governor Hochul Signs Workers' Compensation Bills at end of 2021


A number of workers' compensation bills were signed into law by New York Governor Kathy Hochul to close out 2021. The first creates a schedule for attorney fees and removes much of the Board’s discretion regarding same. The new law adds subdivisions 2 and 3 to WCL §24 and provides that the Board “shall” approve fee applications “in an amount commensurate with the services rendered and the amount of compensation awarded, having due regard for the financial state of the claimant” in accordance with the following schedule:

(a) One third of a week’s compensation for continuing payments
(b) 15% of a retroactive award increase over prior payments
(c) 15% of SLU and SFD awards less prior payments
(d) 15% of PTD and PPD classification awards less prior payments, plus a sum equaling 15 weeks of the weekly rate
(e) 15% of Death awards less prior payments, plus 15 weeks at the weekly rate
(f) 15% of Section 32 Settlement award and waiver of any prior fees awarded but not accrued.

Despite stating that fees shall be "commensurate with services rendered," the amendment seems to indicate that the Board must award fees in accordance with this schedule, regardless of the amount of work the attorney performed. The fact that the language provides that the Board “shall” award in accordance with the schedule implies that the Board has little discretion on fees. The Governor’s signing memorandum references some technical changes to the law, which are now the subject of Senate Bill S7762, currently working its way through the legislature. This bill will push the effective date for the attorney fee schedule to 1/1/23. Additionally, the bill will require written fee applications for fees more than $1,000.00. Significantly, the bill states that benefits allocated towards future medical expenses in Section 32 agreement shall not be included in the calculation of the fee. Senate Bill S7762 has been passed by both the Senate and the Assembly. Thus, the bill will presumably be signed by the Governor in the near future.

The next bill, signed on 12/23/21, concerns the Uninsured Employers Fund (UEF) and adds a new subdivision 6-a to WCL §26-a. The new subdivision provides that in the event the Board is unable to identify the responsible insurance carrier for an employer within ten days of filing of a new claim, it shall “appoint” the UEF as the insurance carrier “until such time as the responsible insurance carrier is determined.” At the time she signed the bill, the Governor announced that she had reached an agreement with the legislature to amend the bill to allow thirty days from claim filing for appointment of the UEF as carrier. The amendment further provides that “Upon such appointment, the UEF shall immediately commence payments and provide medical care…” (emphasis added). It remains to be seen just how immediate the UEF’s payments will be. Arguably, this legislation denies the UEF the opportunity to controvert a claim on basic ANCR issues. The amendment takes effect sixty days after signing (February 20, 2022) and applies only to claims filed on and after that date.

The bill most applauded by attorneys, signed on 12/22/21, takes away the Board’s power to deny applications for Board review and Rebuttals to same based on technical defects in the RB–89 and RB–89.1 cover sheets. The bill adds a new Sec. 23-a to the WCL which provides that notwithstanding Board Rule 300.13(b) and Board Subject Nos. “a mistake, omission, defect and/or other irregularity in a coversheet accompanying” an Application for Board Review, Application for Full Board Review, or Rebuttal shall not be grounds for denial of such Application or Rebuttal. The Board is to “permit any such mistake, omission, defect and/or irregularity to be corrected within twenty days of written notice by the board” of same, or "if a substantial right of either the party filing the application or party filing the rebuttal is not prejudiced, such mistake, omission, defect and/or irregularity shall be disregarded.”
WCL §23-a takes effect immediately but does not apply to previously denied Applications or Rebuttals.

Other bills signed near the end of 2021 include S.1022-A, which added a new WCL §17-a to the statute, requiring the Board to translate all documents and forms used by or issued to injured employees in the 10 most common non-English languages spoken in New York State. The new law also requires the Board to provide interpretation services to injured employees and to publish a "language access plan" as well as a point a "language access coordinator." The new law is effective 3/22/22.

Finally, in October 2021, the Governor signed the "Nigro Act" named for Anthony Nigro, a bus mechanic who died in 2012 of lung cancer from exposure to diesel exhaust. This law creates a new WCL §16-a that provides a one time, one year opportunity to file a death benefit claim for any cancer due to exposure to diesel exhaust that otherwise would be disallowed by the timely claim filing or timely notice defenses. The one-year window begins on 10/29/21 and ends on 10/28/22.

Please contact our partner Ron Weiss with any questions about the above legislation.


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Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614