State News : New York

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New York


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H&W New York Workers' Compensation Defense Newsletter

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Board Continues “New” SLU Guidelines Rollout with New Forms, Training


The Board continues its implementation of its 2018 Impairment Guidelines with Subject No. 046-1067, in which the Board provides new forms that both attending physicians and Independent Medical Examiners are required to use effective immediately in providing opinions on schedule loss of use (SLU). We believe that the required forms continue the Board’s tradition of legislating through forms, but with respect to the SLU issue are generally favorable to the employer and carrier community because they force examiners to perform some actions suggested in the 2018 Guidelines, such as measuring the contralateral extremity.
The employer and carrier community should take careful note of the Board’s new requirements for IME forms. According to Subject No. 046-1067, an IME evaluator must fill out not only the IME form cover sheet, but provide the appropriate listed attachments for either an SLU evaluation or a non-schedule PPD evaluation along with the evaluator’s narrative report. All three elements (IME-4, permanency attachment, and narrative) are required for a complete IME report. The IME-4 attachments (“A” for SLU evaluation,“B” for classification evaluation) essentially mirror their attending physician counterparts, discussed below.
TheIME-4 form also has been changed to require the evaluator to indicate the start time of the patient’s examination, the end time of the examination, and the total time spent by the evaluator reviewing records. The IME evaluator should take care to make sure that all sections of the IME form and any appropriate attachments are filled out when completing an IME report. An IME-4 cover sheet with narrative is no longer sufficient.
Thenew C-4.3 form now has two required attachments. The first, Attachment A, is to be completed by an attending physician conducting an SLU evaluation. Of note, the attachment indicates that the examining physician should provide three measurements for range of motion, compare range of motion to the contralateral extremity, and requires specific notation of the applicable special consideration, if any.
Attachment B of the new C-4.3 form is relevant to non-schedule classifiable cases and is largely unchanged from Section F of the old C–4.3 form. The new attachment does, however, contain additional space for describing the claimant’s work status, and more detail in consideration of the claimant’s functional capabilities and exertional abilities.
Earlier this month, the Board offered training on the new SLU guidelines and the new forms required. Although the webinar series is over, a recording is available and parties can review theBoard’s PowerPoint presentation on the Board’s website here.


Board Clarifies §15(8) Reimbursement Process Following Board Panel Decisions inExpress Solutions and Southco


Our readers will recall our article last month discussing the Express Solutions and Southco Board Panel decisions which not only established the Board’s jurisdiction for determining §15(8) reimbursement issues, but also set out the appropriate procedure for payors to follow in obtaining reimbursement for qualifying expenses under §15(8). The Board has clarified the procedure discussed inExpress Solutions and provided new forms for requesting reimbursement inSubject No. 046-1063, issued earlier this month.
Beginning 6/1/18, employers and carriers (payors) must use the new forms to seek reimbursement under WCL §15(8). They are:

The Subject Number also clarifies some ambiguities in the procedure detailed in theExpress Solutions decision. Specifically, it notes that an employer or carrier disputing a reduction in a reimbursement request can submit a request for reconsideration on the C-251.6 form via email within 60 days of the date marked on the Special Funds Group’s response (Form C-251R or C-251.1R). At that point, “senior SFG staff not integral to the original review” will review the reimbursement request and any additional documentation submitted and then email a response to the employer or carrier with the “final determination” of the SFG regarding the reimbursement request.
If the employer or carrier disputes the reconsideration made by SFG, it may file an RFA–2 within 30 days of the date marked on the reconsideration form. The SFG response must be attached to the RFA–2. For now, until the Board modifies Form RFA-2, employers and carriers are instructed to use the box marked “other” and state that the purpose of the request is “Desk review of SFG Decision Form C-251.6R”). Clearly, the Board is trying to avoid hearings before a WCLJ for consideration of these review requests.
Subject No. 046-1063 also details a new procedure for formalizing the establishment of §15(8) liability in cases where a §15(8) claim is pending but has not yet been found to apply. We suspect that there are not many cases left in the system where this new procedure will be applicable, given the closure of the §15(8) fund to new claims nearly 10 years ago. Nevertheless, in such cases, the Board requires the requesting carrier to email a document of no greater than one page specifying eCase Document ID numbers for all documents in the Board eCase file submitted prior to 7/1/2010 that support the carrier’s request for §15(8) relief, along with a “no more than one sentence description” of how each document cited from the electronic Case folder meets each essential element of §15(8) relief (e.g., “Timely Submitted Form C-250”; “M&S Statement”; etc.).
Upon receipt of the document, the SFG will either advise the payor of its voluntary acceptance of §15(8) liability or request a hearing.


Board Virtual Hearings Live in Multiple Districts; Major Changes for Parties Requesting Hearing Record


The rollout process for the Board’s new virtual hearing system continues.  Virtual hearings are live in the Capital, Binghamton, Brooklyn, Syracuse, and Rochester Districts of the Board as of mid-April, and will come to the Buffalo District on 6/13/18.  The virtual hearing system has had its share of growing pains. We expect future tweaks and improvements as the rollout continues. As our attorneys and clients become accustomed to this new hearing process, we offer the following tips:

  1. Hearing transcripts can no longer be requested or obtained directly from Board employed court reporters because virtual hearings are audio recorded without a live reporter.  In appropriate cases our office will arrange to have the recordings transcribed by an outside reporter for use in preparing legal briefs or ongoing litigation.  These transcripts will not be official hearing records, but are useful nonetheless in cases involving testimony or complicated legal issues for, among other things, preparation of Memoranda of Law requested by WCLJs and cross-examination of witnesses at later trial hearings.
  2. The virtual hearing process makes “picking up” a hearing without notice from the carrier/employer difficult because our attorneys no longer have access to the Board’s master list of hearings on calendar for a given day.  As such, extra care must be taken to ensure our office receives timely notice of any hearings that clients wish for us to handle.


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Buffalo, NY 14202

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Rochester, NY 14614


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