State News : New York

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New York


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H&W New York Workers' Compensation Defense Newsletter
Vol. 5, Issue 3

11/4/20 Webinar from H&W LLP: The PPD Clawback - Understanding the 130 Week Retroactive Cap in 15(3)(w)

On November 4th, our associate Matt Hoffman will present "The PPD Clawback - Understanding the 130 Week Retroactive Cap in 15(3)(w)". This webinar will provide an analysis of the April 2017 amendment to WCL § 15(3)(w) providing for a retroactive credit on capped benefits available under WCL §15(3)(w). This presentation will cover the permanent partial disability classification process, maximum medical improvement litigation, and best practices for carrier and defense counsel seeking to mitigate liability on permanent partial disability claims with a date of accident of 4/10/17 or later.

It will be held at 11:00 AM EST on Wednesday, November 4th 2020. Please click here to register.

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

WCB Pushes COVID-19 Claims Forward Despite Lack of PFME

There is increasing evidence over the last few months that Board policy is shifting to make it easier for claimants to move controverted COVID-19 claims to trial. Last month, Board Chair Clarissa Rodriguez sent a letter to carriers and claims administrators asking them to assist the Board by providing medical evidence necessary to move controverted COVID claims forward for adjudication. The request was surprising, given the role of carriers and administrators in controverted claims traditionally does not include assisting the claimant in producing the medical evidence needed to establish a claim. 

Additionally, the Board produced a video in which it provided claimants information about the evidence that they needed to successfully make a workers' compensation claim based on COVID-19. The video correctly states that claimants need a medical report from an authorized provider stating that the claimant's work caused the illness. However, that standard is not being enforced at the Board. 

We have noticed in our hearings that Judges are moving COVID cases to trial even in the absence of prima facie medical evidence ("PFME"). Our research also indicates that the Board is permitting COVID cases to move to trial without PFME. For example, in American Airlines, 2020 WL 5591103 (N.Y.Work.Comp. G2810516; 9/11/20), the Board found a death certificate, standing alone, to be PFME for a COVID claimed death, on the basis that Board regulations did not require an opinion on causal relationship. The Board ignored its own requirement that the medical report reference an injury, which was missing in the death certificate. 

Recall that the Board's standard for prima facie medical evidence is a "medical report referencing an injury." 12 NYCRR §300.1(a)(9). Also, although PFME is sufficient to move a case to trial, PFME that only references an injury without a clear statement of causal relationship to work will not support the establishment of a claim. 

Based on the above, we conclude that the Board has an unstated policy that COVID-19 cases are going to proceed to trial, even in the absence of sufficient medical evidence. As before, an appeal regarding PFME is interlocutory, meaning that an appeal of a Judge's decision cannot be taken until the Judge provides a final decision on the controverted claim. 

That said, some of our clients (particularly health care providers or insurance carriers for health care providers) have elected to accept COVID-19 claims without prejudice under WCL §21-a when a claimant tests positive for COVID-19, even in the absence of PFME. This decision is based on the employer's or carrier's judgment that the claimant was likely exposed to COVID-19 in the workplace based on the nature of the claimant's job. 

Employers and carriers, as always, should consider the facts in each case individually. Our comments on the apparent Board policy should not be read as advice to deny all COVID-19 claims in the absence of PFME. 

Dr. Eugene Gosy Sentenced to 70 Months in Prison

Notorious Western New York pain management physician Dr. Eugene Gosy was sentenced to 70 months in prison by a Federal District Court Judge last week. Dr Gosy was accused of unlawfully prescribing narcotics and other controlled substances. He was first charged in a 114-count indictment in 2016. He accepted a plea deal in January admitting to conspiracy of unlawfully distributing controlled substances and health care fraud. He admitted to, among other things, prescribing painkillers to his own employees and his patients without properly evaluating them and knowingly giving medicine to patients who were misusing the drugs. 

Shortly after his guilty plea, the Board removed him from its list of authorized treating providers. Dr. Gosy was well-known in workers' compensation circles. A legal database search for his name reveals over 500 decisions that he was involved in that reached the Board Review level. The opioid crisis contributed to in part by Dr. Gosy and others like him led to significant reforms from the Board concerning prescription medications, most significantly the Prescription Drug Formulary introduced in the 2017 workers' compensation reform package.

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