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


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Hamberger & Weiss Seminars Are Here!


Our annual workers’ compensation seminars are scheduled for 4/10/18 in Buffalo at Samuel’s Grande Manor and 4/24/18 in Syracuse at the Holiday Inn – Syracuse/Liverpool. This year, we will discuss: 

  • The practical effects of the 2017 workers' compensation reforms on permanent partial disability cases  
  • Defenses to the Board’s payor compliance program  
  • The “new” SLU guidelines  
  • The Board’s new pharmacy formulary and medical marijuana  
  • The Medicare conditional payment recovery process  
  • Major court decisions over the past year. 

If you have not yet registered, please contact Heidi Mahoney at to do so. We look forward to seeing you! 


Board Begins IME Study


The Workers’ Compensation Board is beginning its study of IME’s mandated by the 2017 legislation, which requires the Board to study IME utilization and submit a report to the Advisory Committee by early 2019. As a result, the Board is reaching out to stakeholders seeking input on concerns regarding IME exams, including quality, cost, potential fraud, as well as alternative methods for utilization/assignment of IME’s and practices followed in other states. Our partner, Susan R. Duffy, was invited by the Workers’ Compensation Board as the New York State Bar Association Defense Attorney Representative, along with claimant’s counsel, William Crossett, to participate in the information gathering phase. Susan participated in a conference call with Board participants on March 21, 2018 to discuss concerns from the defense perspective and will be submitting expanded written comments. Preserving the rights of employers and carriers in the selection and utilization of IME’s, and limiting Board involvement, is critically important in protecting your rights in defending claims, so we are appreciative of the opportunity to provide our input and expertise.

Please do not hesitate to contact Susan at with any comments or questions about the IME study.


Board Panel Allows Consideration of Apportionment Between Two Work Related Injuries Before Permanency


For several years, the Board has generally refused to consider apportionment during the period of temporary disability, even between two work related injuries. In 2010, the Full Board stated in Byram Hills CSD, 2010 N.Y.Work.Comp. G0070823 (12/31/10) that "there is no basis for apportionment of a temporary disability, and the issue of apportionment should be deferred until a finding of permanency has been made." Since that decision, Board Panels and Law Judges have generally deferred consideration of apportionment until permanency. 

In a 3/23/18 decision, Hamburg Central School, 2018 N.Y.Work.Comp. G1342161 (3/23/18), a Board Panel stepped away from this rule, finding that "apportionment does not need to wait for a finding of MMI" between two work related injuries. In that case, the claimant had two compensable right knee injuries. The first one occurred on 3/8/04 and the claimant was eventually awarded a schedule loss of use on that file. His doctor eventually found that he had no impairment and he returned to work full time, full duty.  

The claimant suffered a second injury on 10/8/15 and the new carrier argued that the second injury was merely an aggravation of the prior injury and that following a brief period of temporary disability, there should have been a finding of no further causally related disability against the new file. In the alternative, the new carrier argued that apportionment applied and that no more than 10% of liability should be assessed against it. The claimant and the earlier carrier argued that the injury of 10/8/15 was a new injury and that consideration of apportionment was premature until permanency. The Law Judge agreed and assessed awards solely against the new carrier. The Board Panel reversed, noting the power given to it by the Courts to resolve the factual issue of apportionment. It returned the case to the Law Judge for development of the record on the issue of apportionment.  

The precedential value of this case is limited because it is a Board Panel decision but it may prove useful for employers and carrier in negotiating or litigating reduced liability through apportionment to an earlier work-related injury.  

Congratulations to our partner Melanie Wojcik, who litigated the case before the Law Judge and wrote the successful Application for Board Review.


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350 Main Street
Buffalo, NY 14202

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1 South Washington Street
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Rochester, NY 14614