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 1

Upcoming Webinars from Hamberger & Weiss LLP: 8/20/20 and 8/31/20

COVID-19 has halted the 2020 workers' compensation conference circuit and created a greater need for educational content to address the unique issues in workers' compensation caused by the pandemic. Hamberger & Weiss LLP, in partnership with the National Workers' Compensation Defense Network("NWCDN") and has planned a number of webinars to provide quality defense advice to the workers' compensation community during the pandemic.
On August 20th, our partner Mary Kay Laforce, will present “At-Home Injuries and Your Rights Regarding IMEs during the COVID-19 Crisis”. This webinar will discuss the compensability of injuries occurring when the claimant is working from home. This presentation will also discuss carrier/employer rights and responsibilities in the COVID-19 environment.

It will be held at 11:00 AM EST on Thursday, August 20th. Please click here to register.

You may also copy the link below and paste into your browser to register:
On August 31st, our partner Stephen Wyder, will present “The Terrible Horrible No Good Very Bad Day: a.k.a How to Kick the Corona Blues”. This webinar will discuss tactics and strategies for working through claim defense difficulties created by the coronavirus pandemic.

It will be held at 11:00 AM EST on Thursday, August 31st. Please click here to register.

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

H&W Selected by Board for Section 32 Pilot Project

The Board has selected Hamberger & Weiss LLP to participate in a "self-calendaring" project for Section 32 agreements. The pilot project will allow our clients to know the exact date of the Section 32 hearing and allow for the speedier resolution of cases awaiting settlement. 

Under the pilot project, the Board will provide a settlement day in the future. Hamberger & Weiss LLP will then aggregate claims with signed Section 32 agreements and provide that list of claims to the Board, who will place those cases on the Section 32 calendar on the settlement date. To get the cases on the selected Section 32 calendar date, we will need to provide the Board with signed agreements on each case no later than 20 days before the settlement date. The Board will allow a minimum of seven and a maximum of 24 claims in each district on each settlement day. 

The Board expects that these hearings will be held virtually and requires that agreements submitted under the project to note that the claimant will retain a hard copy of the agreement for reference during the Section 32 settlement hearing. 

We encourage our clients with pending Section 32 settlements to contact Nicole Graci for further details about this pilot project. 

Appellate Division Maintains Genduso Rule Regarding SLU Credit in Recent Decision

On 7/23/20, the Appellate Division, Third Department, decided Kleban v. Central New York Psychiatric Center. This decision again affirms the Appellate Division's decision in Genduso v. New York City Dep't. of Education, which held that a claimant’s schedule loss of use award will be subject to an automatic deduction for previous schedule loss of use awards to the same limb (hand, foot, arm, leg, etc.). This decision also holds that schedule loss of use awards are made only for the specific body members enumerated in the statute (WCL §15(3)(a) through (l)). This means that a claimant cannot receive separate schedule loss of use awards for sub-parts of the same body member, such as the knee and hip of the same leg. In cases where multiple sub-parts of the same body member are injured, the schedule loss of use award must be calculated only for the body member as a whole. That schedule loss of use award then is subject to an automatic deduction for any previous schedule loss of use awards to the same body member.

The court's decision in Kleban follows similar decisions in Johnson v. City of New York, and Bell v. Glens Falls Ready Mix Co., Inc.

The Appellate Division's continued affirmation of the principle in Genduso shows that despite the protests of the claimants' bar to the contrary, that the Genduso decision was not an anomaly. Employers and carriers should take care to investigate the existence of any prior schedule awards when considering permanency so as to avail themselves of any available credit. This is particularly important given the continued increase in the maximum compensation rate each year. 

Our partner Stephen Wyder successfully prepared the brief to the Appellate Division in Kleban. Anyone with questions about the Genduso line of cases should feel free to contact Mr. Wyder. 

Court Allows Further Deduction on SLU Award for Attorney Fee Previously Paid from Employer Reimbursement 

On 6/4/20, the Appellate Division, Third Department decided Razzano v. New York State Dep't. Of Corrections and Community Supervision, holding that the Board correctly deducted the full amount of an attorney fee from a claimant's schedule loss of use award. The claimant in Razzano injured his left shoulder while closing a door at work. He missed work because of his injury but continued to receive his full wages. After he filed a workers’ compensation claim, the employer filed a claim for reimbursement of the wages it had paid him.

A workers’ compensation law judge ("WCLJ") awarded the claimant lost time but deducted the amounts already paid by the employer. The WCLJ also awarded the claimant's attorney a fee of $2,050 as a lien on the credit to the employer.

The WCLJ later awarded the claimant a 42% schedule loss of use ("SLU"), less the payments already made by the department and an additional attorney fee. The employer's workers' compensation insurance carrier deducted an additional $2,050 from the SLU award, representing the attorney fee paid from the initial lost time awarded. 

The claimant contended that he was underpaid because the initial attorney fee of $2,050 was improperly deducted from the SLU award. The WCLJ agreed and imposed a penalty on the carrier.

On review, the Board reversed, finding that that the employer was entitled to full reimbursement of the advanced wages without any reduction for the attorney fees. The Board directed that the amount be paid from the SLU award. On appeal, the Appellate Division affirmed. 

“Here, the initial $2,050 award of counsel fees was a lien on the employer's reimbursement credit, which was limited to the temporary total disability and temporary partial disability payments being received by claimant — the total of which was insufficient to cover both the counsel fees and reimbursement to the employer,” the court explained. “Once claimant received the SLU award, there were sufficient funds to satisfy the employer's right to reimbursement, leaving claimant with an excess from which counsel fees could be paid.”

Given the Board’s broad discretion over attorney fees, the court said it saw no basis to disturb the directive. 

Our partner Joseph DeCoursey successfully prepared the brief to the Appellate Division in Razzano. Anyone with questions about the case should feel free to contact Mr. DeCoursey.

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