| Upcoming H&W Webinars on Initial Claims Handling and Paid Family Leave |
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We are pleased to offer you the opportunity to attend one or both of our free webinars in April and May 2017.
On 4/27/17, attorneySusan Parzymieso will present Strategies for Initial Claims Handling. She will discuss best practices for initial claims handling and how to manage claims through the eClaims process to set them up for the best defense in the future.
Please click here to register for the Initial Claims Handling webinar. The webinar is scheduled to take placeThursday, April 27 at 1:00pm.
On 5/31/17, our partnerNicole Graci will discuss New York's new Paid Family Leave Law, which will be administered by the Workers' Compensation Board. Employee contributions to New York State Paid Family Leave can begin on 7/1/17, and the Paid Family Leave Program goes into effect 1/1/18. Please join us for an introductory webinar, where we will address eligibility, filing requirements, denials, arbitration, and other pertinent issues facing employers, self-insured employers, carriers and third party administrators.
Please click here to register for the Paid Family Leave webinar. The webinar is scheduled to take placeWednesday, May 31 at 1:00pm. |
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| Recommendations for Expedited Hearings on Medical Treatment Issues |
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We have noted in recent months that WCLJs have been strictly enforcing the requirement on Board Notices of Hearing regarding the scheduling of depositions in cases involving medical treatment issues. Specifically, WCLJs are precluding employers and carriers from scheduling depositions on these treatment issues when no attempts have been made to complete the deposition prior to the initial expedited hearing on the issue.
If you receive a Notice of Expedited Hearing on a medical treatment issue, that Notice will usually contain language directing the parties to complete depositions prior to the hearing. If that is the case, we strongly recommend that you contact defense counsel to review the file to determine if a deposition should be scheduled.
More often than not we do not recommend deposition testimony, particularly if the treatment at issue involves physical therapy or chiropractic care or where the attending physician didn’t meet his or her burden of proof in making the treatment request. But in those cases involving surgery requests or other expensive forms of treatment, it may be advisable to depose the treating physician.
Given the short period of time between the issuance of the Notice of Hearing and the date of the expedited hearing, having the deposition completed before the hearing is usually impossible. Some WCLJs are more lenient than others with this, but at the very least we recommend at least getting these depositions scheduled before the hearing in those cases where it is advisable to do so. This shows diligence in complying with the Board's direction and we can submit an affirmation requesting an extension showing the doctor's inability to participate in a deposition prior to the hearing. This allows us to protect the record for a potential appeal.
If you have any questions regarding a Notice of Expedited Hearing on a medical treatment issues, please do not hesitate to contact any of our attorneys. |
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| Workers' Comp Reform on Legislative Agenda |
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With the deadline for the New York State Budget looming, workers' compensation reform is again on the Legislative agenda. Of interest to workers' compensation payers are a trio of bills designed to limit costs in the system related to permanent partial disability claims that were not addressed by the 2007 reforms.
The first,S.4014/A.5977, directs the Board to adopt medical impairment guidelines for schedule loss of use (SLU) awards "substantially similar to those developed and completed by the Board on [1/8/16]." There is no reference in the bill to the content of the referenced Guidelines and we can only speculate as to the contents of same. The sponsors' justification for the bill notes that SLUs represent over $1.3 billion in costs to the system and the current impairment guidelines for SLUs are over 35 years old and do not reflect advances in medical science.
The second,S.4554/A.6218, would limit SLU awards to those claimants who have an "impairment of wage earning capacity" of 85% or higher. Those claimants with an "impairment of wage earning capacity" lower than 85% would receive benefits at two-thirds of their average weekly wage for a maximum of 525 weeks, "during the continuance of such permanent partial disability."
The intent of the bill is to stop indemnity compensation to those claimants with an "impairment of wage earning capacity" lower than 85% once they return to work. This would prevent claimants with little or no lost time from receiving a large lump sum SLU that is out-of-proportion to the claimant's actual lost wages.
This is a laudable goal, but the the bill appears to confuse concepts of wage earning capacity applicable to classifiable permanent partial disabilities with SLU awards. In doing so it could be used to argue for payment of indemnity to non-working claimants with relatively small schedule losses for periods greatly exceeding the schedule for that body part.
The last bill,S.4520/A.6602, specifies that the durational limit (caps) on permanent partial disability claims under Section 15(3)(w) (classification claims) would begin on the date of injury, rather than the date of the claimant's legal classification by the Board.
All three bills are the subject of vehement opposition from labor and the claimant's bar. |
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| Rare Split Decision from Appellate Division in LWEC Case |
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On 3/30/17, the Appellate Division, Third Department, in a split decision with a 3-2 majority, decidedBurgos v. Citywide Central Insurance Program, et. al., affirming a Board decision finding the claimant to have a permanent partial disability with an 85% loss of wage earning capacity. The claimant wanted classification with a permanent total disability, based on the opinion of her treating physician, who opined that she suffered a total disability due to difficulty with prolonged walking, standing, and sitting, an inability to lift anything, and difficulties with transportation and personal hygiene. Moreover, the treating physician opined on a C-4.3 form that the claimant had an exertional ability of performing "less than sedentary work."
The Court cited the rule that a permanent total disability is appropriate "where the medical proof shows a claimant is totally disabled and unable to engage in any gainful employment." Relying on this, it dismissed the claimant's reliance on her physician's opinion that she was capable of only "less than sedentary" work in arguing for a permanent total disability. The Court said that although this fact would be relevant in determining the claimant's loss of wage earning capacity and the durational limit of the claimant's permanent partial disability benefits, it would not be dispositive "in the context of establishing the claimant's overall disability."
The Court's majority ruled that substantial evidence supported the Board's decision of a permanent partial disability, which credited the conclusions of the employer's independent medical examiner, who found the claimant to have few restrictions on work than the treating physician.
The dissenting justices felt that the Board should have found the claimant to have a permanent total disability since it found her to be capable of only "less than sedentary work" and determined that she had the highest medical impairment rating available under the 2012 Guidelines for a low back injury. The dissenting justices opined that such findings invite the question of what gainful employment the claimant could possibly perform with that level of medical impairment and functional loss, noting that the record identified none and that they were unaware of any such employment either. It appears to us that the dissenting justices confuse the concept of total industrial disability with the separate issue of total medical disability.
Because of the split decision, the claimant will have the opportunity to take an appeal by right the Court of Appeals, the highest court in the State of New York. |
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Hamberger & Weiss - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com
Hamberger & Weiss - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com |
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