State News : New York

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H&W New York Workers' Compensation Defense Newsletter

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Board Releases Three Subject Numbers Concerning 2017 Workers’ Compensation Reform Legislation Including PPD Cap Provisions and Extreme Hardship Safety Net


On 4/25/17 and 4/26/17, the Board issued a trio of Subject Numbers providing interpretation and guidance on certain elements of the 2017 Workers' Compensation Reform legislation contained in the 2017-2018 Executive Budget (Part NNN of Chapter 59, Laws of 2017).  


Subject Number 046-936 outlines the Board's interpretation of the 2017 Workers’ Compensation Reform legislation and provides some insight on how the Board intends to interpret key provisions of the reform legislation, answering some questions raised in Our Summary and Analysis of the Legislation, published earlier this month.  


One of the major changes in the legislation was amendment of WCL §15(3)(w) to allow an insurance carrier or self-insured employer to take credit for temporary disability benefits paid after 130 weeks against the maximum number of weeks of indemnity benefits the claimant would be entitled to upon classification with a permanent partial disability. Because of the confusing way the new statute was worded, there was some question as to whether the 130-week waiting period would elapse 130 weeks after the date of injury or after payment of 130 weeks of temporary partial disability benefits. Additionally, there was some question as to whether all indemnity benefits payable after the 130-week waiting period would be subject to the credit or if the credit would only apply to temporary partial disability benefits.  


It appears that the Board is taking the position most favorable to insurance carriers and employers in its interpretation of the statute. According to the Board, WCL §15(3)(w) was amended“to provide a credit for periods of temporary disability that extend beyond 2.5 years (130 weeks) from the date of injury. Insurance carriers may receive a credit against the maximum benefits payable for permanent partial disability for any periods of temporary disability paid beyond the 2.5 years (130 weeks). This rule applies to all injuries with dates of accident or disability after April 9, 2017.” 


This interpretation allows an insurance carrier or employer to apply the credit against capped PPD benefits for any temporary disability benefits paid—whether partial or total—beyond 130 weeks from the date of injury.  


The Board also notes that one of the other changes to WCL §15(3)(w) includes a “safety valve” that will extend the period of temporary disability beyond 130 weeks where the Board decides that the claimant has not reached maximum medical improvement on that date. The Board will issue “further guidance regarding the application of the safety valve in the near future.”  


Remember that these changes to WCL §15(3)(w) are applicable to cases with a date of injury on or after 4/10/17. As a result, any litigation concerning these changes is probably two-and-a-half years away at best. 


Subject Number 046-937 discusses the procedures that claimants and their attorneys should follow in requesting a 45-day hearing under the revised WCL §25(2)(a). The Board has modified the RFA-1 forms to include a section for the claimant to request a hearing under this section. The new law requires the Board to grant a claimant a hearing within 45 days where that claimant has a work injury, is out of work, and is not being paid. The Subject Number further details when a 45-day hearing is and is not appropriate as well as details penalties that may be applicable where a hearing is requested without good cause.  


Subject Number 046-938 discusses the Board's procedure for claimants requesting an "Extreme Hardship Redetermination" under WCL §35(3). This is the first time that the Board has commented on any procedure concerning the "Safety Net" provisions of WCL §35 first introduced in the 2007 Workers' Compensation Reforms.  


The amendment of WCL §35 to lower the percentage loss of wage earning capacity (LWEC) threshold became effective on 4/10/17 and there is no date of injury limitation on the amendment. Thus, the new "greater than 75%" standard would apply even in cases where the parties stipulated to a LWEC of 80% or lower to avoid applicability of the Extreme Hardship Redetermination provisions of WCL §35 prior to the change in the law.  


The Board has created a new form, the C-35, for claimants to use in applying for Extreme Hardship Redetermination. The form primarily requests income and expense information, indicating that financial information will be the primary basis for determining whether a claimant qualifies for extended benefits under this section.


Appellate Division Affirms Attachment to Labor Market Requirements


On April 13, 2017, the Appellate Division, Third Department decided Palmer v. Champlain Valley Specialty.  This labor market attachment case involved a claimant who sought vocational services with the ACCES-VR program.  However,  after claimant informed ACCES-VR that she was contemplating surgery, the services provided by ACCES-VR were significantly curtailed.  None of claimant’s medical records indicated a surgery recommendation, and none of the treating physicians ever requested or recommended surgery.  During testimony, claimant stated that she decided not to have surgery during the summer of 2014 (to the extent that it was ever contemplated to begin with), but did not meet again with ACCES-VR to re-commence job search services until March 2015, and did not prepare a resume with the service until shortly before her May 2015 workers’ compensation hearing.  The Board found claimant had not actively participated with the ACCES-VR program, and had not acted in good faith.  The Board also found claimant’s independent work search, consisting of only 4 job applications without any documentary proof, insufficient.   


The claimant appealed, and the Appellate Division affirmed, holding that the Board’s findings were supported by substantial evidence.  


This decision underscores the fact that merely signing up with a one-stop career center without active participation does not automatically render a claimant attached to the labor market.  It further underscores the fact that a claimant’s actions must be taken in good faith for labor market attachment purposes.  The Court will affirm Board findings of insufficient labor market attachment proof when the record contains evidence that a claimant acted in bad faith, like the claimant’s misrepresentations about a surgery never recommended by her doctors in this case. 


Finally, remember that even though the 2017 Reform legislation relieves a claimant receiving benefits at the time of classification from proving attachment to the labor market, attachment is still a requirement for receipt of temporary partial disability benefits.


Video Surveillance Formatting Requirements – A Reminder


Please remember that the Board has very specific formatting requirements for video surveillance evidence. It previously described these requirements in Subject Number 046-237. Failure to adhere to these requirements will result in preclusion of your video evidence! 


Specifically, the Board requires that all video recorded submissions marked and played at a hearing must be certified by the submitting party as identical to a formatted DVD–R which is marked and submitted to the Board as evidence. The DVD–R must be formatted in WMV or AVI format. If a party fails to submit simultaneously with the video recorded material a conformed and formatted DVD–R capable of being viewed in Windows Media Player, the Board will not accept the video recorded material as part of the record, and the submitting party will be deemed to have waived the right to submit video recorded evidence on the issue raised. 


It is important to remember these requirements in light of the Maffei decision from the Appellate Division, which created a number of challenges for employers and carriers seeking to introduce video surveillance as evidence. We discussed the Maffei decision in January 2017. You can click here to read our analysis of the Maffei decision.


We sometimes receive video surveillance from our clients for use in litigation that does not meet the Board’s formatting requirements without sufficient time to obtain a copy of the surveillance in the correct format. We urge you to notify your investigators, at the time of the surveillance referral, that any video footage has to be given in the format required by the Board. If you receive footage from your investigators in an incorrect format, you should IMMEDIATELY contact them to get it reformatted.


H&W Webinar on Paid Family Leave


Finally, as a reminder, on 5/31/17, our partner Nicole 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 place Wednesday, May 31 at 1:00 pm.


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Buffalo, NY 14202

Hamberger & Weiss - Rochester Office
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Rochester, NY 14614


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