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

HAMBERGER & WEISS LLP

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  (716) 852-5200

  (716) 852-0003

We are pleased to announce that four of our attorneys: Matt Hoffman, John Land, Dave Marello, and Brian Schaedler have been elected as partners in the firm, effective January 1, 2022.

Matt has been practicing workers' compensation defense since he was admitted to New York Bar in 2014. He is expert in appellate practice and, notably, he successfully argued O'Donnell v Erie County, 35 N.Y.3d 14 (2020) before the New York Court of Appeals, reaffirming the obligation of partially disabled injured workers to demonstrate a nexus between their post-retirement reduction in earnings and their disability. Matt is also an adjunct professor at the University at Buffalo Law School where he teaches a course on appellate advocacy.

He is a member of the Erie County and New York State Bar Associations. Matt is resident in our Buffalo office.

John has also been practicing workers' compensation defense since his admission to the bar in 2015, following his graduation, summa cum laude, from the State University of New York at Buffalo Law School in 2014. While in law school, John won “Best Oralist” at the Midwest Super Regional Round of the Phillip C. Jessup International Law Moot Court Competition in February 2014. John's professional interests cover every aspect of workers' compensation claims from initial controversy to appellate court. He has also defended employers against illegal employment claims under WCL §120.

He is a member of the Erie County and New York State Bar Associations. John is resident in our Buffalo office.

Dave has been practicing law with Hamberger & Weiss LLP since his admission to the New York Bar in 2015. In addition to general workers' compensation litigation, Dave has developed a sub-specialty in representing our clients’ interests in third party actions before State Supreme Court and the Court of Claims. He also handles Loss Transfer arbitration hearings for our clients.

Dave is an Erie County native. Outside of the office, Dave enjoys playing sports and working on his golf game. He is a member of the Erie County Bar Association and is resident in our Buffalo office.

Brian is also a graduate of the State University of New York at Buffalo Law School, where he not only served as a Publications Editor on the Buffalo Law Review, but graduated in 2014 with the honor of three separate awards: the Robert J. Connelly Trial Technique Award, the American Bar Association and the Bureau of National Affairs Award for Excellence in the Study of Health Law, and the Harold A. Dautch Memorial Scholarship Award for Academic Excellence. Brian is an expert litigator and has successfully defended our clients throughout the thousands of hearings and depositions he has handled.

When not in hearings, Brian can be found at the gym, playing sports, or watching the Buffalo Bills or Sabres. Brian is a member of the New York State Bar Association and is resident in our Rochester office.
 

 

Bram Lehman Joins H&W LLP as Special Counsel 

 

We are pleased to welcome Bram Lehman to the firm, who joined us as Special Counsel in December 2021. Bram has more than 30 years of experience in New York workers’ compensation. He was most recently a partner in the firm of Bond, McDonald, & Lehman in Geneva, NY where he represented claimants for 20 years. Bram graduated cum laude from Syracuse Law School in 1991, where he was an editor of the Syracuse Law Review. He began his workers’ compensation career in 1993 at the Syracuse defense firm Mackenzie, Smith, Lewis, Michel, and Hughes, where he represented a wide range of carriers, third party administrators and self- insured employers.  He then became a partner at another Syracuse defense firm, Whyland & Richmond, LLP, where he practiced until 2000. Bram was a Geneva City Court Judge from 2007 until 2014. He is a member of the New York State Bar Association and is resident in our Rochester office.

 

Practice Tips Regarding the 130 Week PPD Credit/MMI "Safety Valve" Provision

 

In 2017 the workers’ compensation law was amended to allow carriers to take credit for temporary disability payments paid to a claimant beyond 130 weeks (2.5 years) from the date of accident or disablement against that claimant’s maximum benefit weeks from a permanent partial disability award under §15(3)(w). This rule applies to all injuries with dates of accident or disability after April 9, 2017. However, the credit only applies if there was no intervening finding that the claimant was not at maximum medical improvement (“MMI”). Now that we are well past 130 weeks from April 9, 2017, this provision has become increasingly relevant and we have encountered a few different issues we want our clients to be aware of. 

1)         The amendment applies as a matter of law:

Our firm maintains, and the Board thus far seems to agree, that the amendment applies as a matter of law.  In other words, there is no need for the carrier to specifically note its entitlement to the credit at the time classification is decided. We have seen some cases where the claimant's bar disputes this and alleges that the existence of a credit must have been raised at the time of permanency. We are unaware of any precedent in support of this position. Should you receive any ruling from the Board finding the carrier is not entitled to a credit against the cap on the basis that it was not raised at permanency, please let us know.   

2)         All weeks in which payments were made after 130 weeks from the date of accident/disablement count towards the credit

We have heard some argument that the carrier is only entitled to a credit after 130 weeks of payments have been made, rather than the credit applying for any benefits paid after 130 weeks have passed from the date of injury. We disagree with this argument. The statute states that whenever the carrier has provided compensation beyond 130 weeks from the date of accident, it gets a credit for those payment weeks. It says nothing about an obligation to have paid 130 weeks of compensation.  Furthermore, Board Subject Number 046-936 says “The reforms … 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 language makes no claim that 130 weeks of benefits must be paid for the credit to apply. 

Accordingly, should you receive any decision where a WCLJ finds you are not entitled to credit weeks on the basis that they did not begin to accrue until 130 weeks of temporary benefits had been paid, please let us know. 

3)         Avoid MMI litigation when the outcome is uncertain

To paraphrase Sun-Tzu, “never enter into any battle you have not already won.” As noted above, the credit for temporary benefits disappears if there is a no MMI determination before permanency is ultimately found. Thankfully, this provision is worded narrowly. For the credit to be forfeit, 1) permanency must be at issue; 2) the claimant must have produced medical evidence he is not at MMI; 3) the carrier must have had the chance to secure an opinion on the question; and 4) the Board must have decided that the claimant is not at MMI.  

Therefore, it is wise to avoid litigating the issue if it does not seem likely the carrier will prevail.  Better to accept the opinion of a claimant’s doctor that he is not at MMI for the time being, secure in the knowledge that the benefits you are paying now will ultimately act as a credit, rather than litigate and lose not only the issue of MMI, but the availability of the credit. In cases where the Board sets the matter down for permanency on its own motion, and there is an opinion from claimant's doctor that he is not at MMI, it may be prudent to consider accepting that opinion, unless there is some obvious factual or legal deficiency.  We can then argue that the credit was not forfeit on the basis that none of the latter three events occurred.

We anticipate that the claimant's bar may ultimately argue for such cases to be disqualified from the credit, but we are optimistic about our position given the language of the statute. 

 

Governor Hochul Signs Workers' Compensation Bills at end of 2021

 

A number of workers' compensation bills were signed into law by New York Governor Kathy Hochul to close out 2021. The first creates a schedule for attorney fees and removes much of the Board’s discretion regarding same. The new law adds subdivisions 2 and 3 to WCL §24 and provides that the Board “shall” approve fee applications “in an amount commensurate with the services rendered and the amount of compensation awarded, having due regard for the financial state of the claimant” in accordance with the following schedule:

(a) One third of a week’s compensation for continuing payments
(b) 15% of a retroactive award increase over prior payments
(c) 15% of SLU and SFD awards less prior payments
(d) 15% of PTD and PPD classification awards less prior payments, plus a sum equaling 15 weeks of the weekly rate
(e) 15% of Death awards less prior payments, plus 15 weeks at the weekly rate
(f) 15% of Section 32 Settlement award and waiver of any prior fees awarded but not accrued.

Despite stating that fees shall be "commensurate with services rendered," the amendment seems to indicate that the Board must award fees in accordance with this schedule, regardless of the amount of work the attorney performed. The fact that the language provides that the Board “shall” award in accordance with the schedule implies that the Board has little discretion on fees. The Governor’s signing memorandum references some technical changes to the law, which are now the subject of Senate Bill S7762, currently working its way through the legislature. This bill will push the effective date for the attorney fee schedule to 1/1/23. Additionally, the bill will require written fee applications for fees more than $1,000.00. Significantly, the bill states that benefits allocated towards future medical expenses in Section 32 agreement shall not be included in the calculation of the fee. Senate Bill S7762 has been passed by both the Senate and the Assembly. Thus, the bill will presumably be signed by the Governor in the near future.

The next bill, signed on 12/23/21, concerns the Uninsured Employers Fund (UEF) and adds a new subdivision 6-a to WCL §26-a. The new subdivision provides that in the event the Board is unable to identify the responsible insurance carrier for an employer within ten days of filing of a new claim, it shall “appoint” the UEF as the insurance carrier “until such time as the responsible insurance carrier is determined.” At the time she signed the bill, the Governor announced that she had reached an agreement with the legislature to amend the bill to allow thirty days from claim filing for appointment of the UEF as carrier. The amendment further provides that “Upon such appointment, the UEF shall immediately commence payments and provide medical care…” (emphasis added). It remains to be seen just how immediate the UEF’s payments will be. Arguably, this legislation denies the UEF the opportunity to controvert a claim on basic ANCR issues. The amendment takes effect sixty days after signing (February 20, 2022) and applies only to claims filed on and after that date.

The bill most applauded by attorneys, signed on 12/22/21, takes away the Board’s power to deny applications for Board review and Rebuttals to same based on technical defects in the RB–89 and RB–89.1 cover sheets. The bill adds a new Sec. 23-a to the WCL which provides that notwithstanding Board Rule 300.13(b) and Board Subject Nos. “a mistake, omission, defect and/or other irregularity in a coversheet accompanying” an Application for Board Review, Application for Full Board Review, or Rebuttal shall not be grounds for denial of such Application or Rebuttal. The Board is to “permit any such mistake, omission, defect and/or irregularity to be corrected within twenty days of written notice by the board” of same, or "if a substantial right of either the party filing the application or party filing the rebuttal is not prejudiced, such mistake, omission, defect and/or irregularity shall be disregarded.”
WCL §23-a takes effect immediately but does not apply to previously denied Applications or Rebuttals.

Other bills signed near the end of 2021 include S.1022-A, which added a new WCL §17-a to the statute, requiring the Board to translate all documents and forms used by or issued to injured employees in the 10 most common non-English languages spoken in New York State. The new law also requires the Board to provide interpretation services to injured employees and to publish a "language access plan" as well as a point a "language access coordinator." The new law is effective 3/22/22.

Finally, in October 2021, the Governor signed the "Nigro Act" named for Anthony Nigro, a bus mechanic who died in 2012 of lung cancer from exposure to diesel exhaust. This law creates a new WCL §16-a that provides a one time, one year opportunity to file a death benefit claim for any cancer due to exposure to diesel exhaust that otherwise would be disallowed by the timely claim filing or timely notice defenses. The one-year window begins on 10/29/21 and ends on 10/28/22.

Please contact our partner Ron Weiss with any questions about the above legislation.

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

H&W New York Workers' Compensation Defense Newsletter
Vol. 6, Issue 1

Hamberger & Weiss LLP Celebrates 30 Years! 

July 1, 2021 marked our firm’s 30th anniversary. At our founding in 1991, we were eight attorneys. Over three decades we, along with our partner clients, have been witness to enormous changes in the New York Workers’ Compensation system, including the 1996 reforms with the adoption of Section 32 Settlements, the creation of e-Case in 1999, the Medicare Set-Aside issues which arose in 2001, the 2007 Reform Legislation with durational caps on PPD benefits and the Rocket Docket, the closure of the Second Injury and Stale Claims Funds and, most recently, the implementation of the Virtual Hearing system which allowed for nearly uninterrupted adjudication of claims during the COVID-19 pandemic.

Over these thirty years we have worked side-by-side with you, our valued clients, to navigate through all of these changes and opportunities. In the process our firm has grown to forty attorneys, representing our clients at hearings statewide through the Virtual Hearing system, as well as the related work of 32s, MSAs, Conditional Payment resolutions and Loss Transfer arbitrations.

It has been our privilege to serve you for all these years, and we look forward to continuing our relationships for the next 30 years! 

Board Requires Affidavit of No Separate Agreements with Section 32s

Earlier this month, the Board announced a new policy, effective 12/6/21, that will require the person signing a Section 32 agreement on behalf of a carrier/self-insured employer or third-party administrator to also sign an affidavit attesting that there are no separate agreements between the parties not reflected in the Section 32 agreement and that the claimant was not required, as a condition to entering into the Section 32 agreement, to enter into a separate agreement or contract in the future. The Board is concerned about employers that require claimants to sign a separate release of liability or other contract, the terms of which are not included in the Section 32 agreement submitted to the Board. The Board’s stated reason for the Board’s concern is that it is not able to determine whether a Section 32 agreement is “unfair, unconscionable, improper as a matter of law or was the result of an intentional misrepresentation of material fact” if all of the terms and conditions between the parties are not written in the Section 32 settlement agreement. 

One important issue overlooked by the Board is that, generally, Section 32 settlement agreements are signed by the carrier, third-party administrator, or defense counsel for one of those entities. The agreements that the Board is concerned with are between the employer and the claimant. This will, in most cases, put the person who has historically signed the agreement, usually an adjuster or attorney for the carrier, to have to attest under the penalty of perjury to the non-existence of an agreement between the claimant and the employer even though that adjuster or attorney might not be aware of such an agreement. We submit that the claimant would have direct knowledge as to any side agreement and the ability to affirm that  no such side agreements exist beyond those cited in the Section 32. As of this moment, however, the Board has not adopted a form affidavit for signature by the claimant to so attest. 

The Board said that it would not approve any Section 32 agreement conditioned upon the claimant signing a separate agreement or contract that contains terms which are not included in the Section 32 agreement submitted to the Board. That said, the Board noted that a Section 32 agreement which included terms providing that a claimant would release an employer from liability would not necessarily be invalid. However, the Board would give “significant scrutiny” to such terms due to what the Board called the “disparity in bargaining power and financial resources between individual claimants and insurance carriers/self-insured employers.” The Board previously used such language in prohibiting provisions of a Section 32 agreement that require the claimant to indemnify and hold the carrier harmless for any payment made by Medicare for treatment of claimant’s work-related injuries prior to the execution of the Section 32 Waiver Agreement.  See, Subject Number 046-372 (3/2/2020).

Although the Board appears to be allowing employers and carriers to include release language in the Section 32 agreement (notwithstanding the Board’s extra scrutiny of such language), it remains to be seen whether the Board will allow or require separate contracts to be appended to the Section 32 agreement as an exhibit. Our expectation is that the Board will not allow this as the Board’s announcement was written with the intent of curtailing such language by allowing release language only within the Section 32 agreement and, even then, giving strict scrutiny to such language when included. 

Employers that wish to continue to use side agreements and general releases in conjunction with Section 32 settlement will need to be prepared to have the language of these agreements reviewed by the Board and consider whether they will be willing to proceed with a Section 32 agreement in the event that the Board invalidates the release language as “unfair, unconscionable, improper as a matter of law.” 

Additionally, coordination with the claimant's attorney before the Section 32 hearing will be needed in order to prepare the claimant to answer the Law Judge’s questions about any side agreements. If the claimant testifies that he or she understands the side agreement, wants the Section 32 agreement to be approved, and believes the overall deal is fair, we think that it would be difficult for a Law Judge to find the agreement unfair or unconscionable. The Law Judge's refusal to approve a Section 32 agreement despite such testimony may provide a good basis for an appeal.

Please do not hesitate to contact any of our attorneys with questions about this new policy.

Court of Appeals Denies Motion for Leave to Appeal in Quigley - Medical Marijuana Permitted in New York Comp

On 9/14/21, the Court of Appeals denied the carrier’s motion for leave to appeal the Appellate Division’s 2/25/21 decision in Quigley v. Village of East Aurora. Recall that the Quigley case affirms authorization and use of medical marijuana for treatment of injuries in the New York Workers’ Compensation system. The Appellate Division had held that Federal law classifying marijuana as a Schedule 1 controlled substance did not inherently preempt New York State legislation regarding the prescription and use of medical marijuana. It also held that reimbursing a claimant for out-of-pocket costs associated with purchasing medical marijuana legally prescribed under New York State law is unlikely to be considered aiding or abetting Federal controlled substance crimes. Furthermore, the Appellate Division ruled that authorization and use of medical marijuana in the New York Workers’ Compensation system does not conflict with other New York State legislative provisions outside the Workers' Compensation Law stating that insurance carriers are not responsible for payment for medical marijuana. The Court distinguished those other legislative provisions outside the Workers Compensation Law, because Section 13 of the Workers' Compensation Law explicitly states that workers' compensation insurance carriers are liable for essentially all forms of causally related medical treatment arising from a compensable injury.

Given the Court’s refusal to hear the case, the Appellate Division’s decision in Quigley is controlling. Medical marijuana is permitted in the New York Workers’ Compensation system, subject the Board’s rules and regulations. 

Court of Appeals Grants Motion for Leave in Case Allowing PPD Benefits After Death

On 9/24/21, the Court of Appeals granted the employer leave to appeal the Appellate Division’s decision in Green v. Dutchess County BOCES, which we reported on back in March 2020. Our readers will recall that the Green decision found that when a claimant with a capped permanent partial disability (“PPD”) dies for reasons unrelated to established injuries, any remaining weeks on the PPD cap are payable to the deceased claimant’s surviving relatives enumerated in WCL §15(4). The employer’s initial motion for leave to appeal to the Court earlier this year was dismissed. 

We continue to believe that this decision is wrongly decided and fails to apply long-standing precedent requiring causally related lost time / lost wages as a prerequisite to permanent partial disability awards. In light of the pending appeal before the Court of Appeals, we recommend that carriers and employers continue to object to such awards. None of our firm’s pending appeals on this issue have been decided by the Board, which we presume is awaiting a decision from the Court of Appeals before resolving the pending appeals. 

Changes in WAMO Section 32 Procedure

The Board’s Waiver Agreement Management Office (“WAMO”) has advised of changes regarding WAMO settlements. Future Section 32 agreements involving established WCL Section 15(8)(d) claims will be processed by the Special Funds Group.  Settlements will be paid by the carrier or self-insured employer to claimants, then reimbursed by the Special Funds Group, rather than paid to claimants directly from WAMO.  

The Board has not issued a formal announcement on this as of this writing. Presently, the Board website simply states, “WAMO Section 32 process is being revised.”  We were advised of the change by an attorney in the Board’s Special Funds Group / Waiver Agreement Management Office. We await further guidance from the Board, as the change is likely to affect the WAMO application process and the format of WAMO settlement agreements. 

Reminder - Board Allows Direct Deposit of Indemnity and Death Benefits

As of July 1, 2021, injured workers and those persons entitled to a death benefit will have the right to have indemnity payments directly deposited into at least two bank accounts.  The Board adopted a new direct deposit regulation, 12 NYCRR 300.26, which requires carriers, self-insured employers, third party administrators and Special Funds, including the UEF, to make direct deposit available to all injured workers or persons entitled to a death benefit pursuant to an Election Form to be prescribed by the Board. The Board also requires that a one-time Notice be provided to all such persons. Neither the Election Form nor the specific format of the Notice are published to date, but the requirements of both are delineated in the new regulation. Carriers/SIEs/TPAs may use the current Direct Deposit and Debit Card Authorization Form (DD-1) already available and may include whatever additional elements they find appropriate, as long as the regulation requirements are met.  

While we recommend detailed review of the regulation, of note are the following: 

  • The one-time Notice and Election Form must be provided to the injured worker or person entitled to a death benefit within 14 days of the submission of a FROI.  
  • The new regulation applies to ongoing awards directed prior to 7/1/21 as well as those directed thereafter. If the FROI was due prior to 7/1/21, then the Notice and Election Form will be due with or before the next SROI is due or submitted after 7/1/21. 
  • The Notice must be published on the carrier, SIE or TPA’s website, along with instructions for submission of the Election Form.  
  • The carrier, SIE, TPA or Special Fund may set a minimum amount for direct deposit into a single account, not to exceed $20 per biweekly payment. 
  • The Notice and Election Form are not required for payments to injured workers or persons entitled to death benefits in lieu of workers’ compensation benefits, schedule loss of use awards, Section 32 settlement proceeds, or awards made without direction to continue payments. 

Should you have any questions about this issue, please do not hesitate to contact our partner Susan Parzymieso at 716-852-5200 or sparzymieso@hwcomp.com.

Contact Us

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

H&W New York Workers' Compensation Defense Newsletter

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Board Permits Carriers to Raise Labor Market Attachment on 8/16/21

 

Yesterday, on June 28, 2021,  the Board provided updated guidance on the labor market attachment issue. In its announcement, the Board acknowledged the expiration of Executive Order 202, which declared the COVID-19 State of Emergency in New York, and announced that it would permit carriers, employers, and other payers to raise the issue of Labor Market Attachment beginning on August 16, 2021. 

 

The Board does not explain its reasoning for delaying the ability of carriers to raise the labor market attachment issue for another seven weeks. We assume that the delay is designed to place claimants on notice of the return of the labor market attachment defense so that they have an opportunity begin a job search or engage in other labor market attachment activities before August 16th. 

 

We note again,  as we did last week, that the Board no longer has any legal basis to suspend the well-established requirement for partially disabled claimants to demonstrate labor market attachment. That said, we fully expect that Law Judges throughout the State will abide by the Board’s August 16th directive and not allow carriers to raise the labor market attachment defense before that date. Accordingly, carriers and employers will need to decide whether it is cost effective to pursue the issue before August 16th given the likelihood of an unsuccessful outcome before the Law Judge, necessitating an appeal to a Board Panel, who will likely affirm the Law Judge. 

 

The Board also notes that claimants “will be required” to demonstrate labor market attachment efforts that are “appropriate given the confines of the remaining restrictions of the State of Emergency.” The announcement also notes that a claimant may not refuse employment solely because it requires in-person attendance at work, so long as the employer is “in compliance with all Executive Orders governing business operations in the state.” Finally, the Board’s announcement allows Law Judges to “take into account the special circumstances each claimant faces” in determining issues relating to labor market attachment cases. 

 

These additional elements may complicate labor market attachment cases with development of the record on issues concerning any COVID-19 restrictions in place at the time of the claimant’s job search, whether the businesses the claimant applied to were in compliance with all Executive Orders, and the broad “special circumstances” of each claimant. 

 

Please do not hesitate to contact any of  our attorneys for assistance with this issue.

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

Labor Market Attachment and the End of the COVID-19 State of Emergency in New York

 

The COVID-19 “State of Emergency” in New York State came to an end on Thursday, 6/24/21, with the expiration ofExecutive Order 202. This raises the question as to whether the Board policy that suspended the obligation of partially disabled claimants to demonstrate labor market attachment has ended as well.The Board’s original announcement declaring the policy stated that “[t]he Board will review this requirement upon the Governor’s declaration that the period of emergency is over.” 

As of this writing, there has been no official announcement from the Board revoking the policy but we believe that even in the absence of an announcement from the Board that employers and carriers should raise the issue of labor market attachment in appropriate cases. With the State of Emergency over, the Board no longer has any legal basis to suspend the well-established requirement for partially disabled claimants to demonstrate labor market attachment. 

The Board’s announcement suspending the requirement to demonstrate labor market attachment also noted that in any cases that were ready for classification and in which the employer or carrier raised the issue of labor market attachment, the matter would be adjourned until such time that the claimant would be able to demonstrate labor market attachment. We recommend that any employer or carrier with a case so adjourned should file an RFA-2 to request a hearing to address permanency and labor market attachment. 

Anecdotally, our attorneys have heard from Law Judges in their hearings throughout the state that the judges are awaiting further guidance from the Board on how to proceed regarding the labor market attachment issue. Notwithstanding this, we recommend that employers and carriers begin pursuing the labor market attachment defense in cases where the claimant is receiving temporary partial disability benefits. Claimants should be sent work search questionnaires to determine if they are engaging in any labor market attachment activity. Employers and carriers should file RFA-2s with the Board to raise and pursue the labor market attachment defense. 

Please do not hesitate to contact any ofour attorneys for assistance.

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

6/30/21 Webinar from Hamberger & Weiss LLP: Injuries in the Line of Duty: An Introduction to General Municipal Law 207-c and 207-a

 

On Wednesday, June 30th, our partner John Terzulli will present "Injuries in the Line of Duty: An Introduction to General Municipal Law 207.” This webinar will discuss the basics of General Municipal Law 207-c and 207-a. These sections of the General Municipal Law provide a statutory benefit system to police officers, corrections officers, and firefighters injured in the line of duty. 

*This webinar is pending approval for NY Attorney CLE credit.

It will be held at 11:00 AM EST on Wednesday, June 30th, 2021. Please click here to register.

You may also copy the link below and paste into your browser toregister: https://www.compevent.com/webinars/index.php?event_web_access_code=dcedcc2ef70ddad7437f157ffc0dec40

 

 

H&W New York Workers' Compensation Defense Newsletter
Vol. 5, Issue 4

Happy New Year!

All of us at Hamberger & Weiss LLP wish our readers a very Happy New Year! In this month's newsletter, we sadly say farewell to one of our founding partners but happily welcome two new partners. 2020 was a challenging year but thankfully, with the continued confidence of our clients, the hard work of our attorneys, and the dedication of our staff, we persevered.

With news of effective COVID-19 vaccines, we can imagine post-pandemic world where we can see our clients and friends face-to-face again. We sincerely wish that 2021 is a healthy and prosperous year for every one of you.
 

Farewell to Peter Kaplan

After over 30 years of zealously representing our clients, Peter Kaplan, one of our founding partners, has retired effective 12/31/20. Now freed from RFA-2 hearings and fraud trials, Peter will have more time to spend with his wife Eleanor in their Atlanta, Georgia home.

Peter was instrumental in the rapid growth of the firm following its creation. His relationships and industry contacts introduced many to Hamberger & Weiss LLP who are now valued clients of the firm. His adversaries in the claimants' bar knew him as an aggressive, tenacious litigator, as well as a premier fraud litigator in the defense bar.

In our office, however, we knew Peter as a mentor and a friend, who always had his door open to help his colleagues work through a difficult case, develop a business idea for the firm, or just to drink espresso and talk about current events.

Although the claimants' bar may be happy to learn of his retirement, we here at Hamberger & Weiss LLP will miss Peter greatly. Without him, we would not be the firm we are today. Congratulations, Peter, on an amazing career!

Kelly Ochs-Hepworth and John Coyle Elected to Partnership

We are pleased to announce that Kelly Ochs-Hepworth and John Coyle have been elected as partners in the firm, effective January 1, 2021.

Kelly has been practicing workers' compensation defense since she was admitted to New York Bar in 2013. She has developed a sub-specialty in fraud litigation and social-media investigations. A zealous litigator, expert in trial preparation and practice, Kelly is known as a formidable adversary of the claimants' bar.

She is a member of the Monroe County Bar Association and is resident in our Rochester office.

John has been practicing workers' compensation defense since his admission to the bar in 2004. He joined the firm after law school. After three years with us, he left to work in-house for a workers' compensation insurance carrier. He also worked representing claimants and the Special Funds Conservation Committee. After gaining this valuable experience, John returned to the firm in 2015 and has been with us ever since. Drawing on his wide range of experiences, he can offer unique insight into the litigation process, having practiced from both sides of the table. 

John is a member of the New York State and Cattaraugus County Bar Associations, as well as the Bar Association of Erie County. He is resident in our Buffalo office.

1/13/20 Webinar from H&W LLP: The New New York Medical Treatment Guidelines, Reviewed

On January 13th, our partner Renee Heitger will present "The New New York Medical Treatment Guidelines, Reviewed". This webinar will review the newest Medical Treatment Guidelines from the Workers’ Compensation Board. The new guidelines are effective 1/1/21 and include hand, wrist, and forearm injuries, which replace the carpal tunnel syndrome guidelines. Also discussed are the new occupational/work-related asthma guidelines.

It will be held at 1:00 PM EST on Wednesday, January 13th, 2021. Please click here to register.

You may also copy the link below and paste into your browser to register: https://www.compevent.com/webinars/index.php?event_web_access_code=34828c6a722695f6e18eb44fce3801d7

Appellate Division Clarifies Taher Holding Regarding Claimants Receiving Both SLU and PPD

On 12/24/20, the Appellate Division, Third Department decided Nasir v. BJ's Wholesale Club. This decision holds that the court's earlier decision in Taher v. Yiota Taxi does not compel the Board to award both a schedule loss of use award and a permanent partial disability classification in the same case if the Board rejects the medical evidence supporting one of these forms of permanent disability on credibility grounds.

As most of our readers know, Taher held that a claimant can receive both a schedule loss of use award and a permanent partial disability classification in the same case at the same time so long as the claimant has not received an initial award under the classification. Before Taher, a claimant could receive either a schedule loss of use award or a permanent partial disability classification, but not at the same time in the same case. Taher and its progeny have significantly changed the analysis of claims at permanency.

The Nasir decision clarifies that a claimant may receive both forms of permanency awards only if the Board finds the medical opinions supporting both forms of permanent disability credible. The Board may use its inherent fact-finding power to reject one or more of the permanent disability medical opinions as lacking credibility. If the Board rejects a medical opinion on permanent disability as lacking credibility, then the form of permanent disability in that medical opinion will not be awarded. In cases where the Board finds the medical opinions supporting both forms of permanent disability credible, both forms of permanent disability may still be established.

This decision allows employers and carriers another avenue to attack SLU opinions in a case resolved with classification by, for example, arguing that the opinion on SLU is not credible enough for the Board's consideration.

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Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
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Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

H&W Webinar: Wednesday 12/9/20 11:00am EST - Vocational and Medical Considerations in Settlement Valuation 

 

Next week, on December 9th at 11:00am EST, our partners Dave Snyder and Janice Atwood will present "Vocational and Medical Considerations in Settlement Valuation in New York". This webinar will show the effect of vocational and medical evidence on a claimant's permanent disability rating and the valuation of claims for settlement. We will discuss strategies for negotiating settlements, preparing settlement valuations, and planning exit strategies to mitigate liability. 

It will be held at 11:00 AM EST on Wednesday, December 9th 2020. Please click here to register. CEU credits for insurance adjusters and CLE credits for New York attorneys will be provided.

You may also copy the link below and paste into your browser to register: 
https://www.compevent.com/webinars/index.php?event_web_access_code=b3ad42acb6101975905dc32f44634a05

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com


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: https://www.compevent.com/webinars/index.php?event_web_access_code=8d660701f9684f120616a0791bd34159
 

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.

Contact Us

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

H&W New York Workers' Compensation Defense Newsletter
Vol. 5, Issue 2

9/24/20 Webinar from H&W LLP: New York Medical Treatment Guidelines and Drug Formulary Update

On September 24th, our partner Renee Heitger will present "New York Medical Treatment Guidelines and Drug Formulary Update". This webinar will provide a brief overview of the new Medical Treatment Guidelines for injuries to the elbow, ankle, feet, hip, groin, and occupational interstitial lung disease and will also provide an update on the Board’s Drug Formulary.

It will be held at 11:00 AM EST on Thursday, September 24th 2020. Please click here to register.

You may also copy the link below and paste into your browser to register: https://www.compevent.com/webinars/index.php?event_web_access_code=873bdb5a44b23b84e2e218399e517fc3

Court Reverses Board Decision Establishing Claim, Citing Insuffcient Medical Evidence

On 9/3/20, the Appellate Division, Third Department decided Johnson v. Borg Warner, Inc. This decision reaffirms the principle that medical evidence which is speculative or contains statements of mere possibility on causal relationship is not sufficient to establish a claim. In this case, the claimant's treating physician testified that there was "a strong possibility” claimant had an acute or chronic meniscus tear and it was "very reasonable that something could have happened at work that exacerbated a chronic condition." The doctor also stated it was "highly possible" that the injury was causally related to the claimant's work.  The Board established the claimant's case based on this testimony, but the Appellate Division reversed, holding that the doctor's testimony amounted to mere statements of possibility. In a nutshell, medical evidence must signify that a claimant's injury, more probably than not, is causally related to their work activities.
 
This decision serves as a reminder that medical evidence must meet this minimum standard before a claim can be established. 

Contact Us

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

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 WorkersCompensation.com 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: https://www.compevent.com/webinars/index.php?event_web_access_code=e6dd07dd5b81653e6b05c95bf8dce2ca
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: https://www.compevent.com/webinars/index.php?event_web_access_code=3cbc2e88386b0a02673e0b5a83a1b82d
 

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.

Contact Us

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

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