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.


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New York

HAMBERGER & WEISS LLP

  (716) 852-0003

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.

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 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

H&W New York Workers' Compensation Defense Newsletter

View this email in your browser

H&W LLP Presents COVID-19 and the Workplace Webinar

 

This Thursday, May 21st at 11am, we are pleased to offer a webinar discussing COVID-19 and its impact on employment from a New York Workers' Compensation perspective. This free webinar will be presented by our own Melanie Wojcik.

The webinar will cover claims for work-related COVID-19 infections, how to investigate those claims, compensability guidelines, and litigation strategies. Melanie will also discuss claims for work-related injuries that may arise while employees are working from home, how to investigate those claims, and how to determine if they are compensable.

Please click here or use the button below to register for the webinar. We hope that you can join us! 

 

 

Board Issues First Decisions Addressing Labor Market Attachment After COVID-19

 

Most of our readers know that the Board put the labor market attachment defense "on pause" at the beginning of the COVID-19 emergency. This allowed claimants receiving temporary partial disability benefits to continue to do so without the need to demonstrate labor market attachment.
Since the start of the COVID-19 emergency, the Board has (as of this writing), issued three decisions discussing the Board's consideration of labor market attachment since the start of the COVID-19 emergency. 

In two of these three cases, the claimant was receiving temporary partial disability benefits and the carrier in each case raised the labor market attachment defense. In the first of those cases, BJ's Wholesale Club, N.Y.Work.Comp. G1808394 (5/7/2020), the carrier raised the defense at a hearing in December 2019. The Judge decided to hold in abeyance the labor market attachment issue and directed the parties to produce medical evidence of permanency. In a later decision one month later, the Judge again held the labor market attachment issue and instead directed the parties to develop the record on permanency. The carrier appealed both decisions, arguing that awards should have been suspended without prejudice pending resolution of, among other things, the issue of labor market attachment. On review, the Board Panel affirmed the both of the Judge's decisions and noted that the issue of labor market attachment should be held in abeyance due to the COVID-19 outbreak. 

In the other case, Chipotle, N.Y.Work.Comp. G1376145 (5/7/2020), the claimant attempted to avoid the carrier's use of the labor market attachment defense by relying on an over four-year-old letter from her employer stating that she was still employed by the employer of record. At a hearing in January 2020, the carrier argued that it should be permitted to pursue the labor market attachment defense because although the claimant was still technically an employee of the employer, the claimant could not reasonably expect that she would return for the work for the employer nearly 4 1/2 years after the date of injury. The Judge disagreed, finding that "since the claimant is still employed by [the employer] the issue of attachment to the labor market is not applicable right now.”

On appeal, the Board felt that the over four-year-old letter produced by the claimant was insufficient to show an "active employment relationship" with the employer of record but said that the record required development regarding whether such active employment relationship existed. Rather than returning the case to the Judge for this purpose, however, the Board cited the ongoing COVID-19 outbreak and held in abeyance any development of the record on this issue or labor market attachment generally. 

Finally, in Republic Services of NY, Inc., 2020 N.Y.Work.Comp. 70007534 (5/1/2020), at the November 2019 hearing, the Judge awarded the claimant temporary partial disability benefits and directed the claimant to produce documentary proof of labor market attachment. In January 2020, the carrier requested a suspension of benefits based on the claimant's failure to produce proof of labor market attachment. The claimant's attorney alleged that the claimant had intended to produce the proof but he neglected to bring it to the hearing. The Judge denied the carrier's request and directed the claimant to produce proof of labor market attachment by 2/24/2020. The claimant did not produce the proof by that date but he later produced a C-258.1 showing a search for seven jobs on 3/11/2020. On 4/7/2020, the Judge issued a decision in which he took judicial notice of the "employment restrictions implemented by New York State as a result of the [COVID-19 crisis], and noted that the claimant did not have to search for work at that time."

On appeal, the Board Panel ruled that the claimant should not have been awarded benefits from the January 2020 hearing to 3/10/2020. However, the Board Panel said that awards should be reinstated as of 3/11/2020 because the claimant produced job search evidence on that date and because "any search for employment thereafter is not required based on employment restrictions implemented by New York state as a result of the Coronavirus (COVID-19)."

There was no discussion in the Board Panel decision as to the sufficiency of the job search evidence provided (i.e., whether the evidence met the American Axle standard) and one wonders if the Board was willing to overlook any deficiencies in the evidence provided in light of the alternative: suspending the claimant's benefits during the COVID-19 crisis. 

Left unanswered by this decision is the question of whether a claimant found not attached to the labor market prior to the COVID-19 crisis would be able to successfully reinstate benefits upon request without producing proof of labor market attachment. 

We believe that the Board should still find a claimant in this situation not attached to the labor market because the text of the Board's announcement states that the Board will not require claimant's to demonstrate that they are attached to the labor market in order to maintain partial disability payments. The use of the verb "to maintain" suggests to us that the suspension of the labor market attachment requirement applies only to those claimants who were already entitled to and receiving temporary partial disability benefits before the COVID-19 emergency began.

 

CMS Lowers Meloxicam Pricing, Will Result in Some Lower WCMSAs

 

In April 2020, CMS began using significantly lower pricing for meloxicam, reducing the pricing from over four dollars a pill to five cents a pill in the 7.5 mg and 15 mg formulations. Historically, meloxicam has been one of the highest priced non-steroidal anti-inflammatory drugs commonly prescribed in workers' compensation claims. The lower CMS pricing for meloxicam will result in lower WCMSAs, permitting the settlement of cases previously thought too expensive to settle due to the cost of this medication.

We recommend that our clients review their files for cases previously deemed too expensive to settle to determine whether meloxicam was the primary cost driver. Please do not hesitate to contact our partner Dan Bowers with any questions.

 

Claimant Denied Further PHP Absent Evidence of Change in Condition From Prior SLU

 

On 4/30/20, the Appellate Division, Third Department decided Hale v. Rochester Telephone Corporation. This decision holds that a claimant may not be entitled to additional protracted healing period (PHP) payments after a previous schedule of loss of use award unless there is a change in the degree of loss of use, regardless of any additional surgeries or temporary total disability.

In this case, claimant received a 55% schedule loss of use award for her right leg. Several years later, she underwent two additional surgeries, which resulted in an extended period of temporary total disability. Claimant requested additional PHP awards based on the temporary total disability after her two new surgeries. The Board denied her request, holding that there had been no change in condition warranting additional PHP awards.

Claimant appealed to the Appellate Division, which affirmed the Board, holding that the Board's decision met the substantial evidence threshold because the medical evidence showed claimant's overall loss of use for the leg remained at 55% despite the two new surgeries. The court held that, under these circumstances, the Board could properly find no change in condition and therefore no additional PHP awards.

This decision now gives employers and carriers a reasonable basis for opposing additional PHP awards after a claimant has already received a previous schedule of loss of use award in the absence of any change in claimant's overall loss of use.

 

Court Clarifies Procedure for Preclusion of Physician Reports

 

On 4/23/20, the Appellate Division, Third Department decided Delucia v. Greenbuild, LLC. This decision clarifies the procedure for seeking preclusion of a treating doctor's medical reports and opinion when the doctor refuses to appear for testimony. It has generally been assumed that a carrier must try to enforce a subpoena in New York State Supreme Court against a doctor who refuses to testify before seeking preclusion of that doctor’s reports and opinion. 

In Delucia, the court clarified that enforcement of a subpoena is not required before a carrier seeks preclusion so as long as the Board has not previously directed the carrier to enforce the subpoena. In this case, the carrier sent five subpoenas to the claimant's treating physicians for medical testimony. Each time the physicians ignored the subpoenas. The carrier did not attempt to enforce the subpoenas in Supreme Court, and the Board never directed the carrier to enforce the subpoenas. The Board eventually precluded the reports and opinion of the two doctors who refused to testify. Claimant appealed to the Appellate Division, arguing that the carrier could not legally seek preclusion until after trying to enforce the subpoenas in Supreme Court. The Appellate Division rejected this argument, holding that a carrier is only required to seek enforcement of a subpoena before requesting preclusion of a treating doctor's reports and opinion if the Board has explicitly directed enforcement of the subpoena in a previous decision. Since the Board never directed enforcement of the subpoenas in this case, the court affirmed the Board's preclusion of the reports and opinions from the doctors who refused to testify.
 

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
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Buffalo, NY 14202
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Hamberger & Weiss LLP - Rochester Office
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Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

 

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

H&W Publishes White Paper on Coronavirus and New York Workers' Compensation

Many of our clients have had questions regarding the novel coronavirus (COVID-19) and whether the contracture of COVID-19 by an employee is compensable in New York State. Yesterday, we published awhite paper that provides an analysis of relevant case law and Board decisions to assist in determining whether or not to controvert a claim for COVID-19, or whether, once controverted, a claim is likely to be established or disallowed. Our paper also provides recommendations should you receive a such a claim, and links for instruction on preventative measures.

Our white paper is available for download here. For any questions or concerns on this topic, please do not hesitate to contact our partnersMelanie M. Wojcik at (716) 854-1539 or David L. Snyder at (585) 568-8314.

Appellate Division Allows PPD Award to Continue After Death

On 3/5/20 the Appellate Division, Third Department decided Green v. Dutchess County BOCES. In what can only be described as an astonishing decision, the court held 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). We believe 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 this case, the deceased claimant had 38.8 weeks remaining on his PPD cap at the time of death. The deceased claimant’s son requested payment of those remaining 38.8 weeks. The Board held that the death resulted from non-causally related reasons, and that no permanent partial disability awards were payable after the date of death because the claim had abated. Claimant’s son appealed to the Appellate Division, arguing that the remaining weeks were payable pursuant to WCL § 15(4).
 
The relevant portion of WCL §15(4) states, "an award made to a claimant under subdivision three shall in case of death arising from causes other than the injury be payable to and for the benefit of [enumerated surviving relatives]." The court’s decision states, "Until now, we have not had the occasion to address whether any remaining portion or weeks of a nonscheduled permanent partial disability award is payable to the beneficiaries identified in [§15(4)] upon a claimant's death arising from causes other than the [established] injury."  (internal quote marks omitted).  
 
The court stated, "[§15(4)] neither distinguishes SLU awards from nonscheduled permanent partial disability awards, nor contains any limiting language excepting nonscheduled permanent partial disability awards from its scope." The court rejected the notion that upon a non-causally related death, there is no longer a causally-related reduction in wages attributable the nonscheduled permanent partial disability.  
 
We believe the court’s decision fails to correctly interpret the crucial word, “award,” in §15(4). For PPD claims, there can be no "award" of indemnity benefits without causally related lost time / lost wages. If there is no “award” then there is nothing to pay out under §15(4). The court’s decision appears to assume that capped permanent partial disability awards automatically become payable at the time of classification, which has simply never been the case.  
 
Over the years, the Appellate Division, and New York’s highest appellate court, the Court of Appeals, have issued many decisions stating that a claimant cannot receive indemnity awards in non-SLU cases for periods of lost time / lost wages that are not causally related to the established injury. See e.g..  Zamora v. New York Neurologic Assoc., 19 N.Y.3d 186 (2012); Burns v. Varriale, 9 N.Y.3d 207 (2007); Florentino v. Mount Sinai Medical Center, 126 A.D.3d 1279 (3d Dept., 2015); German v. Target Corp., 77 A.D.3d 1126 (3d Dept., 2010); Thompson v. Saucke Brothers Construction, Inc., 2 A.D. 3d 993 (3d Dept., 2003); Turetzky-Santaniello v. Vassar Brothers Hospital, 302 A.D. 2d 706 (3d Dept., 2003); Tisko v. General Aniline & Film Corp., 27 A.D.2d 619 (3d Dept., 1966); Roberts v. General Electric Company, 6 A.D.2d 43 (3d  Dept.,1958).

Unlike schedule of loss of use awards, which are payable regardless of whether the claimant has any lost time or lost wages, permanent partial disability awards have always been contingent on the claimant having lost time or lost wages causally related to an established injury. Even when a permanent partial disability award is under a direction for a carrier/employer to continue payment pursuant to Rule 300.23(c), such a direction does not mandate that the Board direct “awards” after a claimant’s death (in the absence of an established death claim). Rather, in the absence of an established death claim, the non-causally related death of a claimant has always been considered an ultimate and final severance of the causal nexus between the established work injuries and lost time/lost wages.
 
In support of its holding rejecting the requirement for causally related lost time/lost wages, the court highlighted a series of Board Panel decision's describing capped PPD awards as a "real benefit that vests with [a] worker upon classification." (Internal quote marks omitted). However, the manner in which the Board characterizes capped PPD awards in Board Panel decisions does not overrule well-established Court of Appeals and Appellate Division case law requiring causally related lost time / lost wages to support permanent partial disability "awards."  Astonishingly, the court’s decision does not cite, or in any way attempt to distinguish, any of its previous decisions referenced above, or the Court of Appeals’ decisions. The last several paragraphs of its decision suggest that the court's holding is based on a desire to avoid perpetuating what it perceives as unfair distinctions between schedule of loss of use and permanent partial disability awards, which it states the legislature aimed to eliminate with the 2007 statutory revisions. In support of this reasoning, the court cites language from the Court of Appeals’ decision in Mancini v. Office of Children and Family Services, stating that the 2007 statutory revision creating capped PPD awards modified PPD awards to be similar to schedule loss of use awards. While this is true in a general sense, the statutory revisions did not do away with the requirement for causally related lost time/lost wages for permanent partial disability awards, and until now, no legal authority has suggested that this requirement no longer exists. The only similarity between capped PPDs and schedule loss of use awards is that each uses a statutorily defined number of weeks. The legal eligibility requirements for PPD and SLU awards has always differed, and the body of case law surrounding these two types of awards acknowledges those differences. When the superficial layer of similarity is peeled back, capped PPD and SLU awards differ in significant substantive ways. It appears the court has mistaken a superficial similarity as a legislative mandate for wholesale judicial revision of the law governing a claimant’s eligibility for PPD awards.
 
The court’s decision includes language suggesting that a claimant's eligibility for permanent partial disability awards results from the mere act of classification with a permanent partial disability combined with the finding of a wage-earning capacity/loss of wage earning capacity. However, this is inconsistent with previous decisions from the court stating that the loss of wage earning capacity sets the duration of the cap for PPD awards, and that the wage earning capacity (as opposed to the loss of wage earning capacity) is a number which is used to determine the payment rate for non-working claimants. Rosales v. Eugene J. Felice Landscaping, 144 A.D.3d 1206, (3d Dep’t 2016); Till v. Apex Rehabilitation, 144 A.D.3d 1231 (3d Dep’t 2016). A non-waivable prerequisite for PPD awards has always been causally related lost time or lost wages.
 
It remains to be seen whether the self-insured employer in this case will seek leave to appeal to the Court of Appeals. 

Appellate Division Reverses Board's Jacobi Decision

On 02/20/2020, the Appellate Division, in Sanchez v. Jacobi Medical Center, reversed the Board's decision from a little over a year ago (Jacobi Medical Center, WCB #00825967 (02/11/2019)), which ruled that post-classification awards at total count towards the cap on permanent partial disability benefits. Jacobi was a favorable Board Panel decision for the defense bar because it allowed us to argue that awards following the claimant's classification with a permanent partial disability should be limited to the permanent partial disability rate and also argue that such awards always be subject to the cap on permanent partial disability benefits under WCL §15(3)(w).

InSanchez, the court noted that WCL §15 allows the claimant to be classified under one and only one of the four categories of disability (permanent total, temporary total, permanent partial, or temporary partial) at any given time. The court felt that the Legislature's silence on whether non-schedule awards for permanent partial disability should include preceding or intervening periods of temporary total disability was a purposeful legislative choice to not include any periods of temporary total disability in non-schedule awards. Accordingly, the court felt that the Board in Jacobi should have ruled that the duration of the claimant's permanent partial disability non-schedule award should have been tolled during the post classification award of temporary total disability benefits. The court also held that awards for temporary total disability after a PPD classification should be at the total rate. 

This decision leaves us with two rules moving forward: 1) post classification awards of temporary total disability do not count against the claimant's durational limit (cap) on permanent partial disabilities for awards on cases with a date of injury before 4/10/2017 and 2) the claimant can apply for reclassification of his or her disability status at any time.

Parenthetically, we note that it is our belief that the court’s decision does not impact the interpretation of the credit for temporary partial disability awards created for claims with dates of accident on and after 4/10/17 in WCL section 15(3)(w). Pursuant to the plain language of that statutory provision, all temporary partial disability awards made after 130 weeks of temporary partial payments in post-4/10/17 claims should be subject to a credit against the PPD cap.

Court Affirms in Three Decisions the Taher Rule that Claimant May Receive Both SLU and PPD in the Same Case at the Same Time

On 2/27/20 the Appellate Division, Third Department, decided Arias v. City of New YorkSaputo v. Newsday LLC, and Fernandez v. New York University Benefits. These decisions squarely hold that the Court’s previous decision in Taher v. Yiota Taxi is controlling, and that a claimant may receive both a schedule loss of use award and a permanent partial disability classification in the same case at the same time. It is unclear as of this writing if this decision will be appealed to New York’s highest appellate court, the New York Court of Appeals.

After the Appellate Division issued its previous decision in Taher, the Board and the workers’ compensation defense bar both took the position that it was incorrectly decided and should not be followed. The Court’s new decisions in AriasSaputo, and Fernandez. reject that argument. In particular, the Court rejected the argument that the 2018 schedule loss of use guidelines warrant departure from the Taher decision. The Court stated that language in the 2018 schedule loss of use guidelines requiring no residual impairment in the systemic area of the injury before a schedule of loss of use award can be made is ambiguous and therefore does not automatically require one form of permanent disability finding over another.

The take away from these decisions is that, for the time being, unless the New York Court of Appeals reverses them, claimants may receive both a schedule of loss of use award and a permanent partial disability classification in the same case at the same time, and may receive a lump-sum schedule loss of use award payment as long as they are not losing time or wages from work.

Court Rules that Reduction of Employer Reimbursement to Cover Attorney Fee in SLU Award Improper Because It Resulted in Windfall to Claimant

In Enoch v. New York State Department of Corrections and Community Supervision, decided by the Appellate Division, Third Department, on 1/30/2020, the Court ruled that the Board correctly allowed a carrier to reduce a claimant's schedule loss of use award by the amount of outstanding employer reimbursement remaining where there was sufficient money moving on the SLU to pay for both the claimant's attorney's fee and provide for the remaining reimbursement.

The court stated that “Continuing to reduce the employer's reimbursement credit by the counsel fee award after claimant received his schedule loss of use award would result in a windfall to claimant, essentially making the employer subsidize a portion of claimant's legal expenses."

The claimant in Enoch injured his right knee during a training activity and filed a workers’ compensation claim. While he was off work, the employer paid the claimant his regular wages and filed a claim for reimbursement of those wages with the Board. In 2017, the Board awarded the claimant benefits payable as a credit to the employer to partially reimburse it for the wages paid. The claimant's attorney was paid $700 as a lien on the employer's wage reimbursement credit.

A workers’ compensation law judge ("WCLJ") found that the claimant had a 20% schedule loss of use ("SLU") of the right leg and directed reimbursement to the employer for remaining wage reimbursement request. The carrier filed an Application for Board Review because the WCLJ reduced the employer's reimbursement credit by the amount of the previous $700 attorney fee.

The Board ruled that the employer was entitled to full reimbursement of wages paid at the time of the SLU award without any reduction for attorney fees. The Board modified the WCLJ's decision by directing that the fee be paid out of the claimant's portion of the SLU award.

The Appellate Division reasoned that when the Board initially made the award of counsel fees payable as a lien on the claimant's reimbursement credit, he was receiving temporary total disability payments, and the employer's reimbursement credit was limited to the amount of the payments and at that time, the employer' wage reimbursement was the source from which the attorney could be paid.

Once the claimant was awarded a SLU, however, there were sufficient funds from which the employer could receive full reimbursement of the wages paid to the claimant during his period of disability, leaving him with an excess from which counsel fees could be paid.

This decision from the Appellate Division ensures that employers will be able to secure full reimbursement of wages paid in lieu of compensation in most cases.

Court Affirms Genduso Decision Holding that SLUs Reduced by SLU Award to Same Limb, Even if Different Part of Limb

On 2/6/2020, the Appellate Division, Third Department, decided Johnson v. City of New York. This decision reaffirms the court’s previous holding in Genduso v. New York City Dept. of Education (2018) 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 squarely 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 facts in Johnson involved a claimant with an overall 80% loss of use for his left leg and an overall 40% loss of use for his right leg based on hip and knee injuries. The Board deducted a previous 50% schedule loss of use award for the left leg and a previous 52.5% schedule loss of use award for the right leg. This resulted in a functional 30% loss of use payable for the left leg and a 0% loss of use payable for the right leg. Claimant appealed, and the court affirmed, citing Genduso and Bell v. Glens Falls Ready Mix Co., Inc., holding that:

"SLU awards are . . . limited to only those statutorily-enumerated members listed in Workers’ Compensation Law §15(3) . . . In this regard, to authorize separate SLU awards for a body member’s sub-parts is not authorized by statute or the guidelines and would amount to a monetary windfall for a claimant that would compensate him or her beyond the degree of impairment actually sustained to the statutorily-enumerated body member." (Internal citations omitted)

The court also held that the Board properly deducted the previous schedule loss of use awards automatically from claimant’s overall schedule loss of use assessments.

The Johnson decision shows that Genduso is not an anomaly and will be applied by the court as controlling authority. The practical impact is that claimants can no longer receive separate schedule loss of use awards for multiple injuries to the same limb (knee and hip for the leg, shoulder and elbow for the arm, etc.). In such cases, the schedule loss of use would be payable only for a single leg or arm, respectively. Likewise, automatic deduction for previous schedule loss of use awards to the same body member applies even if the previous schedule loss of use award was for a different sub-part of that body member.

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

Copyright © 2020, Hamberger & Weiss LLP, All rights reserved.
You are receiving this email because you are a valued client of Hamberger & Weiss LLP
Our mailing addresses are:

Hamberger & Weiss LLP                  
1 South Washington Street       
Suite 500                               
Rochester, NY 14614

Hamberger & Weiss LLP
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
         
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