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H&W New York Workers' Compensation Defense Newsletter

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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
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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Suite 500
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 York, Saputo 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 Arias, Saputo, 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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H&W New York Workers' Compensation Defense Newsletter

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Happy New Year!

 

We here at Hamberger & Weiss LLP wish you a Happy New Year and hope that you have a pleasant and prosperous 2020!

 

Welcome to Lynn Forth, who Joins H&W as Special Counsel

 

We are pleased to announce that Lynn A. Forth (who many of you know) has joined us as Special Counsel in our Rochester office. Lynn brings over 25 years of experience in workers’ compensation defense to Hamberger & Weiss LLP. Lynn was selected as one of the “Top Women in Law” by The Daily Record in 2018 by virtue of her experience, litigation skills, and her mentoring of young women in the Rochester community. She is a frequent speaker and presenter at workers’ compensation seminars throughout the state. We are thrilled that Lynn has joined us and know that our clients will be as well. 

Please feel free to contact Lynn at 585-262-6397 or via email atlforth@hwcomp.com.  

 

Appellate Division Overrules Board’s 8-Page Limit on Appeals

 

On 12/12/19, the Appellate Division, Third Department, decided Daniels v. City of Rochester and Casamento v. Rochester Genesee Regional Transit Authority. These two significant decisions strike down the portion of the Board’s regulation requiring submission of an explanation for administrative appeal and rebuttal briefs exceeding 8 pages. These decisions are a breath of fresh air to both claimant and defense attorneys, who have long been vexed by the Board’s random application of this rule to dismiss administrative appeals and rebuttals. The 15 page outer limit to administrative appeal briefs and rebuttals remains in effect.  

The relevant portion of Rule 300.13(b)(1)(i), states: “unless otherwise specified by the chair, the appellant may attach a legal brief of up to 8 pages in length, ….  A brief longer than 8 pages will not be considered, unless the appellant specifies, in writing, why the legal argument could not have been made within 8 pages. In no event shall a brief longer than 15 pages be considered.”  

The court’s decisions inDaniels and Casamento hold that the Board failed to define a standard for how it would apply the page limit requirement, and that the initial limitation of briefs to 8 pages is unreasonable, arbitrary, and capricious, because there is no procedure for getting pre-authorization to file a brief exceeding 8 pages before the brief is actually filed with the Board. As such, it is impossible for counsel to know if their explanation will be accepted by the Board until it is too late. The court also held that the plain language of the regulation does not permit the Board to dismiss an appeal merely because the brief exceeds the page limits in the regulation.  

It remains to be seen whether the Board will seek leave to appeal to the Court of Appeals. 

Congratulations to our partner,Steve Wyder, who prepared the successful appeals to the Appellate Division.

 

First Cases Subject to 130 Week Temporary Partial Disability Credit Now Approaching Permanency

 

One of the major changes to WCL §15(3)(w) enacted by the 2017 workers’ compensation reform package was a provision allowing 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 eventual permanent partial disability award. Insurance carriers can get a credit for payment of temporary disability benefits paid beyond 130 weeks from the date on injury against the maximum benefit weeks that would be payable for permanent partial disability under §15(3)(w). This rule applies to all injuries with dates of accident or disability after April 9, 2017. 

As of this writing, more than 130 weeks have elapsed since 4/9/17, thus carriers and employers should keep an eye on cases in which permanency has not been determined to see if they can avail themselves of the credit. 

Although there are a number of interpretations floating around concerning the exercise of the credit, keep in mind that the Board’s interpretation is the one noted above, which is the most favorable interpretation for carriers and employers. This interpretation allows an insurance carrier or employer to apply the credit against capped PPD benefits for any temporary disability benefits paid—whether partial or total—beyond 130 weeks from the date of injury. It is not necessary that 130 week of benefits be paid before the credit is taken. 
 

 

Lower Settlement Costs Possible With Oxycodone-Acetaminophen Price Drop

 

Our readers familiar with workers’ compensation Medicare Set-Aside Arrangements (WCMSAs) know that certain medications can result in sky-high WCMSAs. Certain opioid medications carried per-pill prices of over $3.00, leading to cases that could not settle until the claimant was weaned from the expensive medications. One common opioid, oxycodone-acetaminophen (10-325mg) had a Medicare price of  $3.37/pill, but now is priced by Medicare at only $0.78/pill. 

The reduction in the price of this common opioid medication should allow settlement of cases previously unable to settle due to high medical costs. We recommend that our clients review their claims to find cases that were previously unable to settle due to the claimant’s use of oxycodone-acetaminophen and see if the WCMSA can be recalculated based on the new pricing. 

For any questions about how this reduction in CMS pricing can benefit your cases, please contact our partner,Dan Bowers. 

 

Board Notes Process Change for Objections to Administrative and Proposed Decisions Effective 2/1/2020

 

The Board announced a process change regarding objections to Administrative Decisions (ADs) and Proposed Decisions (PDs) that will become effective 2/1/2020. As of that date, any party wishing to object to an AD or PD must state their objection to the decision in the space provided on the AD or PD that is the subject of the objection. Additionally, the objecting party must note the WCB case number on the objection. 

The objecting party is not limited to the space on the form. If additional pages are necessary, they can be attached to the form. However, the objection must start on the form provided on the AD or PD in question. We recommend that those objecting to an AD or PD, list the basic reason on the form along with the WCB case number and then expand as needed with additional pages. 

The Board advises that the reason for the process change is that when the objection is not noted in the designated area of the AD or PD, it can be misrouted, leading to errors and delays. 

Please do not hesitate to contact any of ourattorneys for questions about the new AD or PD objection process.

 

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CMS Pricing for Generic Lyrica (Pregabalin) Now Under $1.00 per Pill

 

Pregabalin, the generic form of Lyrica, has dropped in price enough that its inclusion in a WCMSA is no longer a barrier to settlement. Our readers will recallthat we reported last year that CMS accepted the off-label use of Lyrica for pain or radiculopathy. At the time Lyrica was very expensive and a generic form of the drug was not available. That changed early this year with the availability of pregabalin, the generic form of Lyrica. However, at the time pregabalin became available, it cost nearly the same as Lyrica, and its inclusion in a WCMSA remained a barrier to settlement.

In the last month, the CMS pricing for pregabalin has dropped from over $8.00 per pill to under $1.00 per pill. In most cases, this means that inclusion of pregabalin should not be a barrier to settlement and we should be able to secure reasonable WCMSA approvals even when CMS includes this drug in the claimant’s WCMSA approval.

The Board’s new Drug Formulary permits use of Lyrica as a “Phase B” medication for use either upon acceptance or establishment of the claim or after 30 days from the date of injury. The Formulary lists Lyrica as a “second line” medication for injuries involving the back, CRPS, neck, or for treatment under the Non-Acute Pain Medical Treatment Guidelines. This means that the claimant must have an unsuccessful trial of a first line medication under the Medical Treatment Guidelines before trying Lyrica.

For any questions concerning the Drug Formulary, please contact our partner, Renee Heitger. For questions concerning the effect of pregabalin on a WCMSA please contact our partner Dan Bowers.

 

Some SLU Stipulations Require Additional Paperwork

 

Over the last year, practitioners have noted the Board’s resistance to stipulations concerning schedule loss of use where non-schedule body parts were also established on a claim, absent a provision in the stipulation that there were no residual deficits or further causally related disability connected with the non-schedule injury or condition. This marked a change in prior Board practice which generally allowed stipulations on schedule loss of use even where there were non-schedule body sites established on the claim.

In Subject Number 046-1211, the Board has outlined its expectations with respect to stipulations on schedule loss of use where a non-schedule site is established on the claim. The Subject Number describes a new form, the “SLU Stipulation Attachment,” which is to be used by parties stipulating to schedule loss of use where the claimant’s non-schedule injury may have residual permanent impairment or where the medical evidence says nothing about whether the claimant has a permanent disability of the non-schedule injury.

If the medical reports in the file say that the claimant does not have a permanent disability of the non-schedule injury, then the parties do not need to submit the SLU Stipulation Attachment with their stipulation.

In those cases where the medical evidence suggests a permanent disability of a non-schedule body part we expect the Board will carefully review the claimant’s answers to Question 5 on the SLU Stipulation Attachment, which asks the claimant to confirm that the claimant’s doctor doesn’t believe that the non-schedule injury affects the claimant’s ability to work, that there has been no surgery or post-surgical care involving the non-schedule body part(s) for the last 12 months, and that the claimant has not treated for the non-schedule body part(s) for the last six months. We suspect that the claimant’s answers to these questions will affect the Board’s decision to approve or deny the proposed stipulation.

The stipulation attachment also requires the claimant’s attorney to attest that he or she fully explained the impact of the proposed stipulation on the claimant’s non-schedule injuries, including the effect of the carrier’s credit on future indemnity related to the non-schedule injuries and any difficulties in reopening the claim to consider a worsening of non-schedule body parts.
Significantly, the SLU Stipulation Attachment states that if the Board approves the stipulation on schedule loss of use, that the Board will also enter a finding of “no further causally related disability at this time” with respect to the non-schedule sites or conditions. A finding of “no further causally related disability” is a powerful one for the carrier because it allows the carrier to force the claimant to provide proof of a change in condition before becoming liable for medical care or indemnity benefits.

We expect that the Board will deny stipulations for schedule loss of use in those cases where it feels that the claimant was not fully informed of the ramifications of agreeing to a SLU when that claimant also has non-schedule injuries.

Please do not hesitate to contact any of our attorneys with questions about the Board’s new SLU stipulation procedure.

 

Appellate Division Cases of Note

 

Volunteer Workers: Mauro v. American Red Cross

On 10/3/19, the Appellate Division, Third Department, decided Mauro v. American Red Cross. This decision holds that a person is not an employee of a charitable organization when he or she merely volunteers time working at that organization.

The claimant volunteered time for the American Red Cross as a “volunteer community ambassador.” The Red Cross is a non-profit charitable organization. After her injury, the claimant filed a claim, alleging she met the legal requirements to be considered an employee of the American Red Cross for workers’ compensation purposes. The claimant was an employee of another company, which encouraged volunteerism with charitable organizations. She received full salary from that employer while doing charitable work for the American Red Cross during work hours. The Court highlighted the fact that claimant received no monetary compensation or other form of financial or economic benefit from the American Red Cross in exchange for her volunteer activity. Based on these facts, the Court affirmed the Board’s finding that claimant was strictly a volunteer rather than an employee of the American Red Cross.

OD Claims: Barker v. New York City Police Department

On 10/3/19, the Appellate Division, Third Department, decided Barker v. New York City Police Department. This decision again shows that an occupational disease claim for repetitive use will not automatically be established simply because a treating doctor states the claimed injury is causally related to claimant’s work activities.

In this case, claimant alleged a repetitive overuse injury to her arms. The Board disallowed the claim, and the Court affirmed, stating “the record does not reflect that claimant’s medical providers had adequate knowledge of her work activities or medical history . . . consequently, neither claimant’s testimony nor the medical evidence was sufficient to establish a recognizable link between her shoulder injuries and a distinctive feature of her work, or that her shoulder injuries were attributable to repetitive movements associated with her work.”

This decision serves as a reminder that the defense of occupational disease claims merits special attention to confirm that claimant has met the legal requirements needed to establish an occupational disease, which include, among other things, proof of a “recognizable link” between the claimant’s alleged occupation disease and his or her employment. The claimant cannot establish this link if the evidence from the claimant’s medical providers fails to show adequate knowledge of the claimant’s job duties or medical history.

 

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Board Continues Drug Formulary Rollout

 

As we reported in our last issue, the Board’s Prescription Drug Formulary is live, and the Board is setting up the Prior Authorization system for the Drug Formulary. Stakeholders in the workers’ compensation system should be aware of the need to set up contact information with the Board, the 12/5/19 transition to use of the Drug Formulary for new prescriptions, the requirement to notify providers and claimants about the transition to the Drug Formulary, and the Formulary’s treatment of narcotic/opioid medications. 
 
Board Requests Contact Information from Payers
 
The Board has asked payers (insurance carriers, self-insured employers, and third-party administrators) to identify contacts for their organization as well as provide an electronic mailbox for each. To do this, each organization must go to the Board’s Drug Formulary Administration webpage and enter their Level 1, Level 2, and Order of the Chair contacts for their organization. Please note that the requirement for Order of the Chair contacts is not included in the Drug Formulary or the regulation that incorporates it, but it is noted on the Board’s Drug Formulary Administration webpage.
 
Recall that Level 1 review is an internal review conducted by the payer. The Board requests that the Level 1 review contact information be an email address of the insurance carrier, TPA, or Pharmacy Benefit Manager (PBM), if designated. Level 2 review is the insurance carrier’s physician as defined in the Drug Formulary regulations. Thus, the contact information here should be that physician’s email address. Finally, the “Order of the Chair” contact information should include an email address for both the claim administrator and the insurance carrier. 
 
New Prescriptions After 12/5/19 Must be for Drug Formulary Medications
 
Payers should be aware that as of 12/5/19, any new prescription from a provider must be for a Drug Formulary medication. If the provider wants to prescribe a non-formulary drug, that provider must obtain prior authorization from the payer before writing the prescription. A “new prescription” is a prescription for a drug that the claimant is not currently taking, and this includes different drug strengths or frequencies of drugs that the claimant is taking prior to 12/5/19 
 
Refills and Renewals of Drugs – Payer Notification Requirements and the 6/5/20 Deadline
 
Payers are required to notify medical providers and claimants no later than 12/5/19 whether any drugs a claimant is currently being prescribed are not on the Drug Formulary. The Board has provided form letters for notification to claimants and providers showing the format of the notification that it requires. 
 
On or after 6/5/20, all refills or renewals of prescriptions must use a Drug Formulary medication unless the payer has given prior authorization to the provider before the date of the refill or renewal. A refill is defined as any subsequent fill of a prescription when the number of refills is explicitly included in the original prescription. A renewal is defined as a prescription that the claimant has been taking but for which there are no available refills.
 
Narcotics and Opioids 
 
Recall that the Drug Formulary does not include narcotic or opioid medications after the first 30 days from an injury (with the exception of the perioperative period as defined in the formulary). Moreover, on or after 12/5/19, the provider may only prescribe up to a single seven-day supply of a narcotic or opioid in the first 30 days following an injury. The Board also expects providers and claimants plan for a transition from narcotics/opioids to a Drug Formulary medication before 6/5/20. Should such a transition not be medically appropriate, the provider should obtain prior authorization of a refill or renewal of the narcotic/opioid before 6/5/20. 
 
For a refresher on the changes coming with the Drug Formulary, please review our prior article and the Board’s Subject Number 046-1198. For any questions about the Drug Formulary, please contact our partner, Renee Heitger. 
 

 

Board Continues Program to Replace C-4 Forms with CMS-1500

 

The Board continues its initiative to replace the C-4 family of forms with the CMS-1500 form, as we have reported in the past. The Board has held webinars, released a training video, and published FAQs for stakeholders to review and familiarize themselves with the new procedure. Those publications are available on the Board’s website here.
 
Most claims decisions after full implementation of the CMS-1500 initiative will depend on the health provider’s narrative report, for which the Board provides its expectations on its website. We expect that there will be some “growing pains” as the New York workers’ compensation community moves from the “check the box” C-4 forms to the need for detailed narratives. Our clients should remember to review future medical narratives carefully because defenses to a claim for benefits may arise based on omissions in the medical narrative, such as the failure to indicate a claimant’s degree of disability. 
 

 

Section 32 Agreements Now Require Additional Paperwork for Electronic Signatures

 

Over the summer, the Board introduced a new process for electronic signatures on Section 32 settlement agreements. The Board created a new form, the C-32E, which is used by insurance carriers, self-insured employers, and third-party administrators who provide an electronic signature on a Section 32 agreement. When the payer electronically signs a Section 32 settlement agreement, the person signing the agreement must also complete the new Board C-32E form and submit it with the Section 32 agreement that has the electronic signature. The Board will return unprocessed any Section 32 settlement agreements with an electronic signature that do not have form C-32E attached. 
 
For answers to your questions about the Board’s new electronic signature process, please contact our partner Nicole Graci. 

 

Appellate Division Cases of Note

 

On 6/27/19, the Appellate Division, Third Department, decided Ferguson v. Eallonardo Construction, Inc.  This decision reaffirms the principle that both claimants and carriers have the right to cross-examine the opposite party’s medical professional as long as a timely request is made regardless of whether they have contrary medical evidence. In this case, the Board held that claimant’s counsel waived any right to cross-examine the carrier’s IME consultant by not producing a timely contrary medical opinion. The court held that the right to cross-examine the opposing party’s medical professional is not conditioned on production of a contrary medical opinion. The only requirement is a timely request for cross-examination. The court held that a request to cross-examine an opposing party’s medical professional on permanency is timely when it is made at the first hearing addressing permanency. The court reversed the Board’s decision and remanded for further proceedings.   
 
On 8/1/19, the Appellate Division, Third Department, decided Donald Marcy v. City of Albany Fire Department. This decision reaffirms the well-established rule that a claimant is not automatically entitled to reduced earnings awards merely because he or she is working and earning less than their average weekly wage. If the reduction in earnings is caused by economic factors or any other reason unrelated to the work injury, the reduction in earnings is not causally related, and claimant is not eligible for reduced earnings awards. In this case, claimant testified that he worked 5 hours per week from home as a salesperson for a wooden boat manufacturer telephoning prospective clients and distributing advertisements. He earned $50.00 per week. Claimant testified that he worked all the hours his employer had available for him. He later tried to assert that his limited hours resulted from a part-time work restriction recommended by his doctor. The Board found claimant ineligible for reduced earnings awards, finding that his reduction in wages resulted from economic factors since his employer only had a few hours of work each week for him. Claimant appealed, and the Appellate Division affirmed. This decision serves as a reminder that claims for reduced earnings must receive close scrutiny to determine if the claimant is actually eligible for awards. Merely earning less money than the average weekly wage by itself is not enough.  
 
On 7/3/19, the Appellate Division, Third Department, decided Verneau v. Consolidated Edison Co. of New York, Inc. This decision reaffirms prior precedent holding that there is no bar to WCL §25-a relief for death claims after the 1/1/14 cutoff date, as long as the original injury that resulted in death was transferred to the Special Funds under §25-a before the 1/1/14 cutoff date. This decision serves as a reminder than close scrutiny must be given to death claims to determine if a claim for §25-a may be made. The mere fact that the 1/1/14 cutoff date has passed is not a bar to all claims for §25-a transfer. This category of death claims is a small subset of claims for a §25-a transfer can still be requested under appropriate circumstances.

 

Proposed Amendments to 300.13 and 300.14 Will Make Applications for Reopening or Rehearing More Difficult

 

The Board has proposed changes to Rules 300.14 and 300.13 that will, according to the Board “clarify the process regarding the reopening of a previously closed claim.” In practice, the adoption of these proposed regulations will make it more difficult to obtain a reopening under Rule 300.14.  Under the proposed rule changes, an application for reopening under Rule 300.14 must demonstrate that the application is “in the interests of justice” and it must also comply with the formatting rules for Applications for Board Review described in Rule 300.13. Additionally, any application under the proposed regulations must also show 1) that material evidence is now available that was not available at the time the issue was resolved in the prior decision; or 2) proof of a change in condition material to the issue is involved. 
 
The proposed rule change also sets a 30-day time limit on the filing of the application for reopening. According to the proposed regulation, the 30 days is measured from the date the applicant has knowledge of the material evidence or proof of change of condition upon which the application is made. The Board will require applicants requesting a reopening based on newly discovered material evidence to provide a sworn affidavit explaining why the evidence was not available when the issue was previously resolved, describing when and how the material evidence was obtained, and setting forth the administrative relief requested. For applications for reopening based on a change in condition, the application must provide a medical report, on a form provided by the Chair, based on an examination after the closing of the case, stating objective findings, and explaining how and when the condition changed. As of this writing the Board’s proposed form is not available. 
 
The proposed regulations also prohibit an application for reopening or rehearing when the claimant’s cap on permanency benefits under §15(3)(w) has run out (unless, presumably, benefits continue under an extreme hardship redetermination or reclassification with a permanent total or total industrial disability), where an application for reopening was previously denied, or where an application for full Board review has been denied with respect to the same issue. 
 
For further details and the text of the proposed regulation changes, please see the Board’s website here. Comments on the proposed rule changes will be accepted until 11/10/19. Comments should be submitted via email to regulations@wcb.ny.gov. 

 

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H&W New York Workers' Compensation Defense Newsletter
Vol. 3, Issue 8

Board Enacts Prescription Drug Formulary – Effective 6/5/19!

The April 2017 WC reform legislation, §13-p, required the Board to “establish a comprehensive prescription drug formulary on or before 12/31/17.” At last, effective 6/5/19, the Board has adopted the finalizedDrug Formulary and proposed regulations, Part 441 of Title 12 of the NYCRR. The Board did not notify stakeholders by Subject Number, as would be expected with a significant regulatory change. Instead, the Board updated the “Health Care Information” section of its website to include a link to the Formulary and regulations.
 
Effective Date and Notice Requirements
 
Within six months of the 6/5/19 effective date, all new prescriptions must comply with the formulary, and within twelve months, all refills and renewals must comply. Also within six months of the effective date, Carriers and Self-Insured Employers (SIE) must identify all claims that have a current prescription for a Non-Formulary drug and, on a format prescribed by the Board, provide written notification to claimants and treating providers.  The regulation does not require notice to Claimant’s counsel.
 
Carriers and SIEs must provide the Board, in the manner prescribed by the Chair, correct and complete contact information for the first and second level review levels within 30 days of the effective date, (6/5/19).  Failure to provide the information within 6 months of the effective date, or failure to update the information upon a change, could subject Carriers and SIEs to Orders of the Chair and penalties. The due date for providing this information to the Board is Thursday, 7/4/19.
 
Prior Authorization and Formulary Drugs

Formulary drugs do not require prior authorization if prescribed in accordance with the Formulary. Of note, there are two significant special considerations. The first is designated in the formulary as “#1” and states that certain drugs are not to exceed a 7 day supply.  These drugs include opiates, anti-anxiety medications, and muscle relaxants. Special consideration “#2” allows for the medication to be prescribed for the full course of treatment, (e.g. penicillin and anti-infectives).
 
There are three lists of drugs in the Formulary and detailed in Rule 441.4. Phase A are drugs that can be prescribed within 30 days of the accident or until a case accepted or established, for up to 30 days, except that controlled substances and muscle relaxants can only be prescribed for up to 7 days, and anti-infectives can be prescribed for the recommended course. Phase B drugs can be prescribed 30 days post accident or once the case is accepted or established, whichever occurs first, for up to 90 days and in accordance with Medical Treatment Guidelines (MTG) as applicable. Phase B formulary drugs allow for 2nd line drugs designated as “2nd” and only after a trial of 1st line drugs in accordance with Formulary.  Perioperative drugs are those prescribed during the period 4 days before and 4 days after claimant goes to hospital, clinic or doctor’s office for surgery, with day of surgery being day 0. These drugs include analgesics (non-topical), one anti-convulsant (Gabapentin) and anti-inflammatories.
 
The prior authorization process is detailed in Rule 441.5.  The treating provider must request authorization before prescribing or dispensing:
 
  • Phase A, B or Perioperative drugs other than as set forth in these regulations;
  • Brand name drugs if a generic equivalent available, even at different dosages and strength;
  • Any Non-Formulary drug;
  • Any Compound drugs;
  • Formulary drugs in an accepted or established case in a manner inconsistent with the MTG if applicable.
 
Carriers and SIEs may deny payment if the treating provider did not request prior authorization when it’s required.  If a case apportioned between multiple files, the treating provider must request prior authorization of each Carrier and SIE.
 
For the first level of review, the request cannot exceed 365 days, and if no limit is mentioned, the default is 30 days. Carriers and SIEs have4 calendar days to respond.  This level need not be reviewed by a medical doctor, and can be approved, denied or partially approved. Specific reasons are required for denial or partial approval.  A denial or partial approval must also provide information on how to request review from the Carrier’s Physician.  The lack of a timely and proper reply subjects Carriers and SIEs to an Order of the Chair and eliminates the option of objecting to payment of the drug without risk of penalty.
 
A treating provider may request a second level review within 10 calendar days of denial or partial approval.  Such request must include information responsive to the denial or partial approval. This request is made to the designated contact (Carrier’s Physician who must be a licensed physician). The Carrier’s Physician has4 calendar days to approve, partially approve or deny.  The failure to timely and properly reply subjects Carriers and SIEs to an Order of the Chair and eliminates the option of objecting to payment of the drug without risk of penalty.
 
The third level review is the final level for the treating provider, Carriers and SIEs. It must be filed by the treating provider within 10 calendar days of a denial or partial approval.  It must be submitted to the Medical Director’s Office (MDO) in format to be prescribed by the Chair, with all documentation in support of the requests and both levels of denials or partial approvals. The MDO decision is final and binding, and not appealable, except the claimant may request review by filing an RFA that demonstrates the drug is medically necessary and denial adversely impacts the claimant’s interests.  The Board may respond by letter or make a referral to adjudication, and such decision is binding and not appealable.  It remains unclear if this means the letter, the referral, the result of adjudication or all are binding and not appealable.
 
If prior authorization is denied on the merits, no new request can be submitted absent evidence of a change in condition which renders the prior denial no longer applicable.
 
All communication must be by electronic delivery unless the treating provider certifies that his/her office is not equipped for such delivery.
 
Concluding Notes 
 
The Formulary is to be updated at least annually.
 
The Medical Treatment Guidelines prevail if there is a conflict with the Formulary unless the drug is prescribed in accordance with Phase A or B of Formulary.
 
It does not appear that any of the forms referenced in the Formulary or regulation have yet been promulgated.  For further information concerning the Pharmacy Formulary, please contact our partnerRenee Heitger.

Appellate Division Rules that PPD Claimant not attached to Labor Market before Statute Change Must Demonstrate Attachment to Labor Market for Awards

On 5/30/19 the Appellate Division, Third Department decided Scott v. Visiting Nurse Services.  This decision holds that the 2017 labor market attachment statutory amendment to WCL §15(3)(w) does not apply retroactively to claimants who have already been found not attached to the labor market before the amendment took effect.
 
This case involved a permanently partially disabled claimant classified in 1998, who was eligible for awards at the time of classification. In 2014, the carrier re-opened the claim on labor market attachment, and the Board found claimant not attached in a 6/27/16 Board Panel Decision.  After the new statute took effect in April, 2017, claimant re-opened the claim and requested awards, arguing that the new statute removed her obligation to demonstrate ongoing attachment to the labor market.  The Board denied her request, citing the previous finding that she was not attached before the new statute took effect.  Claimant appealed to the Appellate Division.  The court held that nothing in the statute or its legislative history suggests that it was intended to retroactively apply in cases where a claimant has already been found not attached to the labor market before the statute took effect.

New Regulations Proposed for New Provider Law

As we reported in April 2019, the Workers’ Compensation Law was revised to expand the types of medical providers authorized to treat injured workers. Authorized providers now include nurse practitioners, physician assistants, occupational therapists, physical therapists, acupuncturists, and licensed social workers. The expanded list of providers will become effective 1/1/20.
 
To implement the new law, the Board has proposed a new regulation that describes the process for applying for Board authorization to treat injured workers. The Board has also proposed amendments to the regulations concerning the prior authorization and variance processes in the Medical Treatment Guidelines to integrate the new provider types.
 
Stakeholders have until 8/18/19 to submit comments on the proposed regulations viaregulations@wcb.ny.gov.

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Analysis of Board's REVISED Draft Pharmacy Formulary and Regulations

We invite you to read our white paper with our summary and analysis of the Board's revised proposed formulary. In the paper, we provide a number of recommendations for changes to the proposed regulations and formulary.

On 10/17/18, in Subject Number 046-1112, the Workers' Compensation Board released revised draft regulations and a revised proposed pharmacy formulary for public comment. Our readers will recall that the April 2017 workers’ compensation reform legislation required the Board to “establish a comprehensive prescription drug formulary on or before” 12/31/17 (WCL §13-p). Any comments concerning the drug formulary must be submitted on or before 11/16/18 via email toregulations@wcb.ny.gov. 

Please contact our partner,Renee Heitger with any questions concerning this topic.

Contact Us

Hamberger & Weiss LLP - Buffalo Office
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Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

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

 

H&W New York Workers' Compensation Defense Newsletter

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Board Releases Revised Pharmacy Formulary and Accompanying Regulations

 

The Board has finally released its revised pharmacy formulary regulations for public comment. Our readers may recall that we published awhite paper with our summary and analysis of the proposed formulary in February 2018. The revised formulary does away with the earlier classification of drugs as “preferred” and “non-preferred.” Instead, it classifies the availability of prescriptions depending on the status of the claim (accepted/established or controverted) and the length of time that has passed from the date of injury. The proposed regulations allow for a process of prescribing and dispensing drugs to claimants even where the claim is controverted or where liability has not been established against the carrier. There is no specific requirement that carriers and self-insured employers would then have to pay for the drug if the claim is controverted, but the implication is there. If that is the case, this echoes the Board’s initiative during the eClaims rollout directing carriers and self-insured employers to begin payment of indemnity even in the absence medical evidence of causal relationship. Other regulations regarding treatment issues specifically state that the carriers and self-insured employers are not liable for payments until and unless the claim and condition is established. We would have preferred to see similar language.
 
The proposed regulations also eliminate hearings and appeal rights in connection with prescription drug benefit issues. Proposed Rule 441.5 and 441.6 of the proposed regulations discuss the prior authorization process that providers must follow for drugs that are not authorized under the formulary. This prior authorization process allows the carrier to conduct the first two levels of review of a provider’s request. If the carrier denies or only partially approves a prescription, the provider can only seek review through the Board’s Medical Director’s Office, whose decision on the matter will be final, binding, and not appealable under WCL Section 23. A claimant may request review of the Medical Director’s decision but the Board has the discretion to respond to a claimant’s request for review via letter or via adjudication. If the Board elects to have the claimant’s request reviewed through adjudication, this is the only circumstance where a claimant may have a prescription review issue heard by a WCLJ. There is no provision by which a carrier or self-insured employer can request review via adjudication. Although there is a streamlined review process outside of the hearing system, carriers and self-insured employers only have 4 calendar days to conduct first level review, unchanged, unfortunately, from the prior proposed regulations.  The provider then has 10 days to seek a second level review by a “Carrier’s Physician.” The carrier’s or self-insured employer’s physician then only has 4 calendar days to approve, partially approve, or deny the request. Failure on the part of the carrier or self-insured employer to meet these deadlines will likely result in default authorization of the prescription.
 
The revised formulary, like the first draft of the formulary, curtails the prescription of narcotics or opioid medications after the first 7 days from the date of injury, except for prescriptions during the “perioperative” period (four days before and four days after surgery). The proposed revised regulations also clarify a question we raised in our white paper about a conflict with the Medical Treatment Guidelines. Under the revised regulations, in the event of a conflict between the formulary and the Medical Treatment Guidelines, generally the Medical Treatment Guidelines shall prevail.
 
The proposed regulations were published in the 10/17/18 State Register and comments on the revised proposal will be accepted until 11/16/18 via email toregulations@wcb.ny.gov. We will publish a white paper with a more extensive analysis and our recommendations for comments on the proposed regulations soon.  

 

Lyrica Now Included by CMS in WCMSAs

 

Lyrica (pregabalin) is an FDA approved medication for treatment of epilepsy, diabetic neuropathic pain, post-herpetic neuralgia, fibromyalgia, and other neuropathic pain. However, it is widely used off-label for treatment of chronic pain and, in some cases, anxiety disorder. Historically, the CMS Workers’ Compensation Review Contractor (WCRC) has excluded Lyrica from Workers’ Compensation Medicare Set-Aside Arrangements (WCMSAs) when prescribed for pain or radiculopathy. Recently, however, the WCRC has included Lyrica in some WCMSAs, citing the acceptance in the medical community for this off-label use.

The downside of this for our clients is that Lyrica remains very expensive and inclusion of this medication in a WCMSA will drive up the cost of settlement. Our clients should consider strategies to eliminate coverage of Lyrica in their cases that are approaching settlement to avoid the need to include this in a WCMSA. These strategies may include use of the Medical Treatment Guidelines, IME Review of medical necessity, or negotiation with the claimant for consideration of other medications. Additionally, we note that the revised draft pharmacy formulary published on 10/17/18 permits use of Lyrica as a “Phase C” medication for use either upon acceptance or establishment of the claim or after 30 days from the date of injury. It is noted as a “second line” medication for injuries involving the back, CRPS, neck, or for treatment under the Non-Acute Pain Medical Treatment Guidelines. This means that the claimant must first have an unsuccessful trial of a first line medication under the Medical Treatment Guidelines before being prescribed Lyrica. For questions about how to address this and other medication issues in your WCMSAs, please contact our partnerDan Bowers. 

 

Appellate Division Cases of Note

 

Grover v. State Insurance Fund

On 10/4/18, the Appellate Division decidedGrover v. State Insurance Fund, affirming a Board Panel finding that a claimant injured in the public section of a parking garage did not experience an injury arising out of and in the course of employment even when the employer paid for claimant’s parking and encouraged its employees to park in a designated section of the garage set aside for them. The majority in this split decision relied on the fact that the injury occurred in a public section of the garage rather than the location designated for the employer’s personnel to park, such that all members of the public shared the same risk of potential injury in the location of claimant’s accident.
 
Two dissenting judges disagreed and would have reversed the Board Panel’s decision, stating they believed these facts established a compensable claim as a matter of law under the Court’s prior decision inThatcher v. Crouse-Irving Memorial Hospital, 253 A.D.2d 990 (3d Dep’t 1998), leaving no discretion for the Board to find otherwise. Because two judges dissented in this decision, the claimant has an automatic right to appeal to New York State’s highest Appellate Court, the New York Court of Appeals. The claimant’s attorney has indicated he will likely perfect an appeal to the Court of Appeals. Assuming the claimant does so, a decision can be expected sometime next year on this case.
For questions about this decision, please contact our partner, Joseph DeCoursey, who litigated the case and wrote the appeals for the carrier.
 
Haven v. F & F Custom Construction Inc.

On 10/11/18, the Appellate Division decidedHaven v. F & F Custom Construction Inc.  This decision reaffirms the Court’s holding inParody v. Old Dominion Freight Line, 157 A.D. 3d 1118 (2018), which we reported on in January 2018.  Parody held that the Board may apply the medical evidence in the record to the schedule loss of use guidelines to determine its own schedule loss of use assessment even if that assessment differs from the schedule loss of use opinions given by the doctors in the record. This is now the second decision in which the Court has applied this rule, confirming thatParody was not an anomaly. These decisions can be used by our clients to their benefit in those cases where a claimant’s physician gives a clearly erroneous SLU opinion under the Board’s Impairment Guidelines. For example, if a physician opines an SLU higher than that contemplated by the tables in the Impairment Guidelines, the carrier could simply argue for the correct SLU finding under the Impairment Guidelines, using the physician’s own range of motion findings instead of obtaining an IME. These decisions allow the WCLJ to find a SLU supported by the record instead of being stuck with the ultimate SLU opined by the physician.

 

Clarification on Genduso Decision

 

Last month we reported on the Genduso decision from the Appellate Division, Third Department. We received some comments and questions about our article, specifically on whether we felt the case was wrongly decided. Our answer is, simply put, no. The case is a benefit to employers and carriers and we feel it was correctly decided. The Board and Appellate Decision inGenduso allowed the carrier to credit prior schedules for loss of use of a leg (SLU) against a new leg SLU. Although we noted in our headline that the Board was allowing a carrier to credit a prior ankle injury against a new leg SLU, that prior ankle SLU was never awarded as a foot SLU, instead the claimant received a leg SLU which contemplated his injuries to the ankle. The Court’s decisions allowing a carrier to credit a prior leg SLU against a new leg SLU is not unusual in current practice.

However, we believe that the Court’s statement that “[n]either the statute nor the Board’s guidelines list the ankle or knee as body parts lending themselves to separate SLU awards” is incorrect because the Board’s Impairment Guidelines for determining SLU provide separate schedule loss of use calculations for injuries involving knees and feet. Ankle injuries are generally analyzed as foot schedule loss of use awards rather than leg awards. As such, the Court’s statement suggests a misreading of the Board’s Impairment Guidelines.

 

Virtual Hearings Now Available in All Districts except Queens, Newburgh, and Allegany

 

The Board’s virtual hearing system is nearly available Statewide, with only 3 hearing sites (Queens, Newburgh, and Allegany) not yet active. The system continues to be met with mixed reviews by participants, but it is clearly here to stay. Hamberger and Weiss LLP is available to represent our clients at a virtual hearing where virtual hearings are available.

 

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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H&W New York Workers' Compensation Defense Newsletter
Vol. 3, Issue 3

Court of Appeals Corrects Standard for Permanent Total Disability

On 9/6/18, New York State’s highest Appellate Court, the New York Court of Appeals, decidedWohlfeil v. Sharel Ventures.  This decision unanimously reverses an 11/16/17 Appellate Division decision which held that a claimant is permanently totally disabled unless he or she can engage in “gainful employment, not some undefined type of limited sedentary work.”  This decision by the Court of Appeals returns the standard for determining permanent total disabilities to what we believe is the correct standard, where a claimant is not permanently totally disabled if there is any form of work in the labor market he or she can physically perform.  (This standard is separate from and should not be confused with the standard for statutory permanent total disabilities.)

Appellate Division Allows Credit of SLU Assigned to Ankle Against Knee SLU

On 9/6/18, the Appellate Division, Third Department, decided Genduso v. New York City Department of Education.  This decision is notable primarily for what we believe to be an error by the Court in describing how schedule loss of use awards are assessed for ankle injuries. 

Claimant had a few claims involving injuries to his right leg: one for the ankle and two for the knee.  He received multiple schedule loss of use awards for the right leg over the years.  In 2013, claimant injured his right knee again and filed a third knee claim.  Claimant’s treating physician opined a 40% schedule loss of use award for the right leg based on the right knee injury in that case.  The Board awarded a 40% loss of use for the right leg, but deducted the previous 20% and 12.5% schedule loss of use awards from the claimant’s other two claims, resulting in a net 7.5% increased loss of use to the right leg. 

Claimant appealed to the Appellate Division, arguing that one of the previous loss of use awards was for a right ankle injury, separate from the right knee involved with his current case.  Based on this, claimant argued that only the previous schedule loss of use awards attributable to right knee injuries should be deducted from his 40% SLU attributable to the right knee.  The Court disagreed, stating that, “Neither the statute nor the Board’s guidelines list the ankle or the knee as body parts lending themselves to separate SLU awards.”  The Court reasoned that a schedule loss of use award for the leg is a schedule loss of use award for the leg regardless of what particular part of the leg is injured. 

We believe the Court’s statement that “Neither the statute nor the Board’s guidelines list the ankle or knee as body parts lending themselves to separate SLU awards” is incorrect because the schedule loss of use guidelines (all three versions) provide separate schedule loss of use calculations for injuries involving knees and feet.  Ankle injuries are generally analyzed as foot schedule loss of use awards rather than leg awards.  As such, the Court’s statement here seems to reflect a misreading of the Board’s schedule loss of use guidelines.  Additionally, the Court’s decision appears inconsistent with the New York Court of Appeals holding inZimmerman v. Akron Falls Park, 29 N.Y.2d 815 (1971).  The Zimmerman decision, issued by New York’s highest Appellate Court, states that a claimant can receive multiple schedule loss of use awards for a limb totaling greater than 100% as long as each award involves separate injury sites which have no impact on each other.  The facts in that case involved a loss of use award to the left arm based on a shoulder injury, and a separate loss of use for a previous amputation to the left forearm.   There appears to be no material distinction between these two cases.

Appellate Division Reminds Board that Excusal of Late Notice is Discretionary

On 9/6/18, the Appellate Division, Third Department, decided Taylor v. Little Angels Head Start.  This case involved a carrier’s defense against a claim based on untimely notice.  It is well known that there are many reasons the Board may invoke to excuse a claimant’s failure to provide timely notice, and the Board regularly does so.  Nonetheless, the Court here highlighted the fact that excusing untimely notice is discretionary.  The Court stated, “The Board is not required to excuse a claimant’s failure to give timely written notice even if [a ground for excusal] is proven; the matter rests within the Board’s discretion.”  As such, even when the record contains evidence allowing for excusal of untimely notice, an argument can be made in appropriate cases that the Board should decline to exercise its discretion to do so.

Contact Us

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

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

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