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New York

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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.

 

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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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.

 

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


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. 

 

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. 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.

Contact Us

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

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Hamberger & Weiss LLP - Buffalo Office
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Buffalo, NY 14202
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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.

 

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

Hamberger & Weiss LLP - Rochester Office
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.

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Buffalo, NY 14202
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Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

 

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Full Board Reverses Panel Decision That Provided Exception toDelta Airlines Attachment Decision

 

One year ago we reported on the Board Panel decision in Barbella Environmental Tech, which provided an exception to theDelta Airlines ruling on labor market attachment. The ruling deemed claimants who were still employed by the employer of record to be attached to the labor market without the need to produce proof of same as required by theAmerican Axle decision. The Barbella Board Panel decision narrowed the ruling in cases like Delta Airlines, finding that only in cases where there is objective medical evidence that the claimant could return to work with the employer of record and where the claimant has a realistic expectation to return to work with the employer is the claimant relieved of the need to prove labor market attachment.

The Full Board reviewed the Barbella decision earlier this year and reversed the Board Panel decision inBarbella. The Full Board decided not to adopt the two-pronged test created by theBarbella panel’s majority and unfortunately affirmed the rule that a claimant has not voluntarily withdrawn from the labor market where the claimant continues to be employed by the employer and the medical evidence in the record establishes that a claimant is unable to return to work.This decision will make it more difficult to defend against indemnity benefits in claims where a claimant remains “on the books” with the employer of record.

 

Still No Word on Pharmacy Formulary

 

At the end of last year, the Board announced draft regulations for a proposed New York State Pharmacy Formulary. WCL §13-p, which became law in April 2017, required the Board to "establish a comprehensive prescription drug formulary on or before" 12/31/17. To date, we have only seen a draft formulary and the proposed rules published in December 2017.In February 2018, we published an extensive white paper with our summary and analysis of the proposed formulary and regulations. Among other things, we believed that the proposed pharmacy formulary would result in lower costs for employers and carriers.

The proposed formulary was supposed to become effective 7/1/18, but our review of the State Register shows that the proposed regulations were never finalized. The Board has been silent regarding the formulary and seemingly is violating its statutory requirement to “establish a comprehensive prescription drug formulary on or before” 12/31/17. WCL §13-p.

 

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

Hamberger & Weiss - Rochester Office
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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. 3, Issue 1

Board Announces Initiative to Replace C-4 Family of Forms with CMS-1500

The Board announced earlier this month that it will replace the C–4 family of forms (with the exception of the C-4.3 permanency evaluation form) with theCMS–1500 form.Board Subject Number 046-1079 describes technical specifications for the rollout and states that it will occur in 3 phases, the first of which will commence on 1/1/19. On that date, providers may begin voluntary transmission of CMS –1500 bills through an approved Board electronic clearinghouse and payers will also be expected to accept electronic receipt of same. On or about 1/1/20, the Board willrequire use of the electronic CMS–1500 billing form through its clearinghouse. Because the CMS-1500 form does not have the space on it for providers to write a history, opinion on causal relationship, or opinion on degree of disability, the Board will require providers to attach a narrative that includes this detail. The Board has provided a website outlining the CMS–1500 initiative which discusses the requirements it expects providers to adhere to in compiling narratives to attach to their billing forms in order to assist in the management and adjudication of claims.
 
In addition to the expected requirements of a history of the injury, a diagnosis, and an opinion on causal relationship, the Board also demands detail from the health provider concerning the specific functional work activities or activities of daily living that the patient cannot perform as a result of the injury or illness. This is another example of the Board’s continued emphasis on function as a significant factor in assessing impairment. We hope that the Board will enforce these requirements by supporting payer bill denials for inadequate narrative descriptions. We recommend that our clients carefully review the narrative submissions from providers and deny those bills with narratives that fail to adhere to the standard when the program goes live next year.
 
Providers can no longer simply “check the box” in order to provide an opinion on causal relationship. In addition to stating whether the incident described by the patient was the competent medical cause of the injury or illness, the provider must also indicate whether the complaints are consistent with the history provided and whether the history is consistent with the objective findings noted on examination. Of note, the Board’s recently revised C-4.3 Form will not be eliminated by the CMS-1500 initiative. Providers will still be expected to fully complete the C-4.3 Form to render a valid opinion on permanency.
 
There is a potential loophole for providers that wish to avoid the Board’s narrative attachment requirements. The CMS-1500 requirements website states that physicians can include page 2 of the Doctor’s Progress Report (Form C-4.2) “as an optional attachment with the CMS-1500 and medical narrative to provide concise information on the Doctor's Opinion and Return to Work.” It is unclear to us whether this means page 2 of the Form C-4.2 can be submitted in lieu of the required narrative or in addition to the required narrative. If it is the former, then physicians can avoid many of the new narrative requirements by simply attaching the form.
 
Given prior complaints from providers concerning the Boards suite of medical forms, it is unsurprising that the Board is moving forward with this initiative. In 2010,the Board went so far as to declare a provider shortage in the greater Rochester area, noted the burden on providers created by the Board’s forms requirement, and at that time authorized use of the CMS–1500 form with an attached narrative in lieu of completion of the required C-4 family of forms.

Board Eliminates Need to File C-8.1A with C-4AUTH Denial

In a welcome change, the Board has announced that Form C-8.1A will no longer need to be filed in cases where a carrier denies a request for authorization of a special service with Form C-4AUTH. In the past, a carrier’s denial of treatment requested by an attending physician on a C-4AUTH form required completion of 2 forms, as well as a conflicting medical opinion, resulting in the perverse and uniquely New York requirement of requiring 3 documents from the carrier to deny one request from the provider. The Board announcement is a step in the right direction, reducing the paperwork burden on carriers and eliminating a redundant form.
 
The Board’s announcement appears to be a policy statement following a decision inMatter of J&A Concrete Corporation, 2017 NY Work. Comp. G1078502 (filed 9/5/17), which held that the filing of a C-8.1A would be “redundant and unnecessary” where the carrier has already filed a C-4AUTH denial coupled with the filing of a contrary supporting medical opinion. This change is effective immediately.
 

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

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

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