State News : New York

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.


New York

HAMBERGER & WEISS LLP

  (716) 852-0003

 

H&W Welcomes Ellen Shanahan Becker

 

Hamberger & Weiss is pleased to welcome Ellen Shanahan Becker as Special Counsel in our Buffalo office. Ellen has been practicing Workers’ Compensation Law exclusively since her admission to the New York State Bar in 1994, representing carriers, self-insureds, and employers directly. She is the Past Chair and a current member of the Erie County Bar Association Workers’ Compensation Committee and frequently lectures at CLEs for the Bar Association.

Ms. Becker handles all aspects of litigation, including initial contact with employers during the investigation, necessary filings, witness preparation, court appearances, lay and medical testimony. Over her career, she has cross-examined hundreds of medical professionals including most of Western New York’s most prominent orthopedic and neurologic specialists, always with the goal of ensuring that claims brought are for legitimate workplace injuries only and truly causally related medical care. Ellen negotiates and drafts final settlement agreements to end liability, both medical and indemnity, frequently encompassing Medicare set aside, annuity and third-party settlement issues.

 

Court of Appeals Closes Section 25-a Fund in American Economy Decision

 

For those of you who missed our Special Alert on 10/25/17 — The New York Court of Appeals, in a unanimous decision issued on 10/24/17, reversed the Appellate Division, First Department’s 2016 decision inAmerican Economy v. State of New York, 139 A.D.3d 138 (1st Dept. 2016), closing the WCL §25-a fund to claims not submitted for Section 25-a relief before the 1/1/14 deadline. The Court, in a decision authored by Judge Eugene Fahey, was unconvinced by the constitutional arguments raised by the dozens of insurance carrier plaintiffs and found that the closure of the 25-a fund, despite its retroactive impact which imposed unfunded costs upon those plaintiffs, was nevertheless constitutionally permissible.

While technically the plaintiffs may have a right to petition the U.S. Supreme Court for relief, we view success on such a petition to be highly unlikely. Accordingly, the hope of transferring any cases on which applications for 25-a relief were not made before 1/1/14 is now lost.  Carriers can expect that the Board will dismiss any pending requests for transfer of claims to the 25-a fund. The Board had previously held in abeyance applications for transfer of claims to the 25-a fund during the pendency of this appeal.

Those interested in reviewing the specifics of the Court’s reasoning arewelcome to review the decision by clicking on this link. Please do not hesitate to contact any ofour attorneys to discuss the decision and its impact on your claims.

 

Appellate Division Affirms Board Decision Denying Benefits to Claimant Working Reduced Hours

 

On 10/5/17, the Appellate Division, Third Department, decided Romanko v. New York University. This decision holds that a claimant who voluntarily self-limits her participation in the labor force is not entitled to indemnity awards. The claimant was an assistant finance director. After resigning her employment, she looked for work and eventually alleged re-attachment to the labor market after taking a job as an accountant working only six hours per week. Claimant alleged the six-hours-per-week job was in line with the medical restrictions recommended by her treating physician. The Board rejected the treating physician’s restrictions in favor of an opinion from a different doctor who did not limit the number of hours claimant could work per week. The Board found that the claimant had not sufficiently re-attached to the labor market and the claimant appealed. The Appellate Division affirmed, holding that a claimant who does not search for employment consistent with his or her medical restrictions (in this case, no hourly restrictions) is not attached to the labor market even if engaged in token participation in the work force.

Note that the claimant's treating physician opined that the claimant could only work one day per week and the Board rejected that opinion in favor of the carrier's consultant's opinion that the claimant was not restricted from full-time work. Employers and carriers should keep this in mind when faced with the argument from claimants that they are entitled to rely on their physician's opinions concerning work ability and degree of disability. With respect to labor market attachment, it is the Board's judgment—not the claimant's or claimant's physician's opinion—on degree of disability and work restrictions that controls. 

 

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

 

Copyright © 2017, Hamberger & Weiss, All rights reserved.
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Hamberger & Weiss                   
1 South Washington Street       
Suite 500                               
Rochester, NY 14614

Hamberger & Weiss
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Buffalo, NY 14202
         
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H&W New York Workers' Compensation Defense Newsletter

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Court of Appeals Closes Section 25-a Fund in American Economy Decision

 

In a 32-page unanimous decision issued yesterday (10/24/17), the Court of Appeals (New York’s highest court) closed the Section 25-a fund by reversing the Appellate Division, First Department’s 2016 decision inAmerican Economy v. State of New York, 139 A.D.3d 138 (1st Dept. 2016). The Court, in a decision authored by Judge Eugene Fahey, was unconvinced by the constitutional arguments raised by the dozens of insurance carrier plaintiffs and found that the closure of the 25-a fund, despite its retroactive impact which imposed unfunded costs upon those plaintiffs, was nevertheless constitutionally permissible.

While technically the plaintiffs may have a right to petition the U.S. Supreme Court for relief, we view success on such a petition to be highly unlikely.  Accordingly, the hope of transferring any cases on which applications for 25-a relief were not made before 1/1/14 is now lost.  Carriers can expect that the Board will dismiss any pending requests for transfer of claims to the 25-a fund. The Board had previously held in abeyance applications for transfer of claims to the 25-a fund during the pendency of this appeal.

Those interested in reviewing the specifics of the Court’s reasoning are welcome to review the decision by clicking on this link. Please do not hesitate to contact any ofour attorneys to discuss the decision and its impact on your claims.

 

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

 

Copyright © 2017, Hamberger & Weiss, All rights reserved.
You are receiving this email because you are a valued client of Hamberger & Weiss
Our mailing addresses are:

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

Hamberger & Weiss
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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Board’s Rollout of Proposed New SLU Guidelines Continues; Met with Opposition by Labor and the Claimants’ Bar   

 

In our Special Alert earlier this month we discussed the Board’s release of its proposed new SLU Guidelines and the accompanying regulations.For those of you have not had an opportunity to do so, we invite you to click this link to read our white paper containing our analysis of the proposed guidelines. There have been mixed messages from the Board on the current handling of SLU claims following the release of the proposed guidelines and regulations. Also the proposed guidelines have been met with vehement opposition from Labor and the claimants’ bar.
 
Shortly after publication of the proposed guidelines, the Board issued letters withdrawing previously issued EC-81.7s that directed development of the record on schedule loss of use. The letters stated that the Board wanted to avoid a situation where a claimant attended an SLU exam which would no longer have evidentiary value in light of the proposed guidelines which would be implemented on 1/1/2018.
 
The shift in policy lasted only a week; we have now heard from Board examiners that the Board is rescinding that policy and the parties will be expected to develop the record on SLU cases in their usual course under thecurrent Impairment Guidelines. This of course raises the question of what will happen to cases that do not reach a final decision on SLU prior to the implementation of new guidelines on 1/1/2018.
 
Since the Board’s introduction of the proposed guidelines and regulations, Labor and the claimants’ bar have instituted an aggressive lobbying and social media campaign to convince the Board to reject them in their entirety and start from scratch. That should give our readers some indication of how favorable the proposed Guidelines appear to be to employer and carrier interests. On 9/26/2017, the New York State Assembly’s Labor Committee held a hearing, attended only by the Democratic members of the committee, where various stakeholders whose interests are aligned with Labor testified against implementation of these proposed guidelines. The Board also presented a number of its own witnesses in support of the proposed Guidelines.
 
We would like to remind our readers that the comment period for the proposed Guidelines closes on 10/23/2017 and thatall stakeholders have been invited by the Board to submit comments concerning the proposed regulations and guidelines through an online survey.
 
We invite you tocontact us with any questions that you may have regarding the proposed guidelines and their accompanying regulations.

 

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

 

Copyright © 2017, Hamberger & Weiss, All rights reserved.
You are receiving this email because you are a valued client of Hamberger & Weiss
Our mailing addresses are:

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

Hamberger & Weiss
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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Workers' Compensation Board Releases New SLU Guidelines and Regulations

 

On 9/1/17, as announced in Subject No. 046-978, the Workers’ Compensation Board proposed new Permanent Impairment Guidelines for schedule loss of use (SLU) awards as required by WCL §15(3)(x). Under the April 2017 workers’ compensation reform, the Board is required to adopt new permanency impairment guidelines for SLU cases no later than 1/1/18. The law also required the Board to publish the proposed guidelines by 9/1/17, along with proposed regulations necessary to implement those guidelines. The Board is seeking comments from all stakeholders in the workers’ compensation system concerning the new permanent impairment guidelines and their enabling regulations. Any comments are due to the Board no later than 10/23/17 via anonline survey set up by the Board.
 
The Board’s proposed regulations and impairment guidelines concerning SLU determinations represent a significant departure from prior practice on schedule loss of use awards. Although the proposed guidelines, in general, appear designed to result in lower overall SLU determinations, the decision to allow for consideration of both the subjective factor of pain and a poorly defined “loss of earning power” factor in SLU determinations provides an unnecessary level of uncertainty in SLU eligible cases. This will make it difficult for parties to resolve disputes concerning SLUs without litigation and will result increased costs for employers and carriers. Nevertheless, this uncertainly may be acceptable should the proposed guidelines result in lower SLU awards after 1/1/18. Unfortunately, it will be impossible to know the impact of the proposed guidelines until they are implemented and subject to decisions by WCLJs and the Board in future cases.
 
Additionally, we submit that adding percentage points to SLUs for “loss of earning power” is inconsistent with the concept of a SLU award which is already designed to compensate for presumed loss of future earnings.  This new provision, in effect, gives claimants double indemnity for SLU impairments and, in our opinion, is inappropriate and should be rejected by the Board. Moreover, the consideration of loss of earning power appears designed to only assist the claimant in increasing a SLU award, rather than allowing the employer or carrier to seek a lower SLU award in those circumstances where warranted.
 
We strongly suggest that stakeholders in the workers’ compensation system including employers, carriers, and third-party administrators take the opportunity in the coming weeks to provide comments to the Board concerning the proposed regulations and guidelines. You can click onthis link to read our white paper with our extensive interpretation and analysis.

 

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

 

Copyright © 2017, Hamberger & Weiss, All rights reserved.
You are receiving this email because you are a valued client of Hamberger & Weiss
Our mailing addresses are:

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

Hamberger & Weiss
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
         
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Board Panel Steps Back from Delta Airlines Rule in New Labor Market Attachment Decision

 

On August 7, 2017, a new Board Panel Decision, Barbella Environmental Tech., WCB #G0796969 (Aug. 7. 2017) introduced a change in the law on labor market attachment by backing away from the rule created by the Board Panel decision inDelta Airlines and the Full Board decision in Cranesville Block which allows claimants who were still employed by the employer of record to be found attached to the labor market without the need to produce proof of same as required by theAmerican Axle decision. The Board Panel in Barbella was split, with Commissioners Ausili and Hull in the majority and Commissioner Levelt in dissent. The split decision gives the claimant an appeal by right to the Full Board. The majority opinion outlined a two-pronged test for claimants who remain “on-the-books” at the employer of record, rather than applying a conclusive presumption that those claimants are attached. 
 
The new test has two elements:
 

  1. Does the Board file contain objective medical evidence that the claimant can return to work with the employer?
  2. Does the claimant have a realistic expectation to return to work with the employer?

 
If the answer to both questions is yes, then the claimant is attached to the labor market.  If the answer to one or both questions is no, then the claimant needs to satisfy the requirements ofAmerican Axle to prove labor market attachment. This rule will apply only to claimants during a period of temporary disability because the 2017 statutory changes to §15(3)(w) provide that permanently partially disabled claimants entitled to benefits at the time of classification no longer need to demonstrate ongoing attachment to the labor market.
 
The majority said that the claimant inBarbella, a union member who was partially disabled and potentially pending surgery, did not have objective medical evidence that he could return to work for the employer. Thus, he did not have a reasonable expectation to return to work and perform his essential job functions. The claimant also did not meet the requirements for labor market attachment outlined inAmerican Axle, so his awards were rescinded until he proved reattachment to the labor market.

This new rule gives carriers and employers another tool to limit indemnity liability during the period of temporary disability. We expect that the claimant will take the case to the Full Board and we’ll plan to report on that decision when it becomes available. 

 

Don't Ignore Loss Transfer Opportunities in MVA Claims

 

Workers' Compensation claims arising from motor vehicle accidents (MVAs) present complex legal issues for claims handlers. Many of these claims involve a third-party action filed by the claimant against a negligent driver involved in the accident. Most claims professionals know that when a MVA involving two “covered persons” occurs in New York State, there is no workers’ compensation lien for payments made in lieu of “first party benefits” as defined by the New York No-Fault Law.  The workers’ compensation carrier or self-insured employer (SIE) has lien and offset rights only for payments deemed outside the definition of “first party benefits”. Payments outside of "first party benefits" include: 1) combined payments of medical, indemnity and no-fault in excess of $50,000.00; 2) indemnity payments in excess of $2,000.00 per month; or 3) indemnity payments for lost time occurring after three years from the MVA. 
 
Loss Transfer Arbitration allows the carrier or SIE to recover payments made in lieu of "first party benefits" even though the carrier or SIE does not have a lien against the third party recovery for those payments. Loss Transfer applies only in cases where at least one of the vehicles involved in an accident is used principally for the transportation of persons or property for hire or weighs in excess of 6500 pounds unloaded. In these cases, the carrier or SIE can pursue recovery up to $50,000.00 against the automobile carrier for the negligent party. 
 
Hamberger & Weiss handles Loss Transfer claims and Arbitration hearings across the state, as those hearings are now conducted via teleconference. Over the past 5 years, we have recovered nearly $5,000,000 in Loss Transfer reimbursement for our clients.
 
We also prepare third party consent letters associated with the settlement of the bodily injury claim. Although Loss Transfer and third party actions are separate legal matters there are overlapping legal issues that intertwine your lien, credit and Loss Transfer recoveries. Involving expert counsel in third party cases will maximize your Loss Transfer recovery and protect your consent, lien and credit/offset rights in the third party action.  Please contact Dan Bowers of our Loss Transfer practice group for assistance in these cases. For advice in regard to third party settlements generally, please contactRon Weiss, Susan Duffy, or Dan Bowers.

 

Stay Tuned – New SLU Guidelines Are Coming!

 

The 2017 Workers’ Compensation reform law (Part NNN of Chapter 59, Laws of 2017) requires the Board, in consultation with representatives of labor and business, to develop new permanency impairment guidelines concerning SLU findings by 9/1/17 for implementation on 1/1/18. The Board is reportedly on schedule to issue the proposed SLU Guidelines on 9/1/17. We will present our analysis of the proposed Guidelines as soon as possible after they are published.

 

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

 

Copyright © 2017, Hamberger & Weiss, All rights reserved.
You are receiving this email because you are a valued client of Hamberger & Weiss
Our mailing addresses are:

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

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

 

CMS Expands WCMSA Re-Review Process to Allow Submission of New Evidence

 

Traditionally, the submission of a WCMSA to CMS was a one-shot affair. Once the parties received a WCMSA approval letter from CMS, the set-aside amount indicated in the letter was not subject to re-review unless CMS made an obvious mistake of fact or evidence that pre-dated the original submission that was not included in that submission was discovered. Except for these narrow circumstances, CMS would not consider newly submitted evidence in a request for re-review of a previously determined WCMSA.
 
With the publication of its latest WCMASP User Guide, Version 5.1 (7/10/17), CMS has expanded its re-review process to include what it callsAmended Review. This will allow the parties to a workers' compensation settlement to submit new medical evidence to CMS, even after receipt of the WCMSA approval letter from CMS, subject to certain limitations described below. Why would someone want to do this? Amended review would allow the parties to apply for a lower WCMSA than that approved by CMS if new medical evidence supported the request. For example, if CMS included lifetime use of opioid medication in its WCMSA approval letter, but subsequent to the issuance of the approval letter the claimant weaned from the prior medications, the parties can submit medical evidence showing the successful weaning and apply to CMS for approval of a lower set-aside amount.
 
Amended Review is not without its limitations, however. Cases subject to Amended Review are subject to the following parameters:
 
1) The original submission of the WCMSA for pre-settlement approval was submitted 1 to 4 years from the date of the requested re-review;
 
2) Only one Amended Review request can be made per case. If Amended Review is denied, another cannot be requested; and
 
3) The new proposed WCMSA must differ from the original approved WCMSA amount by 10% or $10,000, whichever is greater.
 
The Amended Review process will allow parties to reconsider settlement of claims previously thought too expensive to settle due to a high WCMSA approved by CMS, assuming medical evidence exists to support the request for a lower WCMSA. For assistance in reviewing a case for potential Amended Review by CMS or for an initial WCMSA submission to CMS, please do not hesitate to contact one of our Statewide MSA/Section 32 Department leaders, Dan Bowers, Joe DeCoursey, or Nicole Graci.

 

Board Clarifies Law on Attachment to Labor Market, Provides New Forms in July 2017 Subject Number

 

Subject Number 046-958 provides an outline of the Board’s current interpretation of the state-of-the-law on labor market attachment. The Subject Number leads by noting that the "only significant recent change" in the Workers' Compensation Law with respect to labor market attachment arose from Part NNN of Chapter 59, Laws of 2017, Subpart A, which among other things amended WCL Section 15(3)(w) to eliminate the need for claimants found entitled to benefits at the time of classification to demonstrate ongoing attachment to the labor market. The Board is careful to note that temporarily partially disabled claimants and those claimantsnot attached to the labor (or otherwise not entitled to benefits) at the time of classification remain obligated to demonstrate their attachment to the labor market. 
 
The Subject Number reminds readers that claimants can demonstrate labor market attachment by adhering to the now familiar American Axle standard that has been the state of the law since 2010. The Board recognizes that many job applications are completed online via email or internet submission and permits modification of the American Axle standard under the Suffolk County Health Services case to allow for this. Most importantly, the Subject Number warns claimants that an independent job search must be "timely, diligent, and persistent." Moreover, a claimant engaged in other attachment to the labor market efforts such as use of a One-Stop career center must provide documentation showing the claimant's "active participation" in these efforts. 
 
To assist claimants in documenting their attachment to the labor market efforts, the Board has issued a revised C-258 form and introduced a new form, the C-258.1. The C-258 form now allows claimants to enter information about other attachment efforts such as participation at a One-Stop career center, rehabilitation or retraining efforts, and attendance at an accredited educational institution. Claimants seeking to prove labor market attachment through an independent job search are directed to use the new C-258.1 form, which provides more direction and space for claimants to produce the information required by theAmerican Axle decision in detailing their independent job search efforts. 
 
The Board also provides a reminder in the Subject Number that although a claimant found entitled to benefits at the time of classification need not produce proof of attachment to the labor market, there can remain a question as to whether the claimant's disability was the reason why the claimant ceased full-time work. In citing to theLauner and Smith cases, the Board is suggesting that employers and carriers look carefully at the reasons for a claimant's reduction in earnings before accepting reduced earnings awards. However, the claimants inSmith and Launer were done in by their own testimony, which may prove difficult to obtain given the Board's stinginess with re-openings on classified claims. 
 
The Board’s comments here should also serve as a reminder that although a claimant found entitled to benefits at the time of classification need not demonstrate ongoing labor market attachment, we believe that the defense of voluntary withdrawal from the labor market remains available for employers and carriers to pursue. We would recommend reading our article from our May 2017 newsletter for recommendations on how to pursue the voluntary withdrawal defense after classification. In short, employers and carriers will need to compile evidence not unlike that which was used in the past to seek a re-opening of claims following classification such as questionnaires sent to the claimant asking if the claimant was looking for work, offers of vocational services, job leads sent to the claimant, and the results of follow up on those leads.
 
We believe that the Subject Number will prove useful in day-to-day litigation on labor market attachment issues in temporary disability cases. This Subject Number is in alignment with the position we have been taking since theAmerican Axle decision regarding claimant's requirements for proving labor market attachment and will provide a further point of authority to direct WCLJs and the claimant's bar in arguments over labor market attachment.
 
If you have any questions about the defense of labor market attachment or interpretation of this Subject Number, please do not hesitate to contact any ofour attorneys.

 

Appellate Division Rules that Section 15(3)(v) Awards Subject to Same Cap on Benefits as 15(3)(w) Awards

 

On 6/29/17, the Appellate Division, Third Department, decided Mancini v. Office of Children and Family Services. This decision is notable for two reasons. First, the court explicitly held that payments under WCL §15(3)(v) are subject to the statutory cap on awards set forth in WCL §15(3)(w). A loss of wage earning capacity (LWEC) finding must be made by the Board, as in classification cases, to set the length of the capped awards.  Second, the court affirmed a finding by the Board that the cap on §15(3)(v) awards does not begin until the date when the Board makes a LWEC finding, rather than the date on which claimant’s schedule loss of use award allocation ends. 
 
For context, WCL §15(3)(v) allows claimants with a greater than 50% schedule loss of use award for certain injuries to request additional payments after the schedule loss of use award allocation expires. Claimants seeking §15(3)(v) awards must prove compliance with various criteria. The language of §15(3)(v) specifically references WCL §15(3)(w) for payment of the additional benefits. For quite some time, our office has taken the position that this means benefits under WCL §15(3)(v) should be capped, and the Court has now confirmed this.

The two takeaways from this decision are that WCL §15(3)(v) awards are subject to the statutory caps in WCL §15(3)(w), and the cap on awards begins effective the date of the loss of wage earning capacity finding by the Board once a claimant makes a successful §15(3)(v) claim.

 

WCB Chairman Munnelly Announces His Retirement

 

At the July 2017 meeting of the Commissioners of the Workers’ Compensation Board, Chairman Kenneth J. Munnelly announced that he would be retiring from the Board in September. As of this writing, we have no information regarding whom the Governor may appoint to replace him as Chair.

 

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

 

Copyright © 2017, Hamberger & Weiss, All rights reserved.
You are receiving this email because you are a valued client of Hamberger & Weiss
Our mailing addresses are:

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

Hamberger & Weiss
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
         
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Board Rules that Medical Treatment Guidelines Apply to Out-of-State Treatment

 

In Hospice, Inc. (WCB Case No. 5951 3410, 5/24/17), a Board Panel ruled that the New York State Medical Treatment Guidelines (“MTGs”) apply to treatment rendered to a claimant residing out-of-state by an out-of-state provider. This represents a significant departure by the Board from its prior decisions on this issue.

The claimant in Hospice lived in Nevada and sought treatment from a Nevada provider. The carrier filed a C-8.1B to the bill for this treatment, arguing that the treatment provided was not based upon a correct application of the MTGs because the provider billed for medications not approved under the MTGs. The WCLJ found the C-8.1B in favor of the provider and the carrier filed an Application for Board Review.

The Board reversed and ruled in the carrier’s favor, noting that even though it previously held that a nonresident claimant seeking treatment out-of-state was not bound by the MTGs, it was now disavowing and departing from such prior Board Panel decisions and ruling that the MTGs apply regardless of where or by whom the treatment is rendered. The Board’s decision was based on its reading of the Court of Appeals decision inKigin v. State of New York Worker’s Compensation Board, 24 N.Y.3d 459 (2014).

The Board also held that the variance process applies to out-of-state providers but that out-of-state providers are not required to use the Board’s forms (i.e, MG-1, MG-2 and C-4AUTH). Use of the forms is preferred but not a basis to deny treatment.

 

Board Issues New C-240: Employer’s Statement of Wage Earnings Form

 

On 6/19/17, the Board issued Subject Number 046-949, which introduced a substantially revisedC-240 form (Employer’s Statement of Wage Earnings) to the workers’ compensation community. The Subject Number provided additional guidance regarding the phrase “a substantial part of the year” in determining whether a similar worker payroll should be used. Significantly, the Subject Number and new C-240 form suggest that it is now permissible for an employer to attach payroll information in lieu of completing the payroll tables on the second page of the form.

 

Appellate Division Clarifies Calculation of End Date of Carrier’s “Holiday” Credit in Third-Party Action Cases

 

On 6/1/17, the Appellate Division, Third Department, decided Lala v. Site Works Contracting Corp. At issue was how the end date for a carrier’s third-party action holiday should be calculated for cases involvingBurns payments for the carrier’s equitably apportioned share of the third-party action litigation expenses.

The claimant inLala settled his third-party action for $100,000.00 on 3/11/11.  He received a net recovery of $64,541.51.  The Board awarded him $500.00 per week for indemnity.  Of that amount, 35.46% ($177.30 per week) constituted the carrier’sBurns payment, with the remaining $322.70 directly credited to the third-party action holiday.

The Board held that the credit expired on 8/20/13. In calculating this date, the WCLJ used the $322.70 portion of the carrier’ credit and also the $177.30 Burns payment, meaning the full $500.00 per week was deducted from the $64,541.51 credit. On appeal to the Appellate Division, the carrier argued that only its $322.70 per week share should be deducted from the credit and that the $177.30 per week Burns payment should not be deducted from the credit. If this method were used, its credit would not expire until 1/6/15. The claimant and the Board argued that the full $500.00 per week should be deducted from the credit when calculating the exhaustion date.

Citing Kelly v. State Insurance Fund, Burns v. Varriale, and Stenson v. New York State Department of Transportation, the Appellate Division held that in the absence of a specific provision to the contrary in the carrier’s settlement consent letter, the appropriate manner for calculating the credit exhaustion is to include both the amount ofBurns payment and the carrier’s share of the awards in the weekly deductions from the net third-party action recovery when indemnity awards are payable to the claimant. In other words, the appropriate deduction from the carrier’s credit was $500.00 per week, not $322.70 per week. The Court explained that under the Court of Appeals precedent governing equitable apportionment of third-party action litigation expenses, the carrier’s share of litigation expenses is based on the total benefit derived from the third-party action recovery. Because Burns payments are a pay-as-you-go method of repaying the claimant’s third-party action litigation expenses, allowing the carrier to deduct only its weekly share of the net recovery from the amount of the third-party action credit would create a double recovery to the carrier because the Burns payments are supposed to reimburse the claimant for the costs incurred in obtaining the third-party action recovery.

The Appellate Division’s use of the phrase “in the absence of a specific provision to the contrary” should serve as a reminder to all parties of the importance of careful drafting of consent letters to third-party settlements due to the scrutiny given to them by the Board and the Courts.

 

Appellate Division Allows Claimant to Receive Two 100% SLU Awards for the Same Injury

 

On 5/25/17, the Appellate Division, Third Department decided Deck v. Dorr, holding that a claimant can receive a 100% schedule loss of use award for the thumb and a separate 100% schedule loss of use award for the same hand at the same time as long as there are distinct separate injuries to the thumb and the rest of claimant’s fingers.

Claimant lost all four fingers when his hand became stuck in a meat grinder.  The grinder also amputated his thumb, but doctors were able to reattach a portion of the thumb to his hand.  The thumb was half the size of claimant’s thumb on the opposite hand and had no pinching ability.  The parties stipulated to a 100% schedule loss of use award for the hand based on claimant’s loss of all four fingers, and litigated claimant’s eligibility for a separate 100% schedule loss of use award for the thumb.  Uncontradicted medical testimony stated that the Disability Guidelines allow for more than 100% loss of use for a hand under certain circumstances.  The Board awarded claimant the 100% loss of use for his hand and a separate 100% loss of use for the thumb, stating that claimant sustained distinct injuries to his four fingers and his thumb, and that the separate injuries had differing impacts on the functionality of his hand.  Based on this, the Board concluded that distinct loss of use awards for the four fingers (which translates into a 100% loss of use of the hand), and the thumb was appropriate.

On appeal, the carrier argued that the injuries to the fingers and thumb should be subsumed into a 100% schedule loss of use for the hand with no additional award. The Court disagreed, citing precedent from the New York State Court of Appeals, New York’s highest appellate court, and Appellate Division precedent holding that when a claimant has multiple injuries to different parts of the hand, the schedule loss of use award is not limited to 100% of the hand. The Court highlighted the fact that the Disability Guidelines treat the fingers and thumbs separately for schedule loss of use award analysis. The Court also highlighted the uncontradicted medical testimony that the Guidelines contemplate a greater than 100% loss of use for the hand under certain circumstances.

The take-away from the case is that when a claimant has multiple injuries to different parts of a hand, separate schedule loss of use awards can be awarded for those distinct injuries.

 

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

 

The Attachment to the Labor Market Defense for PPD Claimants After the 2017 Reforms

 

Although the April 2017 amendment to the Workers’ Compensation Law has eliminated the need for some permanently partially disabled (PPD) claimants to demonstrate ongoing attachment the labor market, we submit that this does not mean that carriers are without means to seek a suspension of benefits following classification. Recall that WCL Section 15(3)(w) was amended to read, in pertinent part, as follows:
 

Compensation under this paragraph shall be payable during a continuance of such permanent partial disability,without the necessity for the claimant who is entitled to benefits at the time of classification to demonstrate ongoing attachment to the labor market

 
The curious situation created by this amendment is that although the claimant still must maintain an attachment to the labor market following classification with a permanent partial disability, the claimant no longer needs to prove it. Although the claimant’s burden to demonstrate attachment has been lifted, this does not prevent the carrier from arguing that the claimant has voluntarily withdrawn from the labor market.
 
Before the 2017 amendment to Section 15(3)(w), the Board repeatedly stated in its decisions addressing requests to reopen claims post-classification that “attachment to the labor market and voluntary withdrawal from the labor market are two different legal concepts,”Combined Life Insurance Co., WCB Case No. 806012674 (decided 4/9/15). Attachment to the labor market is an ongoing issue, which the claimant must continually maintain and prove to be entitled to benefits. Voluntary withdrawal from the labor market applies to a specific point in time and must be proven by substantial evidence. Curtis v. Dale Pipery Corp., 295 A.D.2d 836 (3d Dep’t 2002).  For example, if a claimant quits employment for reasons unrelated to the injury or refuses a light-duty job offer within that claimant’s work restrictions made in good faith, that claimant has voluntarily withdrawn from the labor market, and must prove attachment thereafter to maintain an entitlement to benefits. Moreover, if a claimant does not look for work, or otherwise fails to maintain an attachment to the labor market, that claimant can be found voluntarily withdrawn from the labor market. German v. Target Corp. 77 A.D.3d 1126 (3d Dept. 2010);see also, Buffalo Bd. Of Education, 2013 WL 1007427 (WCB Case No. 80208789, decided March 6, 2013).

The amendment to Section 15(3)(w) makes no reference to the voluntary withdrawal defense. This defense should still be available to carriers even after classification. A condition precedent to a finding of voluntary withdrawal is a prior attachment to the labor market. If the carrier can submit sufficient evidence that the claimant is no longer engaged in the activity that gave rise to the claimant’s earlier attachment to the labor market (e.g., the claimant is no longer employed, or going to school, or retraining, or looking for work) then the carrier could argue that the claimant had voluntarily withdrawn from the labor market.
 
We submit therefore that carriers should: (1) pursue the attachment to the labor market defense vigorously before and at the time of classification and (2) argue for a finding of voluntary withdrawal from the labor market after classification if the carrier can show that the claimant ceased those activities which previously proved the claimant’s attachment to the labor market at the time of classification.
 
We believe that the proof required to argue this will be like that required by numerous Board Panel decisions concerning the reopening of a claim following classification with a PPD. Such proof typically consisted of copies of questionnaires sent to the claimant asking if the claimant was looking for work, offers of vocational services, job leads sent to the claimant, and the results of follow up on those leads. Similar evidence used in reopening those claims will prove useful in pursuing the voluntary withdrawal defense following the 2017 amendment to Section 15(3)(w).
 
If you have any questions or need assistance concerning defense of a post-PPD claim, please do not hesitate to contact any one ofour attorneys

 

Appellate Division Decision Clarifies Issues Concerning Attachment to the Labor Market Defense

 

On 5/4/17, the Appellate Division, Third Department, decided McKinney v. United States Roofing Corporation,which contains several holdings clarifying issues commonly seen at hearings concerning labor market attachment and lost time awards. This decision is of interest given the contradictory Board Panel decisions on the attachment to labor market defense and the recent 2017 amendments to the Workers’ Compensation Law eliminating the need for permanently partially disabled claimants entitled to benefits at the time of classification to produce proof of labor market attachment.
 
TheMcKinney decision confirms that a total disability opinion does not shield the claimant from a suspension of awards when the Board rejects that total disability opinion and finds the claimant to have a partial disability. This is not a new concept. The Appellate Division previously addressed this issue in both Testani v. Aramark Services, 306 A.D.2d 709 (3d Dep’t 2003) andBrowne v. Medford Multi-Care, 89 A.D.3d 1173 (3d Dep’t 2011). Nevertheless, the decision inMcKinney reinforces prior rulings on this issue by holding that when the Board rejects a total disability opinion and awards benefits of a partial disability rate, there is an implicit finding that the claimant must produce evidence of the attachment to labor market.
 
Second, the McKinney decision affirms that the labor market attachment defense is merely a subset of the requirement that awards to a claimant are not appropriate where there is no causal connection between the claimant's reduction in earnings and the claimant's work injury. Even though the 2017 amendments to the Workers' Compensation Law eliminated the need for permanently partially disabled claimants entitled to benefits at the time of their classification to produce proof of labor market attachment, there is no bar against carriers arguing that the same claimants are not eligible for awards if they are self-limiting their earnings, or if there is no causal connection between the reduction in earnings in the work injury for any reason other than failure to prove labor market attachment. Nor do we believe that the 2017 change in the law prevents carriers from arguing that the claimant hasvoluntarily withdrawn from the labor market as we have previously discussed in our article above.
 
Finally, theMcKinney decision resolves, somewhat, the question of when indemnity awards should be suspended where the claimant is found not attached to labor market. InMcKinney, the Court agreed with the Board’s suspension of the claimant's benefits prior to the hearing at which the claimant was scheduled to testify on the labor market attachment issue based on the claimant's failure to produce proof of labor market attachment prior to that hearing.

 

Appellate Division Rules That Section 25-a Applies to Death Claims Resulting from Claim Already Transferred to SFCC Prior to 1/1/14

 

On 5/4/17 the Appellate Division, Third Department decided Misquitta v. Getty Petroleum.  This case holds that the Special Fund for Reopened Cases under WCL §25-a is liable for death claims resulting from injuries from a claim that had already been transferred to it before the January 1, 2014 cutoff date for §25-a transfers, even when the death claim itself was not made until after that date.
 
This case involved a 1985 injury established for a myocardial infarction with a permanent total disability classification. Liability for the claim transferred to the Special Funds Conservation Committee (SFCC) under WCL §25-a in 2000. The claimant died due to coronary artery disease on May 2, 2014 and his wife brought a claim for death benefits against the Special Funds. The SFCC argued it was not responsible for the death claim because it was filed after the January 1, 2014 §25-a cutoff.  The employer and original carrier were brought into the litigation but they argued that the SFCC was responsible for any liability on the death claim based on the 2000 §25-a transfer. The WCLJ found in the employer and original carrier’s favor and a Board Panel affirmed on appeal. Special Funds appealed to the Appellate Division, Third Department which affirmed, holding Special Funds liable for the death claim regardless of its date of filing, because Special Funds was already the liable carrier for the underlying workers’ compensation claim based on the 2000 §25-a transfer.
 
The employer and original workers’ compensation carrier also argued that the January 1, 2014 cutoff for §25-a transfers was unconstitutional based on the American Economy Insurance Company v. State of New York case. 139 A.D.3d 138 (1st Dep't 2016). That decision is currently pending on appeal to the New York State’s highest appellate court, the Court of Appeals.  The Appellate Division did not address the merits of the American Economy issue because it ruled in favor of the employer and original carrier based on different legal grounds.
 
Misquitta establishes that the Special Fund will be liable for a compensable death claim regardless of the date of filing if liability for the original workers’ compensation claim which led to the death transferred to the Fund under §25-a before the January 1, 2014 cutoff date.

 

H&W Obtains Favorable Decision on Drug Weaning from Board Panel, Reversing WCLJ

 

Earlier this month in Toys R Us, N.Y.W.C.B. 80801667 (5/11/17), the Board directed the claimant's treating physician to develop a program to wean the claimant from Fentora, Kadian, Parafon, and Rozerem in accordance with recommendations set forth in the carrier's IME report and the Non-Acute Pain Medical Treatment Guidelines (NAP-MTGs). This decision modified the finding of the WCLJ, who refused to make any changes to the claimant's treating physician's prescription regimen due to the claimant's extreme pain. This case was litigated and argued by our partner,Melanie Wojcik.

This case serves as a reminder that the Board will enforce its Medical Treatment Guidelines, especially with respect to opioid weaning. The claimant in this case showed no functional improvement by following the treating physician's opioid-based treatment plan, which had a morphine equivalent dose (MED) of approximately 150 mg. The carrier's IME opined that the claimant's "current medical regimen is not consistent with the medical treatment guidelines." The IME set forth his recommendations for weaning of the opioid medications.

Despite a factual inaccuracy in the IME report, the Board found that the IME's report was "most consistent" with the NAP-MTGs and that the claimant should be weaned from his medication regimen based on the recommendations in the IME report.

Opioid weaning decisions such as this one can help employers and carriers in reducing long-term liability in their cases and reduce the medical costs of claims in anticipation of settlement.

 

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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H&W New York Workers' Compensation Defense Newsletter

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Appellate Division Affirms Attachment to Labor Market Requirements

 

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

  

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

  

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

 

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

 

Video Surveillance Formatting Requirements – A Reminder

 

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

 

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

 

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

 

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

 

H&W Webinar on Paid Family Leave

 

Finally, as a reminder, on 5/31/17, our partner Nicole Graci will discuss New York's new Paid Family Leave Law, which will be administered by the Workers' Compensation Board. Employee contributions to New York State Paid Family Leave can begin on 7/1/17, and the Paid Family Leave Program goes into effect 1/1/18. Please join us for an introductory webinar, where we will address eligibility, filing requirements, denials, arbitration, and other pertinent issues facing employers, self-insured employers, carriers and third party administrators. 
 
Please click here to register for the Paid Family Leave webinar. The webinar is scheduled to take place Wednesday, May 31 at 1:00 pm.

 

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

 

Copyright © 2017, Hamberger & Weiss, All rights reserved.
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1 South Washington Street       
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Rochester, NY 14614

Hamberger & Weiss
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2017 New York Workers' Compensation Reform

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SPECIAL ALERT: Workers' Compensation Reform Package Included in 2017 NYS Budget

 

Over the weekend, the Legislature and the Governor reached an agreement on the 2017-2018 New York State Budget. Among the myriad changes to New York State law was a workers’ compensation reform package representing the most significant changes to workers’ compensation practice in New York since the 2007 reforms.

Please click here to read our summary and analysis of the major changes to the New York Workers' Compensation Law created by the 2017-2018 budget.

In brief, the law provides for a number of major changes, including:

  • Eliminating the attachment to the labor market defense for many PPD claimants
  • Allowing carriers and employers a credit on payments made after 130 weeks on the total number of "cap" weeks the claimant is allocated under §15(3)(w) at permanency
  • Requiring the Board to create new impairment guidelines for SLUs by 1/1/18.
  • Directing the Board to develop and administer a prescription drug formulary that includes a "tiered list of high-quality, cost-effective medications that are pre-approved to be prescribed and dispensed, as well as additional non-preferred drugs that can be prescribed with prior approval"
  • Requiring the Board to grant claimants hearings in certain uncontroverted claims where the carrier has not commenced payments
  • Giving the Board broad powers to issue administrative aggregate penalties against carriers and self-insured employers
  • Directing the Board to conduct a study, in consultation with stakeholder representatives, of the current IME system
  • Eliminating a common defense to stress claims for claimants employed as police officers, firefighters, or other types of first responders

Please do not hesitate to contact any one of our attorneys with any questions about these changes to the workers' compensation law.

 

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

 

Copyright © 2017, Hamberger & Weiss, All rights reserved.
You are receiving this email because you are a valued client of Hamberger & Weiss
Our mailing addresses are:

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

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