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


  (716) 852-0003


  Section 29 of WCL permits an injured worker to collect WC benefits and sue a negligent 3rd party.


A.  Consent

  Claimant must obtain your consent prior to settling, compromising or discontinuing a third party action, unless the settlement amount exceeds the potential amount of the WC benefits over a claimant’s lifetime.

  ∙Consent is required even if you don’t     have a current lien or right of offset.




  Obtain SFCC consent in established 15-8 and 14(6) claims.

  Matter of Catapano v. Jow, Inc., 91 A.D.3d 1018    (3d Dept. 2012). 

∙  If claimant fails to obtain your prior consent or obtain a judicial compromise order, claimant is barred from further benefits pursuant to Section 29(5) of WCL.


  1)  Settlement amount is greater than                       WCL provides

  2)  Nunc pro tunc order is granted by the trial        court.


B.  Lien  

  Section 29 grants the employer/carrier a lien for all payments of medical and indemnity in connection with the WC claim, subject to certain limitations.

  1.  Medical malpractice:  Lien and credit           only apply to increased liability caused        by the malpractice


2.  Motor Vehicle Accidents

  No lien for payments made in lieu of “first party benefits” when the MVA involves a covered person vs. covered person.  (Section 5102 of the New York Insurance Law)

  a.  First party benefits under Insurance Law Section 5102(B) are defined as payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, less 20% of lost earnings, amounts recovered under workers’ compensation and amounts deductible under the applicable insurance policy. 


  b.  Basic economic loss has a ceiling of up to $50,000 per person and generally includes:

   (1) medical expenses without limitation as to time, provided that within one year after the date of accident it is ascertainable that further expenses may be incurred, and

  (2) lost wages up to $2,000 per month for not more than three years from the date of accident causing the injury.  (N.Y. Ins. Law Section 5102(a)(2). 

  Note:  Keep in mind that even though an employer/carrier has not paid out more than $50,000 in benefits, there is a valid lien if you pay for lost time occurring more than three years after the original date of injury or lost wages in excess of $2,000 per month.


c.  Payments deemed outside First Party Benefits 

∙  It is generally accepted that carriers have valid liens and rights of offset against recoveries pursuant to Section 5104(a) for:

  1.    Medical expenses after the first anniversary date   where it was not ascertainable that ongoing   medical care would be required. (Rarely applies)

  2.    Loss of earnings beyond the third anniversary   date of the accident.

  3.    Any indemnity compensation benefits in   excess of $2,000 per month for actual lost time   occurring within three years from the date of   accident. 


4.  Payment in excess of the $50,000 combined medical and loss of earnings ceiling.

  Note:  Must add up workers’ compensation indemnity + no-fault+medical payments to determine when you hit $50,000.  Workers’ compensation does not always have to pay the full $50,000 before first party benefits are exceeded.  Add no-fault payments to WC indemnity payments.

5.  Payments made on account of death under the Workers’ Compensation Law above the amount of $2,000.

● }

  Note:  When a workers’ compensation carrier has paid out benefits in lieu of first party benefits, it does not have a lien against the third party proceeds for such payments.  Instead, the compensation carrier only has a lien for payments that are made in excess of first party benefits.

  In the situation where the carrier does not have a lien for payments made in lieu of first party benefits, it may be able to recover those benefits in a claim for LOSS TRANSFER pursuant to Section 5105 of the Insurance Law.


  3.  Immediate Lien & Offset Rights

  a.  A compensation carrier may claim a lien for all benefits paid when one of the parties  isnot a covered person as defined under Section 5102(j) of the Insurance Law. Covered persons include pedestrians injured through the use of a motor vehicle or any owner, operator or occupant of a motor vehicle that has in effect the financial security required by the New York Vehicle & Traffic Law.

} }

  Keep in mind that when a municipality is sued and the municipality was not an owner of a vehicle, the municipality is not covered by no-fault and, therefore, the compensation carrier can claim a lien for all benefits paid. There is no carve out for first party benefits in this situation, since the municipality is not a “covered person.”Stedman v. City of New York, 107 A.D.2d 600 (1st Dept. 1985). The city was sued because a traffic light malfunctioned resulting in accident.


  b.  A compensation carrier may claim a lien for all benefits paid when the accident giving rise to the injuryoccurred outside of New York. McHenry v. State Ins. Fund, 236 A.D.2d 89 (3d Dept. 1997).

} }

  4.  Uninsured/Underinsured motorist provision

  No consent, lien or credit rights.  The recovery is not against a 3d party so no rights.

  Shutter v. Philips Display Components Co.,  90 N.Y.2d 703 (1997)

} }


  You have an offset for the net settlement proceeds from third party actions.   Also known as a “holiday or credit”.  If the claimant proves the offset is exhausted, he/she can claim entitlement to future medical and indemnity benefits.  (Deficiency compensation)

  The failure to expressly reserve your right to a credit/offset in writing at the time you grant written consent results in a waiver of your right of credit offset. Robinette v. Arnold Meyer Sign Co., 43 A.D.2d 458 (3d Dept. 1974).

}Carrier’s Obligation

 1. Contribution to attorney’s fees

A.  Kelly v. State Insurance Fund, 60 N.Y.2d 131 (1983)

  In order to receive lien and credit/offset benefits, carrier must pay its share of attorney’s costs and fees for receiving each benefit.

  ∙ It is now well settled that the Kelly case applies only to permanent total classifications, schedule loss of use and death benefits.

}    Considerations

1.  If your lien amount is higher than your share of the cost of litigation, you receive a portion of your lien back under theKelly case.

2.  If your lien was smaller than your share of the cost of litigation (COL), you owe money.  This is called “fresh money”.


B.  Burns v. Varriale, 9 N.Y.3d 207 (2007) 

    “Pay as you go”


∙ Pursuant to Burns, future indemnity benefits are speculative.

∙ Your lien is reduced by the cost of litigation percentage, approximately 33-1/3% off the top.

∙ There is no further reduction of your lien beyond the approximate 1/3 off the top.

∙ Future medical is speculative.  Bissell v. Town of Amherst, 18 N.Y.3d 697 (2012).


∙ As a carrier utilizes its right of offset against further indemnity and medical payments, it is responsible to pay its share of the cost of litigation for using its offset.

∙ No more lien reduction beyond the initial 1/3.

∙ No more “fresh money” on PPD cases.

∙ Pay roughly 1/3 of ongoing indemnity awards.

∙ Pay roughly 1/3 of ongoing medical.


C.  Consent Letter Controls

∙ WCB has the authority to determine Burns payments. 

∙ A carrier must “plainly and unambiguously express” its intent or the WCB will imposeBurns payments.  Stenson v. N.Y.S. Dept of Transp.,   96 A.D.3d 1125 (3d Dept. 2012)

∙ Any ambiguity will be resolved against the carrier.  A carrier needs to draft the consent letterexpressly waiving Burns in the letter if that was the intention of the parties. Richter v. Ramistain, Sys., 57 A.D.3d 1186 (3d Dept. 2008)   


∙ Where a consent letter clearly stated that the lien reduction was in full satisfaction ofKelly obligation and that there would be no additional attorney fees paid, a statement thatBurns is reserved was found meaningless.   MATSOS CONTRACTING CORP., 2013 WL 5670364

∙ Pursuant to Burns, a carrier was directed to pay 37% of an ongoing award and to reimburse a claimant for 37% of medical bills that werepaid directly by the claimant.  DeFOE-RICE JOINT VENTURE, 2013 WL 4497417


∙ Carrier had a lien of $193,946.38.  The consent letter stated that employer would accept $100,000.00 in full satisfaction of its lien and that it would be “entitled to offset any compensation due, or which becomes due, against claimant’s net recovery, prior to the resumption of any indemnity and/or medical payments.”  Despite reducing its lien beyond the initial 1/3 amount perBurns, the Board stated that the employer did not “plainly and unambiguously” release it from paying any further litigation expenses soBurns applies.  EMPLOYER: DEPT. OF HOMELESS, 2014 WL 344825.


∙ Employer reduced its entire lien of $13,179.29 to $0.  Consent letter stated “said amount represents amount paid less equitable apportionment pursuant to Section 29, subd. 1, (WCL) and will not be further reduced.”  The Board stated that this letter unambiguously set forth the carrier’s intent that it would not make any further contribution.” Burns did not apply while using offset.  EMPLOYER:  NYS POLICE, 2014 WL 628768.


∙ A WCB decision that stated a carrier should resume payments on a certain date was found to be a guideline only.  There is no automatic resumption of benefits until entitlement is determined.  The carrier raised VRLM and the case was continued to develop the record on that issue.   JANON GENERAL CONTRACTING, 2013 WL 1942749.

}Considerations 1.Consent letters can no longer be a form letter. 2.Consent letters must be carefully and explicitly prepared on a case by case basis. 3.Consent letter can address timing and form of payment.  Ongoing?  Periodic? 4.Negotiate Section 32 resolution at time of consent and resolve case with a global settlement. 5.Demand 2/3 reimbursement to leverage settlement. 6.Raise attachment to the labor market during period of offset and compile evidence supporting the defense. } 6.Do not agree to voluntarily resume payments. 7.Agree that payments can be suspended upon date of consent letter or disbursement date of proceeds with the filing of a C-8 and detail whenBurns payments will be made. 8.Only reimburse for medical when claimant shows proof of payment out of pocket.  Offset is not utilized when another insurance carrier pays the medical bills. 9.If consent letter is silent onBurns or ambiguous, Burns will most likely apply. ●



  Section 5105 of the NY Insurance Law allows for recovery of First Party Benefits from the negligent party’s automobile insurer if one of the vehicles weighsmore than 6,500 pounds unloaded or is primarily used for transportation of persons or property for hire.  (taxis, buses and other delivery vehicles)


∙  An employer/carrier’s right of lien in auto accident cases is separate and distinctfrom its claim for loss transfer under Section 5105 of the Insurance Law.


∙ Under Section 5105, the carrier can look to the auto carrier of a negligent party for recovery of benefits that are considered within the definition of first party benefits.


∙  Can only recover from an insurer that would have been liable to pay damages in an action at law.



● This section of the law affords relief to the employer who has paid workers' compensation benefits in lieu of first party benefits which another covered person would have been liable to pay in an action at law.  Accordingly, we can recover first party benefits from the automobile insurer for a negligent party.


  We can determine the weight of the vehicle from    the VIN information from DMV.


∙ Loss transfer can apply even though there is only one motor vehicle involved.  This is because a pedestrian is considered a covered person.

}Condition Precedent

  When an employer/carrier wishes to pursue Section 5105 loss transfer, it must first try to amicably negotiate its loss transfer claim against the other party and utilize the intercompany reimbursement notification forms.  This is a condition precedent to the commencement of formal arbitration. 


∙  Arbitrations Forums, Inc. is the entity that arranges for the arbitration. 

 ∙  Formal application

∙  Evidence is submitted with the application and hearings are held before an arbitrator. 

∙  There are no formal rules of evidence.


∙  Hearings are similar to workers' compensation hearings.

 ∙  Prior to the arbitration, all evidence must be submitted  electronically to Arbitration Forums, Inc. on its website, 

∙  There is a contentions sheet that must be completed. It must detail all evidence and the theory of the case.

}Statute of Limitations

  The statute of limitations for commencement of the arbitration for loss transfer is limited to the same statute that would apply to the claimant's underlying third party action.  The statute of limitations for tort actions is generally 3 years, though there is a 2 ½ year statute of limitations for claims against the Thruway Authority. Since payments are often ongoing in the workers' compensation setting, the three year statute of limitations, applies from the dateeach payment is made.  In Re Arbitration Between Liberty Mutual Ins. Co. and Hanover Ins. Co., 307 A.D.2d 40 (4th Dept. 2003).


  The success or failure of the compensation carrier in a claim for loss transfer is contingent upon the issue of the liability of the other covered person.  New York is a comparative negligence state.  Therefore, the recovery of payments made in lieu of first party benefits may be reduced if there is comparative negligence on the part of the requestor’s insured.



  A claimant who settles his/her liability claim against the tortfeasor cannot waive the workers' compensation carrier’s loss transfer rights.



  Tortfeasor’s liability limit is $100,000.00.  The liability carrier pays the claimant the policy limit.  The workers' compensation carrier can still pursue its loss transfer claim against the $50,000.00 no-fault provision of the tortfeasor’s insurance policy.

}Best Evidence & Practice

  ∙ Police Reports

  ∙ Statements of both drivers/witnesses      and photos of damage to both vehicles

  ∙ 3d party pleadings

  ∙ Deposition transcripts



∙ We must prove the weight of the vehicle. This can be done by running a Vehicle license Plate or Vehicle Registration search. Vehicle Registration will also show if the vehicle is registered as a Livery vehicle. Most private investigators have the ability to search this information. Cost is about $30.

∙ The arbitration hearing is the best way to ensure that your evidence is fully reviewed and considered.

∙ Phone Hearings – recent development allows us to handle cases all across New York State.


The Exciting World of FROI & SROI

Presented by

David L. Snyder, Esq.

Melanie M. Wojcik, Esq.

Rebecca M. Guerra, Esq.

eClaims: Today’s Agenda I.Background II.New Claims ¡Accepting Claims ¡Denying Claims III.Ongoing Claim Management ¡SROIs ¡Legacy Claims ¡Acquired Claims IV.Conclusion ¡Summary of Changes ¡Practice Points

eClaims Background

Presented by David L. Snyder, Esq.

Background Spring of 2012: Board announces transition to electronic reporting system called “eClaims”

Objective: Provide timely, accurate, and credible electronic reporting which will reduce employer costs and make it easier for injured workers to receive timely benefits Adoption of IAIABC Electronic Data Interchange (EDI) standards What is eClaims? Electronic system for managing claims and reporting case events Keep paper filing for C-240, C-11, PH-16.2, reimbursement requests, attached documents and correspondence

Alphabet Soup Rolling Out eClaims Implementation deadlines 3/10/14: Implementation complete Training courses & materials New regulations N.Y. Comp. Codes R. & Regs. Tit. 12 § 300.22 (effective 4/23/14) Changes to existing regulations N.Y. Comp. Codes R. & Regs. Tit. 12 § § 300.23, 300.38 (effective 4/23/14) eCase Largely unchanged “Summary of benefits” tab captures all SROI submissions historically “Cumulative benefits” tab captures all benefits paid – medical and indemnity If two carriers involved, able to switch viewing screens to view different carriers’ FROI/SROI information Print FROI/SROIs directly from eCase eClaims Inquiry NEW! web application which provides the ability for Trading Partners (Senders), Vendors, Insurers and Third Party Administrators to view both accepted and rejected claim transactions submitted to the Board

Shows all transactions and status (accepted or rejected) and reason for rejections Use anticipated by “Flat filer” vendors: e.g. Mitchell: ¢“Eliminate manual data entry by exporting FROI/SROI data from your claims management system via SFTP (secure file transfer program).” 

New Claims

Presented by Melanie M. Wojcik, Esq.

New Claims 1.The FROI 2.Accepted claims 3.Denied claims 4.Accepting a claim without prejudice under 21-a 5.Partial denials – when medical liability may be accepted, but you are disputing indemnity 6.Practice Points ● ● ● The FROI FROI – First Report of Injury The FROI will replace the C-669 and the C-7 A FROI will always be the first form filed Accepting a Claim: Medical Only Claims FROI-00: for medical only claims where claimant will require medical treatment beyond ordinary first aid or more than two treatments by a person rendering first aid as defined by Section 110 (2), and there is no lost time beyond the working day or shift on which the accident occurred as defined by Section 110(2) and proposed amendment to NYCRR Section 300.22. Notification to be made within 18 days after the disability event or within ten days after the employer has knowledge of the disability event, whichever period is greater. Notification required for claims with more than two treatments. Accepting a Claim: Medical Only Claims (cont’d) This is the same rule that previously applied to the C-2. Difficult to ascertain within the deadlines. If lost time, then the FROI-00/SROI-IP should be filed if carrier is paying lost time or FROI-00/SROI-EP if the employer is paying wages.  Notification codes on FROI-00: “N” (notification only), “M” (medical), and “I” (indemnity) If in the future, claimant begins losing time, a SROI will be filed. Controverted Claims Before EDI, a C-7 would be filed, either by your office or by your counsel.  Your legal counsel would be required to certify the C-7. New procedure:  if claim is to be denied you will file either a FROI-00 then a SROI-04, or a FROI-04. Legal counsel cannot file these forms on your behalf. Deadlines for timely filing remain the same. FROI-04 to be filed within 18 days after the disability event or within ten days after the employer has knowledge of the disability event, whichever period is greater.  If not filed in accordance with these timeframes, may be subject to $300.00 penalty in accordance with Section 25-2(a).  Controverted Claims – Important! Counsel cannot “file” the form; however, counsel should still be involved to identify viable controversies. Need to immediately secure claimant and witness statements, HIPAA authorizations, OC-110a forms for investigation of prior treatment and pre-existing injuries. Counsel should continue to assist in identifying issues to be raised. We have new forms, but are still subject to Rocket Docket rules. Controverted Claims: Example One Emmett the construction worker is injured on 12/10/13.  He reports his injury on 1/15/14.  You want to controvert based on untimely notice.  FROI-04 must be filed by 1/25/14 (ten days after the employer had knowledge of the disability event). Controverted Claims: Example Two Joe Fibsalot alleges a right knee injury occurred on 12/5/13.  He tells his supervisor on 12/9/13, a Monday.  A co-worker tells the supervisor that Joe hurt his knee skiing over the weekend.  Joe is taken out of work by Dr. Believesanything on 12/12/13. When should your notice of controversy be filed?   As the employer wants to controvert from the outset, you can file the FROI-04, and it must be filed by 12/23/13 – 18 days after the disability event.  Note that ten days from the date the employer had knowledge was 12/19/13. Controverted Claims: Filing Deadlines FROI to be filed within 18 or 10 deadline. SROI-04 within 25 days from indexing or within 18/10 whichever is greater. For example, case is being controverted for date of accident 1/2/14.  You file FROI-00 on 1/12/14, but claimant does not file a C-3 or any medical indicating a work related injury.  The claimant files a medical report and C-3 on 1/31/14.  The WCB indexes claim on 2/5/14.  SROI-04 filed on 2/20/14 (within 25 days from indexing). Controverting a Claim: continued If a paper C-7 was filed before you went live with EDI, then a FROI-UR would be the appropriate first filing. In other words, if the claims administrator has not previously filed a paper C-7 or any other FROI, then the Board would expect a FROI-04 when controverting the claim.  If you have already filed a FROI, then a SROI-04 would be expected to controvert the claim. Controverting a Claim: Denial Codes Select the Right Denial Codes: Example Mr. Driver alleges a low back injury occurred while he was delivering packages on Christmas Eve, 12/24/13.  He reports the injury to his employer on 1/10/14.  Employer reports that the claimant was actually done with his shift and slipped in a parking lot while doing last minute Christmas shopping, as reported by his ex-wife who works for the same company.  Carrier promptly filed a FROI-04 on 1/18/14 (within ten days of when the employer was notified of the “disability event”) and raises “2E – no injury per statutory definition” but nothing else.  Select the Right Denial Codes, cont’d. The pre-hearing conference is scheduled for 2/16/14 and carrier sends the notice to its counsel on 2/1/14.  Counsel realizes that additional issues should have been raised including 1D (does not meet statutory definition of accident), 2D (no medical evidence of injury), 1E (deviation from employment) and 1I (presumption does not apply).  Counsel quickly files a SROI-02 and PH-16.2 raising the additional issues, but advises that the Judge may preclude carrier from pursuing the “accident” defenses as they were not timely raised. Select the Right Denial Codes, cont’d. Denials will have to be certified by legal counsel at the pre-hearing conference. If FROI-04 or SROI-04 filed, and additional issues need to be raised, then a SROI-02(change), can be filed to amend your notice of controversy.  However, deadlines for issues to be raised, (accident or employer/employee) relationship must still be considered. Some codes can be used to mean more than one thing. There are no specific occupational disease codes, so if you are raising no OD, clarify in the denial narrative. Denial Reason Narrative Denial reasons may be clarified using DN0197 (denial reason narrative).  This will be important to use, to clarify the issues being raised, as many of the denial codes have multiple meanings.  For example, denial code 3E means “no insurance policy in effect on date of accident,” which can be used to raise an issue of proper carrier, or cancellation of coverage. Accepting a Claim Without Prejudice Carriers may still accept claims without prejudice under 21-a, and are required to file a SROI, presumably a SROI-IP (initial payment) immediately upon beginning temporary payment of compensation or for treatment.  On the SROI form, there is an area indicating “agreement to compensate” with options of “with liability” or “without liability.”  If accepting under 21-a, use “Agreement to Compensate Code” (DN0075) with value of “W” (without liability).  You will then have a year from the date of filing in which to controvert the claim, although you will have to continue payments of medical and indemnity while performing further investigation.  If you controvert at some point within year: file a SROI-04. Partial Denials Denying indemnity in whole, but paying for medical. Use FROI-00 and SROI-PD.  Example would be a case where there is no medical evidence to support lost time, or a claim where the injury is not disputed but any claim for lost time is: for example, claimant is injured, and refused light duty offer from employer. Denying indemnity in part, not medical. Use FROI-00 and SROI-PD.  This would be a situation where there was medical evidence to support lost time for a short period, but then no further evidence and claimant remains out of work. New Claims: Practice Points Coordinate with employers to determine whether or not a claim should be controverted: ¡C2, Witnesses contacted for statements, HIPAA releases Involve counsel before filing FROI-04 or SROI-04 to review appropriate issues/investigation:  ¡If counsel assists you with the denial, then the file can be monitored so that the PH16.2 is timely filed. Practice Points, cont’d. Paper copies of FROI and SROI denials must be served on the claimant, claimant’s counsel and other parties: email/fax if accepted by claimant’s counsel and claimant Paper PH-16.2 statements are still required to be filed 10 days prior to pre-hearing conference. If you file the denial on the 25th day: ensure confirmation that it was received: direct filers will receive immediate notice; flat filers need to check for successful transmission. Practice Points, cont’d. If you use a flat filer, file a few days before the deadline to verify that it was accepted by the Board. If a file is rejected, it will because of technical defect not substantive reason. IMPORTANT:  FROI must always be filed on or before the 18th day after the disability event or within ten days from the date that the employer has knowledge of the disability event.  This applies to all claims!


Presented by Rebecca M. Guerra, Esq.

Ongoing Claim Management 1.SROIs 2.Reporting benefit changes 3.Legacy claims 4.Sub-annual reports 5.Acquired claims 6.Practice points SROI Subsequent Report of Injury Replaces C-8/C-8.6 (reports change in indemnity/wages because of some event) MTC determines purpose of report: Board has provided “MTC Filing Instructions” SROI-04/SROI-PD used in denials; remainder of SROIs used on accepted/established claims On ongoing claims, generally required to be filed within 16 days after event occurred which led to change in benefits; on new claims where initial payment, file within 18/10.    SROIs, cont’d. Report all penalties, medical expenses, M+Ts, atty fees, interest; do not need to report defense fees presently Do not need to file a SROI every time you make a payment! Benefits broken down by type (total/partial) Uses “through” dates, not “to” dates Document overpayments, apportionment, third party offsets Indemnity Benefit Reporting SROI-CA: Reportchange in rate only ¡e.g. change to AWW SROI-CB: Report change in benefit type and benefit rate ¡e.g.  change from TT to TP SROI-PY (payment report) lump sum payments (32), payment of awards, penalties SROI-S_ (suspension) ¡ ¡ Other SROIs Reduced Earnings Resumption of benefits Wages resumed General Data Element Changes: FROI-02/SROI-02 Benefits exhausted: SLU/PPD benefits Legacy Claims Claims which were in Board database prior to eClaims and already have WCB Number (JCN) When reportable event occurs, administrator reviews “extract” file (FROI-UR if present; FROI-00/AU if not) FROI-UR: file with appropriate SROI(s) on legacy claim when some reportable event occurs SROI-UR: summarize historical information regarding the claim; only required if indemnity paid previously Sub-Annual Reports SROI-SA: two per year on open cases (not marked NFA or reopened after being marked NFA) or closed cases (NFA) with continuing indemnity payments Due on open “medical only” claims Each SROI-SA is a cumulative total of each benefit paid to date on the claim Due 180 days from date of accident or where no accident date/partial: from filing of first FROI While the regulations would not seem to impose this requirement on legacy claims, Board’s FAQs say otherwise Mailing to parties optional SROI-SA Deadlines Acquired Claims  Required to report in eClaims when a claim has been acquired from another administrator FROI-AQ (can be used if prior claim administrator): within 10 days of acquisition FROI-AU (if no FROI/SROI previously filed): within 30 days after the rejection of FROI-AQ SROI-AP (payments begun): within 16 days Need to report “unallocated prior indemnity benefits”: what prior claims administrator paid in lump sum SROI Practice Points Use the proper MTC. Pay attention to filing deadlines, which may vary by reason for filing. Use the narrative fields for explanations, e.g., SROI-SJ suspension – explain why suspending. Serve on claimant and claimant’s counsel. File attachments directly with the Board.


Presented by David L. Snyder, Esq.

Summary of Changes Elimination of C-2 filing Elimination of C7, C-669, and C-8/C-8.6 SROI-SA Sub-annual reports Denial codes FROI/SROI section in eCase Trading partners How Counsel Can Assist With eClaims Determine compensability of claim and legal defenses Assist with denial codes and narrative explanations Prepare PH-16.2 and advise on evidence needed to defend claim Advise on potential penalties and repercussions for filing deficiencies Practice Points Pay careful attention to ensure that the right MTC code is utilized based on the event being reported Use narrative fields to explain when necessary Make sure you receive “Transaction Accepted” acknowledgement of transaction; if rejected, redo C-2F paper form not to be filed, but still should be completed and retained by employer Separately submit any attachments to the Board via email, fax or mail Practice Points, cont’d. If either of the parties of interest (POI) have designated email for service, the carrier can serve the PDF via email for that POI, but if claimant does not à PDF must be served by mail on claimant Mail the printable report, when required, to the claimant and his or her counsel within one business day File reports well prior to 6:00 P.M. to ensure successful transmission (check Board FAQs for update – certain days extended to 8:00 P.M.) Additional Resources Email:

Telephone: 877-632-4996, Option #7; or call any of the Board’s District Office Numbers and select Option #5 Website: à eClaims link Questions and Answers If a FROI-00 has no witness names would the employer be prevented from producing witnesses at a hearing? ¡The FROI-00 is the equivalent of what was included on the paper C-2 today so same rules would apply. However, if it is a controverted claim (FROI-04) it would be different since the PH-16.2 asks for this and all controverted rules will remain the same. How does the FROI-02 differ from the SROI-02? ¡They are only different in what you can change. The FROI and SROI have different data elements in some instances. For example, the Claimant's Address and Phone are FROI data elements only. A FROI-02 can be submitted anytime in the life of the claim, so submission of a SROI does not stop the carrier's opportunity to submit the FROI-02 if they found it necessary. Also, I just wanted to note that the FROI-02's are only "servable" on the parties if you are changing Full Denial reasons. So a carrier who is just changing a claimant's address is not required to mail a copy of the 02 to the parties like they would other certain FROI's and SROI's. Questions and Answers What do you do when a SROI is not “required” but you want to make parties aware of what has been done with payments?  For example, a client advised that they were unsure what MTC to file and contacted e-claims, and were told that they did not need to file anything.  In this situation, three periods were awarded by the Judge that were previously held in abeyance.  The carrier was allowed to credit an overpayment so no money was moving.  Optional – file SROI-PY.  Questions and Answers The state will provide an extract list of legacy claims that were reported prior to the ‘go live’ date.  FROI-URs will be generated on these.  We may have some claims in our system that pre-date the go live date that will not be included on the extract list.  Our system will automatically generate a FROI-OO, which is a first report.  Will these be considered late filings of first reports and will we be subject to penalties on these?    ¡No. If a case is not listed in the extract file, the Board specifically directs you to file a FROI-00 or FROI-AU.  As that is their explicit direction, you will not be penalized for complying with it. Are legacy claims that are already in payment exempt from the New York agreement to compensate code requirement? ¡Per the Element Requirements table available on the Board’s website, the Data Element of “Agreement to Compensate” is listed as “if applicable” for FROI-UR filings on legacy claims.  It is not mandatory.


Presented by

Susan R. Duffy, Esq.

Hamberger & Weiss

Impairment from Conditions Other than Spinal

} Asthma (Chapter 12.2)

} Traumatic Brain Injury (Chapter 15)

} Psychiatric (Chapter 17)

} Pain (Chapter 16)


} Impairment Due to Asthma

} Diagnostic work up must confirm diagnosis of asthma

} Compatible history of episodic symptoms

} Airflow obstruction that is at least partially reversible

} Alternative diagnoses are excluded

 Medical Impairment Class—Asthma (Table 12.2)

} Severity rankings include A, B, D, F, L, R, Z

} If claimant does not meet all the necessary requirements for any one medical impairment class, objective tests should be given greater weight than other criteria in determining the appropriate class


} Asthma Class 1(a): Severity Ranking “A”

} Intermittent Asthma Symptoms: not more than two times per weekor nighttime awakening not more than two times per month.

} And all of the following:

} No interference with normal activity

} Rescue medication for symptom control not more than two times per week

} Lung function normal FEV1 and FEV1/FVC between exacerbations

} FEV1 more than 80% predicted

} Exacerbations up to one time per year requiring systemic oral corticosteroids


} Asthma Class 1(b):Severity Rank “B”

} All of the above but exacerbations more than two times per year requiring steroids


} Asthma Class 3:Severity Ranking “L”

} Daily symptoms or nighttime awakening more than one time per week but not nightly

} And all of the following:

} Some limitation of normal activity due to symptoms

} Rescue medication needed not more than one time per day

} Lung function FEV1 between exacerbations of more than 60% but less than 80% predictedor FEV1/FVC reduced by less than 5% of predicted

} Exacerbations more than one time per year requiring steroids


} Asthma Class 5:Severity Ranking “Z”

} Persistent severe symptoms throughout the dayor nightly awakening due to symptoms

} And all of the following:

} Extremely limited in normal activities

} Rescue medication required several times per day

} Lung function: FEV1 between exacerbations less than 35% predicted

} Exacerbations more than one time per year


} Traumatic Brain Injury (Chapter 15)

} Intended for residuals resulting from organic injury to the brain.

} Distinction among classes reflects impact on activities of daily living and ability to function in the workplace.

} Episodic neurological disorders includes:

     Seizure disorder

     Vestibular disorder

     Neuro-ophthalmologic disorder or oculomotor



} Medical Impairment Brain Class 2: Severity Ranking “A” to “C”

} “Nuisance” level residuals with only minor impact on ADL

} Cognition – minimal cognitive or memory deficits do not materially impair ADL or work capability

} Language deficit no more than minimal

} Emotional disturbances, fatigue, lethargy minimal and and transient

} Episodic sleep disturbances are minimal

} Episodic neurological disorders must be completely controlled and not interfere with ADL


} Brain Class 4:Severity Rank “Q” to “S”

} Not completely independent in ADL, requires some type of supervision, assistance or guidance at times

} Cognition (Rancho Los Amigos Scale—Revised Level 7)

} Mild to moderate language deficit

} Emotional/behavioral disturbances or personality changes moderate, disproportionate to situation and consistently present

} Episodic sleep disturbances are moderate and interfere with ADL

} Episodic neurologic disorder that is not completely controlled and markedly interferes with ADL

Psychiatric Impairment (Default Guidelines – Table 17.3)

} Post-traumatic neurosis, post-traumatic stress disorder and other causally related psychiatric conditions

} Should have psychiatric and psychological evaluations and opinions as well as psychological and/or neuropsychological testing

} Impairment evaluation should include impact of the psychiatric impairment on functional ability, including ADL

} Document impact on ability to function in the workplace, including activities relevant to obtaining, performing and maintaining employment

} No “A” to “Z” ranking


} Pain (Chapter 16)

} Designed for individuals with extraordinary, severe, persistent painful conditions

} Extent to which pain symptoms can reasonably be accepted as consistent with objective medical evidence

} Examples include headache following severe head trauma or skull fracture, Chronic Regional Pain Syndrome (CRPS – Table S 16.2)


} Pain Impairment Rating: Yes or No

} Extraordinary, severe, persistent pain with all of the following:

     Reasonable medical basis for pain

     Consistency of pain over time and situation

     Consistency with anatomy and physiology

     A pain disability questionnaire score of at least 101

     No behavior that is inconsistent with pain symptoms


} Impairment of More Than One Body Part or System

} Not a mathematical combination of severity rankings

} Consider impact of each impairment on function and LWEC to determine cumulative effect

} Impact of impairments on ability to perform specific job functions of particular occupation


For further information, please contact:

Ronald Weiss, 585-262-6390,

Mark Hamberger, 716-852-5200,


Presented by:

Renee E. Heitger, Esq.

Hamberger & Weiss


Livingston County, 2011 WL 5618432 (WCB No. 79905338)

3 Big Questions:

1)     Does the Chair have the Statutory Authority to issue the MTG and 12 NYCRR 324?

2)     Are the MTG and 12 NYCRR 324 contrary to the Statute, WLC Section 13?

3)     When will treatment for an exacerbation be deemed consistent with the MTG?


Legal Analysis re: Question 1

WCL Section 117 authorizes the Chair to make reasonable regulations consistent with the provisions of this chapter, and authorizes the Board to adopt reasonable rules consistent with and supplemental to the revisions of this chapter, so long as they are rational and not arbitrary and capricious.

WCL Section 141 authorizes the Chair to enforce Regulations & Orders.

WCL Section 142 grants the Board the power to hear and determine claims for compensation or benefits and power to require medical service for claimants.

Comparison to 12 NYCRR 300.38(f) which requires timely, PH-16.2 in controverted cases or all defenses waives.


Answer to Question 1

Yes, Chair has Regulatory Authority to promote overall Statutory framework of WCL Section 13, and provide swift and sure determination of scope of reasonable and necessary treatment.

Therefore, the MTG and 12 NYCRR 324 were lawfully promulgated.


Legal Analysis re: Question 2

WCL Section 13(a) requires the employer to pay for treatment for such period as the nature of the injury and process of recovery requires.

However, no payment required for unnecessary, duplicative or inappropriate treatments and tests.

Claimant is entitled to needed care, but not unlimited and unchecked.

MTG are a logical supplement to the statute, designed to decrease disputes and increase timely payment.

Burden of proof is on Treating Medical Provider (TMP) to establish evidence to support variance.

Basis for opinion

Claimant agrees

Why alternatives not appropriate

And if frequency and duration issue,

Objective functional improvement with treatment

Reasonably expected to improve with further treatment.


Answer to Question 2

MTG comport with the spirit and intent of, and are not contrary to Section 13(a), in providing appropriate and medically necessary treatment.


Legal Analysis re: Question 3

General statements not supported by documented objected measures of functional improvement are insufficient, e.g.:

Periodic flare-ups with gradual and insidious onset.

Treatment decreases pain and restores and maintains positional tolerances and ROM.

Suspects continued exacerbations will occur.


Answer to Question 3

An exacerbation must be fully documented by

When and how it occurred.

Show objective changes from baseline function.

Show claimant’s response to treatment with documented measures of functional improvement.

Sometimes documenting past history of exacerbations supports that future exacerbations are likely.


Medical Director’s Office BulletinMDO-2012 #1

What is an exacerbation?

Temporary worsening of prior condition by an exposure/injury.

Following transient increase in symptoms and signs, and decrease in function, claimant recovers to baseline.


Variance Required?

Not for initial treatment if consistent with MTG.

Yes, if inconsistent, such as beyond recommended limits, or not showing objective functional gains.


What are the documentation requirements?

Reiterates findings by Board Panel inLivingston Co.


Treating provider cannot request treatment for future exacerbations.

What are the most relevant general principles pertaining to exacerbation?

General Principal  1:Medical Care

General Principal  3:Positive Patient Response

General Principal  4:Re-evaluate Treatment

General Principal  5:Education

General Principal 10:Active Interventions





How can objective functional improvement be documented?

Initial evaluation—compare to pre-exacerbation


Objective functional findings/abilities

Return to baseline (pre-exacerbation exam)?


If function not at baseline, what gains are expected and what treatment is planned in order to get there?

Ultimate goal: return to pre-exacerbation function


What forms to use?

C-4.2 or EC-4NARR if treatment consistent with MTG.

MG-2 if not consistent.


Additional Questions answered byLivingston Co.

Contrary medical evidence is not required to deny variance if

Treatment done before variance

Treating provider failed to meet burden of proof

Such denial must be articulated.

To respond to variance, no IME or formal record review is necessary, medical professional opinion is acceptable.

Suggests that partial granting of variance request is acceptable if treating provider did not meet burden of proof.

Full Board Review request was denied inLivingston Co., but Notice of Appeal to Appellate Division filed.

To be continued . . . .


Practice Tips

If you believe there is a Burden of Proof issue, specifically raise it on the MG-2 denial citing §324.3.a.3.

If you only raise a Burden of Proof issue, and the Medical Arbitrator or ALJ disagrees and finds the TMP met his or her burden, then the treatment will be authorized.

Therefore, if you want to preserve your right to submit a contrary medical opinion, you cannot wait and it must be submitted with the denial.  Include Burden of Proof and the contrary medical opinion as the basis for denial.


The contrary medical can be from an IME, a records review with an IME or authorized provider, or from your medical professional.  Watch the deadlines!


If you obtain a contrary medical opinion, make certain your consultant comments on more than just the maximum amount of treatment permitted under the Guidelines and focuses on the substance of what TMP has provided to support his variance request, as TMPs are getting more proficient in supporting their MG-2 requests.

If there is no evidence of a re-examination by the TMP within the first 2-3 weeks after initiating treatment, TMP really cannot meet Burden of Proof.

True exacerbations don’t require


           MG-2.  TMP frequently still utilize them. If the criteria outlined in the Livingston Co. case and the Medical Director’s Office Bulletin are not met:

Deny the MG-2 specifying that the criteria required to establish an exacerbation have not been met.

If there is no MG-2, file a C-8.1(B) objecting to treatment citing the MTG issues.


More relevant Board Panel Decisions

Place Optical Co. Inc., 2012 WL 369707   (WCB No. 78511469)

Prior WC Decision authorizing treatment without term limit, end date or statement that treatment authorized for life does not preempt MTG.

Suggested that a prior valid written stipulation (pursuant to 12 NYCRR 300.5) is binding.


Delphi Harrison, 2012 WL 607066            (WCB No. 80100230)

Treating provider may not collect fees from claimant for treatment for work-related injury.

Will be referred to Office of Health Provider Administration for review and appropriate action.


Evergreen Painting Studios, 2012 WL 606857 (WCB No. 00714529)

MTG do not apply to consequential headaches despite that they are consequential to neck, a covered site.


Vastly different opinions on medical necessity and appropriateness of prescription medications resulted in WCB referring the issue to its impartial specialist.

Note: Here C-8.1’s were filed against treating provider for prescriptions, but if filed against pharmacy, in some cases, examiners are simply advising carriers that C-8.1’s are not appropriate against a pharmacy, but direct employer/carrier to notify pharmacy, with copy to claimant and attorney, of the objection.


Tompkins Metal Finishing, 2011 WL 6963865 (WCB No. 70501432)

RFA-2 to address treatment with prescription narcotics filed prior to 12/1/10, based on pre-MTG IME.

WCLJ authorized narcotics per MTG at 12/6/10 hearing.

Board cited its Subject No. 046-457 which states

“The Medical Treatment Guidelines do not require, and are not intended to recommend, the immediate cessation of prescription narcotics… for claimants who have been using such medication long term.




There are very significant health risks associated with the sudden withdrawal of narcotics and other pain medications. The MTG allow for the use of pain medication beyond the maximum duration.Therefore, carriers should continue to pay for these medications without a variance request.”

Board found no variance request required and the WCLJ properly applied MTG in authorizing narcotic medications and properly found trial moot.


However, thereafter, variance request was filed, denied based on medical professional opinion, and development of the record took place with testimony of treating provider and prior IME.

WCLJ found Board’s prior decision only addressed whether variance was needed immediately after effective date of MTG.


WCLJ found treating provider did not meet burden of proof in establishing variance for further narcotics, and authorized weaning program recommended by IME.

Claimant appealed . . To be continued.


Practice Tips

Before a claimant begins using medication “long term,” notify the prescribing doctor from the very beginning that the Medical Treatment Guidelines apply and inform him that those Guidelines generally state “narcotic medications should be prescribed with strict time, quantity and duration guidelines and with definitive cessation parameters. . . ” Then refer the TMP to the Guidelines for specific details.


Consider C-8.1(B) and (A) if TMP does not provide this treatment plan for prescriptions.

Consider early IME if medications continue beyond the maximum.

If a claimant is already on medication long term, obtain an IME with a clear focus on the various prescription medications being utilized, review of those prescription medications and any tox screens, and have the doctor comment on the medical necessity and appropriateness of those ongoing medications. If not medically necessary and appropriate, have the doctor outline a weaning program which you are willing to authorize. Then request a hearing to address the issue.

Request that the prescribing doctor conducts regular tox screens to ensure compliance. They should provide the results.


If abnormal, consider IME for medical necessity and appropriateness, and treatment plan.

If multiple providers prescribing medication, advise each what else is being prescribed and ask if still medically necessary and appropriate.  Consider IME.







Subject No. 046-469

Enclosed proposed CTS Treatment Guidelines

Requested comments by 12/1/11.

Nothing new since then.


Proposed Guidelines


           ∙“Both documentation of appropriate symptoms and signs and a statement attesting to probable work-relatedness must be present for a CTS claim.”


History and Exam

Objective clinical findings should have preference if findings on clinical exam and other diagnostic procedures do not complement each other.


Laboratory testing rarely indicated unless another condition suspected.

Establishing work relatedness


Outcome (diagnosis)

Relationship to work stated as a “probability”

Usually see

Forceful use of hands, wrists

Repetitive use combined with some force

Constant firm gripping of objects

Moving or using hand and wrist against resistance or with force

Exposure to strong regular vibrations

Regular or intermittent pressure on wrist


Making Diagnosis:

Signs and symptoms



Non-operative treatment


Wrist splint at night

Restrict activities like forceful grip, awkward wrist position, repetitive motion

Patient education

RTW ASAP including light duty

Steroid injections

Nerve gliding exercises


Generally manual therapy not recommended nor is low level laser, iontophoresis, magnets or laser acupuncture


Surgical indications

Various indications recited.

Of interest, clinical impression of moderate-severe CTS, with normal EDS studies is generally a mistaken diagnosis.  Surgery may be considered only if these criteria are met.

Signs and symptoms are specific for CTS and

Significant temporary relief after steroid injection into carpal tunnel. 

Only under this circumstance is preauthorization required.


Operative procedures

Neurolysis—not proven advantageous

Internal neurolysis never; external neurolysis rarely indicated.

Tenosynovectomy generally only in unusual case when CTS accompanied by R.A. Would need C-4 AUTH.


Post-operative treatment

Home therapy and use of hand.

Immediate mobilization generally shown to be better, but possible splinting is at the discretion of the doctor.

Sometimes individualized rehabilitation program are helpful if no functional improvement or in patients with heavy or repetitive jobs.

Open communication re: RTW. It is the responsibility of the doctor to provide clear restrictions and the responsibility of the employer to determine if temporary LD is available.

Repeat surgery requires C-4 AUTH.




To develop additional guidelines for treatment of work related conditions, starting with management of chronic pain conditions.

9 doctors on the committee as well as a representative of the Business Council of NYS and Art Wilcox representing the NYS AFL-CIO

To be continued. . . . . . .

Question re: Licensing fee, in connection with use of the MTG, being charged by American College of Occupational and Environmental Medicine (ACPEM).

           *See WCB;’s official response attached.



For more information, contact Ronald Weiss at 585-262-6391, or

Mark Hamberger at 716-852-5200,

2012 New York Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity

Presented by

Joseph P. DeCoursey, Esq.

Hamberger & Weiss



     New process for Non-Schedule PPD cases.

     Shift away from medical impairment as sole component in determining percentage disability.

     Determination of SLUs remains the same as under 1996 Guidelines.

     Ultimate Determination of Loss of Wage Earning Capacity (LWEC) left to litigation and negotiation

     Only for evaluation ofpermanent disabilities.

     Buffalo Auto Recovery still good law.


} Effective Date of 2012 Guidelines

     January 1, 2012

     EXCEPT - for claims that already have at least one medical opinion finding a permanent impairment with a rating based on the 1996 Guidelines on or before January 1, 2012, the Board will determine the claimant's degree of permanent disability using the 1996 Guidelines.


} Maximum Medical Improvement

     Process doesn't start until claimant reaches MMI.


           "a medical judgment that (a) the claimant has recovered from the work related injury to the greatest extent that is expected and (b) no further improvement in his/her condition is reasonably expected. The need for palliative care or symptomatic treatment does not preclude a finding of MMI. In cases that do not involve surgery or fractures, MMI cannot be determined prior to 6 months from the date of injury or disablement, unless otherwise agreed to by the parties."


} Effect of LWEC on Benefit Cap

∙The percentage loss of wage earning capacity (LWEC) determines both the benefit rate and the duration of benefits in PPD classification cases.

∙ For non-working claimants at the time of classification, the %LWEC is determined by the process described in this presentation.

∙ For working claimants at the time of classification, the %LWEC is determined by a reduced earnings calculation. Buffalo Auto.


} The 3 Components of LWEC

  1.    Medical Impairment

2.        Evaluation of Residual Functional Capacity

3.        Evaluation of Vocational Factors



} Medical Impairment

     Largest topic covered by 2012 Guidelines

     Impairments to different body parts are divided into categories.

     Physician must objectively assign the category of impairment a severity ranking from A to Z that best fits the claimant at the time of MMI.

     Severity Ranking is based on the estimated impact of the condition on the claimant's overall health and bodily function.

     Chapter 18 (“The Crosswalk”) of the 2012 Guidelines translates each impairment's letter ranking into a 1-6 severity ranking to allow comparisons across different types of impairments.

     Medical impairment cannot be directly translated into loss of wage earning capacity.

     BUT, in general, more severe impairments lead to greater losses of work opportunity and reduced earning capacities. (Chapter 9.3).


} Medical Impairment – How measured

           Example 1:

 Claimant sustained a low back injury after a chair she was sitting on at work collapsed beneath her. She landed on her buttocks. After physical therapy and medications, her symptoms improved. She now has intermittent pain across her low back with radiation into the back of her legs, but not her feet. Her neurological exam is normal.


} Medical Impairment –How measured

Example 1

     Non surgically treated soft tissue spine condition - use Table 11.1

     Claimant meets "Class 2" because of persistence of symptoms without objective clinical findings or correlative imaging findings.

     "Class 2" for lumbar spine on Table 11.1 = "A" Severity Ranking (least severe)


} Medical Impairment –How measured

           Example 2:

 Claimant lifted a 80lb. concrete slab, resulting in a back injury. His MRI showed a L4-5 herniated disc with right L5 nerve root displacement. He failed conservative treatment, leading to a L4-5 surgical discectomy. On exam he has: 1) absent right ankle jerk; 2) straight leg raise with radicular pain in L5 pattern at 30 degrees; and 3) leg atrophy of 2cm, comparing right to left.






} Medical Impairment –How measured

Example 2

     Surgically treated spine condition - use Table 11.2.

     Claimant meets "Class 4" because of surgical intervention with residual symptoms and additional objective findings.

     "Class 4" for lumbar spine on Table 11.2 = "D" through "J" Severity Ranking. Need to refer to supplemental tables to determine exact severity ranking.

           Table S11.4: Radiculopathy Criteria: add up the points from claimant's objective testing. After obtaining point total, refer to Table S11.7 for exact letter Severity Ranking in class.

     Claimant has muscle atrophy, demonstrated by bilateral circumferential measurement -6 points

     Claimant has absent right ankle jerk -6 points

     Claimant has positive SLR -4 points

     Total =16 points

     This translates to an "E" severity ranking.

} Medical Impairment - Crosswalk

     Example 1: "A" Severity Ranking = "1" (least severe) on Crosswalk

     Example 2: "E" Severity Ranking - "2" on Crosswalk

     Even though claimant in Example 2 had more significant injury, treatment, and residual problems, his ranking is only one level higher than Claimant 1 on the Severity Crosswalk.

     Would probably be "mild" and "marked" under 1996 Guidelines.

     Emphasize the Crosswalk!


} Evaluation of Functional Capacity

           "The medical assessment of the injured worker’s residual functional abilities and losses is akey component in a judge's determination of loss of wage earning capacity." (2012Guidelines)

     Physician to document claimant's functional capabilities on new C-4.3 Form.

     Physician to obtain job description of claimant's pre-injury employment and discuss with claimant.

     If alleging claimant can return to pre-injury job, employer to provide job description to physician.


} Evaluation of Functional Capacity

C-4.3 Form

1) Describe the claimant's residual functional capabilities for any work.

2) Determine the claimant's exertional ability.

3) Describe other relevant medical considerations (such as the use of pain medications).

4) Determine whether the claimant could perform his or her at-injury work activities with restrictions.

5) Describe whether the claimant has had any injury or illness since the date of injury that impacts residual functional capacity.

6) State whether the physician has discussed the claimant's return to work or limitations with the claimant or claimant's employer.

7) Determine whether the claimant would benefit from vocational rehabilitation.

} Evaluation of Functional Capacity

     The physician shouldmeasure the claimant's performance and restrictions across the range of functional abilities listed on the C-4.3 form.

     Section F of Form C-4.3 asks the physician to rate the claimant's exertional ability as one of six categories from the Social Security Dictionary of Occupational Titles.

     Categories range from "Less than Sedentary Work" to "Very Heavy Work“.

} Evaluation of Vocational Factors

     Factors to consider include: education, training, skills, age, literacy, English proficiency, and "other considerations“.

     Another form! - VDF-1.

     VDF-1 asks about education, work experience, literacy and English language proficiency.

     No comment on use of vocational experts by Board or carriers.


VDF-1 Form

  1. Age
  2. Education/Training
  3. Past relevant work (limited to job titles within last 10 years)
  4. Language and literacy (self-described as "well," "limited," or "none"

} LWEC Hearing Process

1. Maximum Medical Improvement

    • When one opinion received, Board issues EC-81.8 to other party to respond and claimant directed to complete VDF-1 form.
    • If there is a dispute, litigate MMI with decision in 45 days.
    • If no MMI, process ends (for now).

} LWEC Hearing Process (con't)

2. Severity and Functional Loss

    • After MMI found, Board issues order scheduling a hearing in 60 days for testimony on vocational factors.
    • Parties to take testimony or stipulate to severity ranking and functional loss in the interim.

} LWEC Hearing Process (con't)

3. Vocational Factors

    • Hearing to be held for lay testimonyand summations.
    • No indication that Board will hear testimony or review evidence from vocational experts.

4. Conclusion

    • WCLJ to rule on all issues.
    • No formula or indication on how WCLJ is to weigh the 3 elements of LWEC.



For more information, please contact:

Ronald Weiss, 585-262-6390,

Mark Hamberger, 716-852-5200,