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Workers' Compensation Law Updates

H&W Webinar on Paid Family Leave

This webinar will take place on Wednesday, May 31, 2017 at 1:00pm EST. Click "Read More" to register.

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Posted: Friday April 28, 2017

Video Surveillance Formatting Requirements – A Reminder

Please remember that the Board has very specific formatting requirements for video evidence. It previously described these requirements in Subject Number 046-237. The video evidence must be submitted in on a DVD-R with the file formatted in WMV or AVI format capable of being viewed in Windows Media Player. Failure to adhere to these requirements will result in preclusion of your video evidence!

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Posted: Friday April 28, 2017

Appellate Division Affirms Attachment to Labor Market Requirements

In Palmer v. Champlain Valley Specialty, the Appellate Division affirmed a Board decision finding a claimant not attached to the labor market, noting that among other things, the claimant had not actively participated with the ACCES-VR program, and had not acted in good faith. 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.

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Posted: Friday April 28, 2017

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).

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Posted: Friday April 28, 2017

Workers’ Compensation Laws Changed as Part of 2017-2018 NYS Budget Deal

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.

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Posted: Tuesday April 11, 2017

2017 SGK Prue's Pride Race Info

Please join our Team "Prue's Pride" for the Annual Susan G. Komen Race for the Cure on Saturday, June 10, 2017 at Buffalo Riverworks.

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Posted: Tuesday April 11, 2017

Rare Split Decision from Appellate Division in LWEC Case

On 3/30/17, the Appellate Division, Third Department, in a split decision with a 3-2 majority, decided Burgos v. Citywide Central Insurance Program, et. al., affirming a Board decision finding the claimant to have a permanent partial disability with an 85% loss of wage earning capacity.

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Posted: Friday March 31, 2017

Workers' Comp Reform on Legislative Agenda

With the deadline for the New York State Budget looming, workers' compensation reform is again on the Legislative agenda. Of interest to workers' compensation payers are a trio of bills designed to limit costs in the system related to permanent partial disability claims that were not addressed by the 2007 reforms.

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Posted: Friday March 31, 2017

Recommendations for Expedited Hearings on Medical Treatment Issues

We have noted in recent months that WCLJs have been strictly enforcing the requirement on Board Notices of Hearing regarding the scheduling of depositions in cases involving medical treatment issues.

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Posted: Friday March 31, 2017

Webinar on Paid Family Leave

This webinar will take place on Wednesday, May 31, 2017 at 1:00pm EST. Click "Read More" to register.

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Posted: Friday March 31, 2017

Webinar on Initial Claims Handling

This webinar will take place on Thursday, April 27, 2017 at 1:00pm EST. Click "Read More" to register.

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Posted: Friday March 31, 2017

H&W Webinar on Initial Claims Handling

This webinar will take place on Thursday, April 27, 2017 at 1:00pm EST. Click "Read More" to register.

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Posted: Friday March 31, 2017

Appellate Division Allows Reimbursement to Employer From SLU Without Prior Temporary Disability Award

This case involved a dispute over employer reimbursement for wages paid out of a schedule loss of use award. Claimant argued that the employer should not be reimbursed for time periods where wages were paid but no indemnity awards made. The Court rejected claimant’s argument, noting that schedule loss of use awards are not connected to specific periods of lost time.

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Posted: Wednesday March 8, 2017

Registration Open for H&W 2017 Seminars!

We are pleased to announce that registration is now open for our 2017 New York Workers' Compensation Defense Seminars. Click through to see the agenda and sign up.

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Posted: Wednesday March 8, 2017

Court Affirms Board Refusal to Reopen PPD Case But Rescinds Penalty Assessed Against Carrier

In Andrews v. Combined Life Insurance, decided 1/19/17, the Appellate Division affirmed the Board’s denial of a carrier’s application to reopen a claimant’s permanent partial disability claim to address attachment to the labor market where the claimant failed to respond to inquiries about his efforts to find employment and rejected the carrier’s offer of a vocational assessment.

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Posted: Tuesday January 31, 2017

Appellate Division Decision Creates Challenges for Carriers Seeking to Admit Video Evidence

Maffei v. Russin Lumber Corp., decided 1/19/17, has created potential pitfalls for carriers seeking to introduce video surveillance as evidence. The decision holds that video surveillance must be produced and entered into evidence at the time of an expedited hearing, even if submission of the video was raised for the first time at that expedited hearing. Additional language in the decision may support an argument for extension of this rule to cases outside of the expedited hearing process. We invite you to review our full analysis of the Maffei decision on our website.

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Posted: Tuesday January 31, 2017

H&W Webinar on Medicare Advantage Plan Recovery

This webinar will take place on Thursday, February 23, 2017, at 1 p.m. Click "Read More" to register.

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Posted: Tuesday January 31, 2017

Amendment to VFBL and VAWBL Increases Permanent Total Disability Rate

Recent amendments to Section 8 of the Volunteer Firefighters’ Benefit and Volunteer Ambulance Workers' Benefit Laws increase the rate for claimants with permanent total disabilities (PTD) from $400 per week to $600 per week.

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Posted: Wednesday January 4, 2017

Court Sets Minimum Level of Conduct for Full Disqualification of Benefits After Fraud Finding

In Kodra v. Mondelez International, Inc., decided on 12/1/16, the Appellate Division appears to set a minimum threshold level of conduct for imposition of the discretionary penalty of disqualification from all indemnity awards when a claimant has violated the fraud statute under WCL §114-a.

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Posted: Wednesday January 4, 2017

Appellate Division Rules that Federal Lawsuit for Sexual Discrimination, Assault is 3rd Party Action Requiring Carrier's Consent to Settle

Shiner v. SUNY at Buffalo indicates that when there is any doubt about whether a claimant’s civil lawsuit falls within the scope of the definition of a third-party action under WCL §29, the claimant acts at his or her peril by settling that lawsuit without first seeking consent of the workers’ compensation carrier.

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Posted: Tuesday November 29, 2016

H&W Obtains §114-a Fraud Finding at Appellate Division

In Leising v. Williamsville Central School District, our firm successfully convinced the Appellate Division to reverse a Board finding that the claimant did not commit workers' compensation fraud under WCL §114-a.

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Posted: Tuesday November 29, 2016

Court of Appeals Issues Two Decisions in November

Two new decisions are out from the Court of Appeals, the highest court in NYS and one which rarely accepts WCL cases for review.

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Posted: Tuesday November 29, 2016

Board Announces New Opioid Weaning Process

The Board has announced a new hearing process for opioid weaning issues. The RFA-2 form has been modified to include a new hearing purpose under the “Medical Issues” section of the form labeled “Opioid Weaning under Non-Acute Pain Guidelines.” To use this section of the form, the Board is requiring an Independent Medical Examination or records review which states weaning is appropriate and provides a weaning program or resource.

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Posted: Tuesday November 29, 2016

Recent Developments in Loss of Wage Earning Capacity

On 11/3/16, the Appellate Division, Third Department ruled in three decisions that the Board can consider vocational factors in determining the weekly rate of compensation for permanently partially disabled claimants. This represents a departure from prior decisions regarding the determination of a claimant's weekly compensation rate and clarify that the Board need not base the compensation rate for permanently partially disabled claimants solely on medical impairment.

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Posted: Tuesday November 29, 2016

Hamberger & Weiss Elects Nicole Graci to Partnership

We are pleased to announce that Nicole Graci has been elected as a partner in the firm, effective January 1, 2017.

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Posted: Tuesday November 29, 2016

Court Affirms Need for Active Participation in the Labor Market

In Walker v. Darcon Construction Co., the court found that simply signing up and waiting for work was not enough. The claimant had to pursue other employment or vocational retraining.

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Posted: Wednesday October 12, 2016

Court Again Finds Vocational Factors Irrelevant to Compensation Rate

The Court's language in Franklin V. New England Motor Freight indicates that the same rules apply for temporary and permanent partial disabilities. This is in keeping with the holding in Canales v. Pinnacle Food Group.

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Posted: Wednesday October 12, 2016

Illegal Drug Sale Conviction Forms Basis for Successful Section 114-a Fraud Claim

The principle that an illegal activity, such as drug dealing, could form the basis for a fraud claim under §114-a was litigated by our firm and affirmed by the Appellate Division in Johnson v. New York State Dep't of Transportation, 305 A.D.2d 927 (3d Dep't 2003), which was cited by the court in Adams.

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Posted: Wednesday October 12, 2016

Terranova Case Accepted for Review by N.Y. Court of Appeals

We have now learned that the Court of Appeals has granted leave to appeal, meaning that it will hear the case and, assuming perfection of the appeal by the claimant, make a decision on the merits.

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Posted: Wednesday October 12, 2016

A Primer on Penalties

In recent months, the Board has stepped up penalty efforts against carriers. The good news is that they are often avoidable for the vigilant claims handler. The following general rules should help to avoid penalties...

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Posted: Wednesday October 12, 2016

Board Announces Pharmacy Benefits Plan Recommendations

The Board wants to hear from stakeholders via an online survey. The Board is seeking input into how prescription medication benefits are prescribed, approved, dispensed and paid for in NYS WCL claims.

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Posted: Wednesday October 12, 2016

Special Alert for Third-Party Administrators

New Board Rules effective 10/3/16 (12 NYCRR §300.13 et sec.) do not require service of Applications for Administrative Review, Rebuttals or Applications for Reopening/Reconsideration on third-party administrators even when the Board includes the third-party administrator in the notice of hearing or decision. This means your defense counsel may not receive the Application either and it's up to you to follow up on it.

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Posted: Wednesday October 12, 2016

H&W Webinar on Drug Weaning Strategies

Please join us for a free webinar on November 17, 2016. The topic will be narcotic weaning programs and the use of MTGs to control drug costs.

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Posted: Tuesday October 11, 2016

WAMO Taking Over SFCC S32 Authorizations

Effective 7/25/16, Special Funds is no longer extending settlement authority under Sections 15(8)(d) or 14(6). All authority requests are now being handled by the Board's Waiver Agreement Management Office (WAMO). This means parties must follow WAMO's procedures for requesting settlement authority, including use of its checklist.

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Posted: Friday August 12, 2016

New Board Rules for Applications for Board Review

Effective October 3, 2016, new Board Rules provide that carriers and self-insured employers will no longer be able to stay payment of awards upon the filing of an Application for Mandatory Full Board Review. The new Rules published in the State Register will impose this and other new restrictions on parties filing Applications for Board Review, Applications for Full Board Review and Requests for Reconsideration.

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Posted: Thursday August 11, 2016

Court Gives Carrier Full Credit on SLU After 3rd Party Settlement Without Contribution to Litigation Costs

The Appellate Division, Third Department, found that a workers’ compensation carrier can take full credit on a SLU awarded after the settlement of the claimant’s third-party action without any further contribution to litigation costs for use of that credit. In Terranova v. Lehr Construction Co., 139 A.D.3d 1309 (3d Dep’t 2016), the Third Department held there is no Burns payment when utilizing a third party action credit against a subsequent SLU award.

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Posted: Wednesday August 10, 2016

Department of Financial Services Approves 9.3% Premium Rate Increase

Effective 10/1/16, New York's Department of Financial Services (DFS) approved a 9.3% increase in workers' compensation premiums requested by the New York Compensation Insurance Rating Board (NYCIRB). NYCIRB attributed two-thirds of the rate hike to the 2014 closure of the Special Fund for Reopened Cases (25-a fund).

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Posted: Tuesday August 9, 2016

Opioid Weaning Plans Offer Opportunity to Help Claimants, Reduce Costs

The Board is now issuing decisions consistent with our argument that opioid medications should be weaned in the absence of improved pain and function and replaced with more effective treatments, such as non-opioid medications, behavioral modification techniques, and/or active therapies. This represents a cost savings for employers and carriers and even more importantly, provides a path for injured workers to escape the scourge of addiction.

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Posted: Tuesday July 5, 2016

Board Stops Double-Counting Range of Motion Findings in SLU Awards

Recent Board Panel decisions have confirmed that range of motion deficits for abduction and forward flexion should not be added together in determining schedule loss of use for the arm.

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Posted: Monday July 4, 2016

June Appellate Division Decisions of Note

Decisions were issued in June for issues related to Burden of Proof for Causal Relationship and Penalty for Fraud.

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Posted: Friday July 1, 2016

Cuomo Appoints 6 New Board Members; Beloten Out, Munnelly New Chair

Governor Cuomo named six new Workers' Compensation Commissioners and appointed current Board member Kenneth J. Munnelly as Chair. The new appointments bring the Board composition back up to the full complement of 13 commissioners. The Board has been operating with vacancies since the end of 2014.

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Posted: Friday July 1, 2016

Summary of WCL Basics

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Posted: Friday August 1, 2014

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