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Workers' Compensation Law Updates

Analysis of Board's REVISED Draft Pharmacy Formulary and Regulations

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

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Posted: Tuesday November 6, 2018

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

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

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Posted: Thursday October 25, 2018

Clarification on Genduso Decision

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

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Posted: Thursday October 25, 2018

Appellate Division Cases of Note

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Posted: Thursday October 25, 2018

Lyrica Now Included by CMS in WCMSAs

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

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Posted: Thursday October 25, 2018

Board Releases Revised Pharmacy Formulary and Accompanying Regulations

The Board has finally released its revised pharmacy formulary regulations for public comment. Our readers may recall that we published a white paper with our summary and analysis of the proposed formulary in February 2018. The revised formulary does away with the earlier classification of drugs as “preferred” and “non-preferred.” Instead, it classifies the availability of prescriptions depending on the status of the claim (accepted/established or controverted) and the length of time that has passed from the date of injury. The proposed regulations allow for a process of prescribing and dispensing drugs to claimants even where the claim is controverted or where liability has not been established against the carrier. There is no specific requirement that carriers and self-insured employers would then have to pay for the drug if the claim is controverted, but the implication is there. If that is the case, this echoes the Board’s initiative during the eClaims rollout directing carriers and self-insured employers to begin payment of indemnity even in the absence medical evidence of causal relationship. Other regulations regarding treatment issues specifically state that the carriers and self-insured employers are not liable for payments until and unless the claim and condition is established. We would have preferred to see similar language.

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Posted: Thursday October 25, 2018

Court of Appeals Corrects Standard for Permanent Total Disability

On 9/6/18, New York State’s highest Appellate Court, the New York Court of Appeals, decided Wohlfeil v. Sharel Ventures. This decision unanimously reverses an 11/16/17 Appellate Division decision which held that a claimant is permanently totally disabled unless he or she can engage in “gainful employment, not some undefined type of limited sedentary work.”

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Posted: Friday September 28, 2018

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

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

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Posted: Friday September 28, 2018

Appellate Division Reminds Board that Excusal of Late Notice is Discretionary

On 9/6/18, the Appellate Division, Third Department, decided Taylor v. Little Angels Head Start. This case involved a carrier’s defense against a claim based on untimely notice.

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Posted: Friday September 28, 2018

Still No Word on Pharmacy Formulary

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

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Posted: Friday August 31, 2018

Full Board Reverses Panel Decision That Provided Exception to Delta Airlines Attachment Decision

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

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Posted: Friday August 31, 2018

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

In a welcome change, the Board has announced that Form C-8.1A will no longer need to be filed in cases where a carrier denies a request for authorization of a special service with Form C-4AUTH. In the past, a carrier’s denial of treatment requested by an attending physician on a C-4AUTH form required completion of 2 forms, as well as a conflicting medical opinion, resulting in the perverse and uniquely New York requirement of requiring 3 documents from the carrier to deny one request from the provider. The Board announcement is a step in the right direction, reducing the paperwork burden on carriers and eliminating a redundant form.

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Posted: Tuesday July 31, 2018

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

The Board announced earlier this month that it will replace the C–4 family of forms (with the exception of the C-4.3 permanency evaluation form) with the CMS–1500 form. Board Subject Number 046-1079 describes technical specifications for the rollout and states that it will occur in 3 phases, the first of which will commence on 1/1/19. On that date, providers may begin voluntary transmission of CMS –1500 bills through an approved Board electronic clearinghouse and payers will also be expected to accept electronic receipt of same. On or about 1/1/20, the Board will require use of the electronic CMS–1500 billing form through its clearinghouse. Because the CMS-1500 form does not have the space on it for providers to write a history, opinion on causal relationship, or opinion on degree of disability, the Board will require providers to attach a narrative that includes this detail.

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Posted: Tuesday July 31, 2018

Appellate Division Allows SLU Award after Classification with PPD

On 6/14/18, the Appellate Division, Third Department, decided Taher v. Yiota Taxi, Inc.  This decision appears to allow a claimant classified with a permanent partial disability to receive a schedule loss of use award in the same claim as long as no permanent partial disability payments have been paid. 

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Posted: Friday June 29, 2018

Board Continues “New” SLU Guidelines Rollout with New Forms, Training

The Board continues its implementation of its 2018 Impairment Guidelines with Subject No. 046-1067, in which the Board provides new forms that both attending physicians and Independent Medical Examiners are required to use effective immediately in providing opinions on schedule loss of use (SLU). We believe that the required forms continue the Board’s tradition of legislating through forms, but with respect to the SLU issue are generally favorable to the employer and carrier community because they force examiners to perform some actions suggested in the 2018 Guidelines, such as measuring the contralateral extremity.

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Posted: Thursday May 31, 2018

Board Clarifies §15(8) Reimbursement Process Following Board Panel Decisions in Express Solutions and Southco

The Board has followed-up its decisions in Express Solutions and Southco with Subject No. 046-1063, which clarifies the procedure payors must follow in obtaining reimbursement for qualifying expenses under §15(8).

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Posted: Thursday May 31, 2018

Board Virtual Hearings Live in Multiple Districts; Major Changes for Parties Requesting Hearing Record

Virtual hearings are live in the Capital, Binghamton, Brooklyn, Syracuse, and Rochester Districts of the Board as of mid-April, and will come to the Buffalo District on 6/13/18. The new system eliminates the use of in-person stenographers, so hearing transcripts can no longer be requested or obtained directly from the Board. Only an audio recording of the proceeding is available until transcribed by the Board on appeal. Additionally, the virtual hearing process makes “picking up” a hearing without notice from the carrier/employer difficult because our attorneys no longer have access to the Board’s master list of hearings on calendar for a given day. As such, extra care must be taken to ensure our office receives timely notice of any hearings that clients want us to handle.

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Posted: Thursday May 31, 2018

Board Announces Proposals to Improve Medical Care for Injured Workers

On 4/17/18, the Board issued Subject No. 046-1058, which included a number of proposals the Board purports will improve medical care for injured workers.  The proposals include a planned June 2018 regulatory proposal to raise provider fees for services provided on or after 10/1/18. The Board also plans to eliminate the current Board treatment forms (C-4 and C-4.2) and replace them with the use of the CMS-1500 form commonly used by medical providers to bill health insurers.

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Posted: Monday April 30, 2018

Two Board Panel Decisions Establish Board Jurisdiction for Determining §15(8) Reimbursement and Right of Payers to Obtain Reimbursement for Qualifying Expenses Paid More Than One Year Prior to the Reimbursement Request on Newly Established §15(8) Claims

For some time, the Special Funds Group (“SFG”) has argued that the Workers’ Compensation Board did not have jurisdiction to resolve disputes concerning reimbursement to carriers on established WCL §15(8) claims. SFG was able to obtain a Board Panel decision supporting their position and this has frustrated the efforts of carriers seeking reimbursement under §15(8) withheld by SFG. See, Corning, Inc., 2017 N.Y. Work. Comp. 90203937 (9/15/2017). The Corning decision held that the Board did not have administrative jurisdiction over the WCL §15(8) reimbursement process. This left carriers without a forum to resolve disputes concerning §15(8) reimbursement.   On 1/11/18, a Board Panel, upon remand from the Full Board, issued a decision in Express Solutions, 2018 WL 1560704 (WCB #70106478; 1/11/18) in which it disavowed the prior holding in Corning, Inc., 2017 NY Work. Comp. 90203937 and established that the Board has jurisdiction over the reimbursement process as well as the right to adjudicate disputes concerning same. With the decision in Express Solutions, carriers can seek relief from the Board in these matters, subject to the process laid out in that decision.

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Posted: Monday April 30, 2018

New Court Decision Reminds Primary Payers to Rely on Medicare Final Demand Letter in Determining Amount of Conditional Payments

As Medicare primary payers, carriers and self-insured employers should be aware of the Trial Order issued by the Supreme Court of New York, New York County on 3/15/18 in Mayo v. NYU Langone Medical Center, 2018 WL1335262 (N.Y. Sup.) (3/15/18). The Order vacated a settlement on the basis of mutual mistake of the parties because they relied on a Conditional Payment Letter for the amount of a conditional payment lien, rather than a final demand from Medicare. The difference between the amount of conditional payment reimbursement requested in the Letter and the final demand was $142,939.58!

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Posted: Monday April 30, 2018

Hamberger & Weiss Seminars Are Here!

Our annual workers’ compensation seminars are scheduled for 4/10/18 in Buffalo at Samuel’s Grande Manor and 4/24/18 in Syracuse at the Holiday Inn – Syracuse/Liverpool. This year, we will discuss in depth the practical effects of the 2017 workers compensation reforms on permanent partial disability cases, defenses to the Board’s payor compliance program, the “new” SLU guidelines, the Board’s new pharmacy formulary (with a discussion on medical marijuana), the Medicare conditional payment recovery process, and major court decisions over the past year. If you have not yet registered, please contact Heidi Mahoney at hmahoney@hwcomp.com to do so. We look forward to seeing you!

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Posted: Friday March 30, 2018

Board Begins IME Study

The Workers’ Compensation Board is beginning its study of IME’s mandated by the 2017 legislation, which requires the Board to study IME utilization and submit a report to the Advisory Committee by early 2019. As a result, the Board is reaching out to stakeholders seeking input on concerns regarding IME exams, including quality, cost, potential fraud, as well as alternative methods for utilization/assignment of IME’s and practices followed in other states. Our partner, Susan R. Duffy, was invited by the Workers’ Compensation Board as the New York State Bar Association Defense Attorney Representative, along with claimant’s counsel, William Crossett, to participate in the information gathering phase. Susan participated in a conference call with Board participants on March 21, 2018 to discuss concerns from the defense perspective and will be submitting expanded written comments. Preserving the rights of employers and carriers in the selection and utilization of IME’s, and limiting Board involvement, is critically important in protecting your rights in defending claims, so we are appreciative of the opportunity to provide our input and expertise. Please do not hesitate to contact Susan at sduffy@hwcomp.com with any comments or questions about the IME study.

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Posted: Friday March 30, 2018

Board Panel Allows Consideration of Apportionment Between Two Work Related Injuries Before Permanency

The Board Panel in Hamburg Central School, 2018 N.Y.Work.Comp. G1342161 (3/23/18) allowed consideration of apportionment between two work-related injuries during the temporary period of disability, stepping back from a long-standing rule established in the Full Board decision, Byram Hills CSD, 2010 N.Y.Work.Comp. G0070823 (12/31/10) that "there is no basis for apportionment of a temporary disability, and the issue of apportionment should be deferred until a finding of permanency has been made."

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Posted: Friday March 30, 2018

Appellate Division Allows Use of WCL §137 to Preclude Treating Doctor's Report

On 2/8/18, the Appellate Division, Third Department, decided Esposito v. Tutor Perini Corporation. This decision holds that the opinion from a treating physician can be treated as an independent medical examination if it is obtained solely for the purpose of producing an opinion on disability and causal relationship as opposed to medical treatment. If a treating doctor’s report is treated as an independent medical examination, it is subject to all WCL §137 requirements and the Board’s regulations in 12 NYCRR §300.2. The court stated whether an employer/carrier or the claimant requested the examination is irrelevant when determining whether a medical examiner qualifies as an independent medical examiner. The court affirmed the Board’s decision precluding one of claimant’s medical experts based on non-compliance with regulations governing submission of documents reviewed by independent medical examiners to the Board.

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Posted: Wednesday February 28, 2018

Paid Family Leave and Your Workers' Compensation Defense Counsel

The New York Paid Family Leave program is now up and running, with the first covered leaves effective 1/1/18. The Workers’ Compensation Board introduced a robust Paid Family Leave webpage, and has addressed the topic “road show” style at various venues throughout the state. We offered our webinar on the Act in May 2017. As workers’ compensation defense counsel, we regularly receive inquiries about the overlap between Paid Family Leave and workers’ compensation.

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Posted: Wednesday February 28, 2018

Susan R. Duffy Receives Workers’ Compensation Award

We are pleased to announce that our partner, Susan R. Duffy, received the Mary M. Russo-John Sciortino Award from the Torts, Insurance and Compensation Law Section of the New York State Bar Association at its Annual Dinner in New York City. The award is given to a lawyer in recognition of outstanding contribution to the practice of law in the field of Workers’ Compensation. Congratulations Susan!

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Posted: Wednesday January 31, 2018

CRC Announces New Contractor for Conditional Payment Recovery

As many of you know, we perform conditional payment searches and handle conditional payment recovery demands for our clients as part of our Medicare Secondary Payer practice. As of 2/12/18 the Commercial Repayment Center (CRC) will have a new CRC contractor, Performant Recovery Inc. There will be a “dark days” transition period from 2/9/18 to 2/12/18, so we would ask that any conditional payment reimbursement requests (CPN, CPD, NOI, Referrals to Dept. of Treasury) that are due from 2/9/18 to 2/12/18 be referred to us for handling in advance of 2/9/18 so that we can be sure they are timely filed.

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Posted: Wednesday January 31, 2018

Appellate Division Issues Two Important SLU Decisions in January

The Appellate Division issued two decisions in January 2018 on the issue of schedule loss of use (SLU). In the first, Parody v. Old Dominion Freight, the Court held that the Board may selectively adopt and reject portions of expert opinion and testimony, and thus could make a different finding on percentage loss of use than that reached by the medical experts. In the second, Maloney v. Wende Correctional Facility, the Court held that physicians may not add both the values for deficits in anterior (or forward) flexion and abduction in determining percentage SLU of the arm.

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Posted: Wednesday January 31, 2018

Appellate Division Requires Board to Obtain Medical Evidence of Effect of Injury on Claimant’s Functional Abilities in Determining LWEC

On 12/14/17, the Appellate Division, Third Department, decided King v. Riccelli Enterprises, which held that when assessing a claimant’s loss of wage earning capacity (LWEC), the record must contain medical evidence of how the work injury impacts claimant’s functional capabilities. The record in King contained permanent partial disability rankings under the 2012 Guidelines, and a generic 15 lb. lifting restriction. The Court held that this, by itself, was insufficient, and that the physicians needed to explain how the claimant’s permanent medical impairment impacted his ability to perform relevant physical tasks.

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Posted: Wednesday January 31, 2018

Claimants Trying to Prove Re-Attachment to Labor Market Must Show Connection Between Unsuccessful Job Search and Work Injury

On 12/14/17, the Appellate Division, Third Department, decided Pontillo v. Consolidated Edison of New York. The Court held that when a claimant voluntarily retires and tries to claim re-attachment to the labor market, merely producing evidence of an unsuccessful job search by itself is insufficient. The claimant must also prove a causal nexus between the work injury and the unsuccessful job search.

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Posted: Wednesday January 31, 2018

Hamberger & Weiss Elects Stephen P. Wyder, Jr. to Partnership

We are pleased to announce that Stephen P. Wyder, Jr. has been elected as a partner in the firm, effective January 1, 2018. Stephen has been practicing workers’ compensation defense since joining the firm in 2010.

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Posted: Friday December 29, 2017

Board Announces Draft Pharmacy Formulary and Finalizes SLU Guidelines

On 12/28/17, the Board announced draft regulations for a proposed New York State Pharmacy Formulary and finalized the new Permanent Impairment Guidelines for Schedule Loss of Use (SLU) evaluations.

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Posted: Friday December 29, 2017

Terranova Court of Appeals Decision Reminds Board to Not Miss the (Equitable Apportionment) Forest for the (Kelly Decision) Tree

In a decision released on 12/19/17, the Court of Appeals (New York State’s highest court) ruled that the Board erred in allowing a carrier to take full credit for a schedule loss of use awarded after the settlement of a claimant’s third-party action without any further contribution to litigation costs for use of that credit.

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Posted: Friday December 29, 2017

A Reminder Regarding Medical Treatment Denials and Expedited Hearings

If you receive a Notice of Expedited Hearing on a medical treatment issue, that Notice will usually contain language directing the parties to complete depositions prior to the hearing. If that is the case, we strongly recommend that you contact defense counsel to review the file to determine if a deposition should be scheduled. A PH-16.2 should be filed in advance of any expedited hearing, even if the claim is not controverted.

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Posted: Friday December 29, 2017

Appellate Division Split Decision Creates New Standard for Permanent Total Disability

On 11/16/17, the Appellate Division, Third Department, decided Wohlfeil v. Sharel Ventures, LLC. This split 3-2 decision represents a marked departure from previous practice and precedent on how non-statutory permanent total disabilities are determined. Because it is a 3-2 split decision, the employer and carrier have an appeal as of right to New York State’s highest appellate court, the New York Court of Appeals. It is unknown at this time if the carrier/employer will pursue such an appeal.

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Posted: Wednesday November 29, 2017

Everything Old is New Again: Board Releases “Revised” SLU Impairment Guidelines on 11/22/17 for Public Comment

On 11/22/17, hours before the start of the Thanksgiving holiday, the Board issued its revised Impairment Guidelines for schedule loss of use and proposed regulations via Subject Number 046-1005. In a complete departure from the draft proposed guidelines that the Board issued on 9/1/17 (to which the Board removed access to from its website), as well as the statutory mandate contained in WCL §15(3)(x), the new revised guidelines are nothing more than the current guidelines that have been in place since 1996 in a new package with a few minor tweaks that will do little to control schedule loss of use (SLU) costs. The regulations that the Board proposed on 9/1/17 that addressed changes to the SLU process, IMEs, and other things have been eliminated and replaced with a new Section 325-1.26 which incorporates the proposed 11/22/17 Impairment Guidelines by reference and requires their use in all evaluations for schedule loss of use. Please read our Summary and Analysis of the 11/22/17 Proposed SLU Guidelines here.

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Posted: Wednesday November 29, 2017

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

The Appellate Division, Third Department, held in Romanko v. New York University that a claimant who voluntarily self-limits her participation in the labor force is not entitled to indemnity awards. 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.

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Posted: Tuesday October 31, 2017

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

The New York Court of Appeals, in a unanimous decision issued on 10/24/17, reversed the Appellate Division, First Department’s 2016 decision in American 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.

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Posted: Tuesday October 31, 2017

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, primarily 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.

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Posted: Tuesday October 31, 2017

Special Alert: 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 in American 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. Read More for our comment and to review the entire decision.

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Posted: Wednesday October 25, 2017

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 accompanying regulations. For those of you have not had an opportunity to do so, we invite you 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.

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Posted: Friday September 29, 2017

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). The Board’s proposed regulations and impairment guidelines concerning SLU determinations represent a significant departure from prior practice on schedule loss of use awards. Click Read More to read our white paper containing our interpretation and analysis of the proposed guidelines and regulations.

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Posted: Wednesday September 13, 2017

Board Panel Steps Back from Delta Airlines Rule in New Labor Market Attachment Decision

A new Board Panel Decision, Barbella Environmental Tech., WCB #G0796969 (Aug. 7. 2017) introduced a significant change in the law on labor market attachment by requiring claimants still employed by the employer of record to prove labor market attachment if there is objective medical evidence that the claimant could return to work with the employer of record and where there is a realistic expectation that the claimant could return to work with that employer. Prior to this decision, claimants still technically employed by the employer of record did not need to prove labor market attachment because they were presumed to be attached by their continued employment relationship with the employer.

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Posted: Tuesday August 29, 2017

Don't Ignore Loss Transfer Opportunities in MVA Claims

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. Although Loss Transfer and third-party actions are separate legal matters there are overlapping legal issues that intertwine a carrier’s lien, credit and Loss Transfer recoveries.

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Posted: Tuesday August 29, 2017

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.

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Posted: Tuesday August 29, 2017

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

The Center for Medicare and Medicaid Services (CMS) now allows for "Amended Review" of a previously approved Workers' Compensation Medicare Set-Aside Arrangement (WCMSA) supported by new medical evidence. This process is subject to some limitations based on the age of the previously-approved WCMSA and the amount of the new WCMSA requested. Additionally, Amended Review can only be requested once per case. Despite these limitations, the Amended Review process significantly expands CMS's prior re-review process which only allowed for re-review in the event of a clear mistake of fact from CMS or discovery of medical evidence that pre-dated the original submission that was not included in the original submission.

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Posted: Monday July 31, 2017

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

The Board issued Subject Number 046-958 earlier this month to outline its interpretation of the law on labor market attachment and to introduce revised/new forms for claimants seeking to provide documentary evidence of labor market attachment.

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Posted: Monday July 31, 2017

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

The Appellate Division in Mancini v. Office of Children and Family Services, has held that payments under WCL §15(3)(v) are subject to the same cap on benefits as classification awards. Thus, the Board must make a loss of wage earning (LWEC) determination in §15(3)(v) cases. The Appellate Division further held that the cap on §15(3)(v) awards would not begin until the date that the Board makes a LWEC determination, rather than the date that allocation of the claimant’s schedule loss of use award that gave rise to the §15(3)(v) award ends.

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Posted: Monday July 31, 2017

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.

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Posted: Monday July 31, 2017

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

In Deck v. Dorr, the Appellate Division held 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.

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Posted: Thursday June 29, 2017

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

Earlier this month, the Appellate Division, Third Department, ruled that in calculating the end date for a carrier’s third-party “holiday” the entire amount of the claimant’s weekly benefit should be considered, rather than that portion of the weekly amount remaining after payment of Burns payments to the claimant.

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Posted: Thursday June 29, 2017

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 revised C-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.

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Posted: Thursday June 29, 2017

Board Rules that Medical Treatment Guidelines Apply to Out-of-State Treatment

In Hospice, Inc. (WCB Case No. 5951 3410, 5/24/17), the Board 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.

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Posted: Thursday June 29, 2017

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.

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Posted: Wednesday May 31, 2017

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.

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Posted: Wednesday May 31, 2017

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. First, McKinney reinforces the distinction between labor market attachment and the requirement for causal relationship between a claimant’s reduction in earnings and his or her work injury. Second, it partially addresses when the appropriate effective date for suspension of indemnity awards should be when the claimant fails to produce sufficient evidence of labor market attachment. Finally, the decision reaffirms the rule that a claimant has no right to rely on a rejected total disability opinion as a shield against suspension of awards due to insufficient labor market attachment proof.

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Posted: Wednesday May 31, 2017

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. To keep all potential defenses open following classification, we recommend that carriers fully litigate the issue of attachment to the labor market at the time of classification. Following classification, carriers should gather substantial evidence of a voluntary withdrawal from labor market, framing their applications to reopen such claims as issues of voluntary removal, rather than lack of attachment if they wish to re-open the claim to pursue the voluntary removal defense.

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Posted: Wednesday May 31, 2017

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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