On December 30, 2011, the U.S. Department of Labor issued a new regulation excluding all workers employed in the repair of any recreational vessel (regardless of length) from coverage under the Longshore and Harbor workers’ Compensation Act. A recreational vessel is defined as a vessel that is manufactured or operated primarily for pleasure or leased, rented, or chartered to another for pleasure.

At the edges, the new regulation will not impact marina operators, because the LHWCA excludes from the term “employee” those “individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance),” provided the worker is subject to a state compensation law.

When a medical care provider wants to provide specific medical treatment that does not fit the MTG they can request prior authorization for the treatment by requesting a variance. This procedure is similar to a 'Request for Authorization' under WCL Section 13-a(5). The regulation that permits variances is found at 12 N.Y.C.R.R. 324.3.
Variance Basics
A variance is a license to do something that varies from the MTG (Please read my post on the MTG). A treating medical provider must request this approval from the carrier. A variance request must be made even if the claim is controverted or the time to controvert the case has not yet expired.
A variance request must be made before treatment is provided that differs from the Guidelines. Requests made after treatment that differs from the MTG has already been provided will not be considered.
A variance will be sought in four circumstances:

• EXTRA-MTG: The treating doctor believes that the claimant would benefit from medical care that is not within the MTG;
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• NOT RECOMMENDED BY THE MTG: The treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but not recommended;
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• NOT YET RIPE: The treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but not specified at that point in the claimant's treatment; or
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• FREQUENCY: The treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but exceeds the maximum number or frequency limit for that particular treatment.

Variance requests must be made on Form MG-1, 'Attending Doctor's Request for Approval of Variance and Carrier's Response.' The treating physician must complete all of the sections of the Form MG-2, which includes information about the claimant, employer, carrier, the Medical Treatment provider, the body part, the section of the MTG that applies, the specific treatment requested, a statement as to why the treatment is medically necessary, reference to records in the WCB's file, and a certification that the claimant understands and agrees to undergo the proposed medical care.
It is possible for attending doctors to request treatment which is not addressed specifically in the MTG. In those cases, the attending doctor is not seeking a variance from the Guidelines as much as they are asking for permission to do something not contemplated by the MTG. In those cases, the attending doctor must show the same proofs as a doctor seeking simple variance. See N.Y.C.R.R. Section 324.5.
If more than one Treating Medical Provider needs a variance for more than one procedure or test at the same time, Form MG-2.1 should be used. The MG-2 form must be transmitted the same day to the WCB, the carrier, the claimant, and claimant's attorney. Form MG-2 must be sent by either email or fax - mail is acceptable only if the provider does not have fax or email capabilities. N.Y.C.R.R. Section 324.3(a)(3). This is likely to cause problems as the attending doctor is unlikely to have an email address for the claimant or the claimant's attorney. All carriers are required to designate a 'qualified employee' to receive these requests and the WCB is publishing all of the 'qualified employees' contact info on the WCB website.
The medical provider requesting the variance has the burden of proof to show that the treatment requested is appropriate and medically necessary for the claimant. N.Y.C.R.R. Section 324.3(a)(2). The attending doctor requesting the variance must provide:

• the basis for the opinion that the specified treatment or test is appropriate and is medically necessary;
• a statement that the claimant agrees to the proposed medical care;
• an explanation why alternatives contained within the Guidelines are not appropriate or sufficient; and
• any signs or symptoms which failed to improve with treatment provided in accordance with the Guidelines; or
• the objective improvements made by particular treatment and the expected improvements with more of the same treatment. See N.Y.C.R.R. 324.3(a)(3).

The attending doctor may also submit copies of relevant articles from peer-reviewed medical journals which lend support for the variance request but ONLY for treatments not otherwise addressed by the MTG. If the claimant is seeking a treatment (like discography) which has been specifically eliminated by the MTG, then NO AMOUNT of contrary articles in support of the procedure will be persuasive. The attending doctor must make reference to medical reports that get attached to the MG-2 form or already within the WCB's file (E-case).
Insurance Carrier Actions
Each carrier is required to designate a 'qualified employee' who the WCB may contact about any variance requests. The WCB then publishes these contacts on its website. This should aid the treating physicians with identifying who to send the request for variance to.
Upon receipt of a variance request the carrier must decide if it will obtain an IME or review of the records report. If the carrier is going to obtain an IME or records review, the WCB must be notified within 5 business days of receipt. (Receipt of variance is calculated as 'same day' if email or fax transmission is used; if sent by mail then receipt is 5 business days after treating doctor certified it was mailed). The carrier notifies the WCB that they are obtaining an IME or records review by completing Section "D' of the MG-2 form.
If the carrier decides not to get an IME or records review, then the carrier must transmit its response within 15 calendars after receipt of the variance request. If the carrier has selected to get an IME or records review, the response is due within 30 days from receipt of variance request. Obviously, this creates an enormous burden for carriers: it will be a challenge to get an IME scheduled and completed and a report generated and reviewed within 30 days from receipt of a variance request. One response to this time challenge may be to get examining physicians to set one day aside per month for these 'emergent' variance review IMEs.
The possible responses to a variance request are:

• Approval;
• Denial. Remember to issue a denial even if you have already filed a C-7 to controvert the case - controverting the case is not enough - the WCB can rule on variance requests where no denial was issued.;
• "Grant without prejudice." This is only available if the claim has been controverted or the time to controvert the claim has not yet expired.
• Do nothing. if this happens (you do not respond within the time limitations) the Chair will issue an Order of the Chair. This decision will likely result in an approval of the variance. An Order of the Chair issued under these circumstances (untimely or no response) is not subject to an appeal under WCL Section 23.

Denials
The carrier must explain any denial of requested variance in Section "E" of Form MG-2. Any reason for denial that is not raised is deemed waived. The possible grounds for denial are:

• The medical care requested has already been rendered (if the request was submitted after treatment already rendered, an IME or records review is not necessary, See N.Y.C.R.R. 324.3(i)(b));
• The Treating Medical Provider did not meet the burden of proof (appropriateness and medical necessity);
• The treatment requests is not medically necessary or appropriate for the claimant - this would be coming from your IME or records review; or
• The claimant failed to appear for the scheduled IME examination. In this situation, the WCB may extend the time for IME by thirty days. See N.Y.C.R.R. 324.3.

If the denial is based on the grounds that the treatment sought is not medically necessary or appropriate, the carrier must:

• Have the case reviewed by its own medical professional, independent medical examiner, or records reviewer;
• Attach the written report of its own medical professional, independent medical evaluator, or records reviewer;
• Submit citations to peer-reviewed medical journals in support of the denial (if such articles formed the basis of the denial).

What Happens After a Denial?
There are three pathways for resolution to a denied variance request. The first path to resolution is 'informal' discussions between the medical care provider seeking the variance and the carrier. The parties have 8 business days to attempt an informal resolution - and if the dispute can be resolved, the insurance carrier confirms the agreement by completing Section "G" ('Carrier's Granting of Attending Doctor's Variance Request after Initial Denial').
If 'informal' resolution fails, the treating doctor notifies the claimant and claimant's counsel. The claimant can then seek review of the denial by the Board. If the claimant decides to request review, a request for review must be filed within 21 business days of the receipt of denial (once again, 'receipt' is deemed the date of transmission of the denial was sent via fax or email and 5 business days of the denial was sent via mail). If the claimant is represented, the request for review must be on the Form MG-2 (Section F). if the claimant is not represented, the request for review must be in writing (but does not have to be on Form MG-2).
When informal resolution fails and the claimant requests a review, there are two pathways the review can take:

• Submission to a medical arbitrator if both parties agree in writing to the submission; or
  
• By a Workers' Compensation Law Judge through the expedited hearing process ("Rocket Docket").

The choice of either medical arbitration or 'rocket docket' is up to the claimant - the claimant elects the method for resolving the dispute on Section "F" of Form MG-2. If the claimant is not represented then they have 14 days after the WCB responds to select either an expedited hearing or medical arbitration. If the claimant makes no choice the case is set for an expedited hearing.
The carrier may also elect either expedited hearing or medical arbitration - but in the case of arbitration the claimant must agree to it. The 'default' position is that if the carrier makes no election, the case will be set down for expedited hearing.
Medical Arbitrator Process
By agreeing to have the denial of waiver decided by a medical arbitrator, the parties give up the right to an expedited hearing and accept a final decision that CANNOT be appealed under WCL Section 23 (so don't file an RB-89 if you are unhappy with the outcome!). The review is conducted without participation of the parties - the arbitrator reviews the request for review, variance request, and denial (and all papers including medical reports, IMEs or record reviews, and articles from peer-reviewed journals). The Medical Arbitrator then issues a notice of resolution setting forth the ruling and the basis for the ruling.
Expedited Hearing Process
The expedited hearing will be held within 30 days after the period of informal resolution has ended and the matter could not be resolved informally. One or both parties must request the expedited hearing (or not waive the right to expedited hearing). Medical testimony will be taken. If the claimant is unrepresented then medical testimony is always taken at the hearing. if the claimant is represented, then medical testimony may be by submission of deposition transcripts at the hearing (the transcripts must be submitted to the WCB at or before the expedited hearing). Adjounrments are possible, but only for up to 30 days and only for cases in involving complex medical issues of causation or diagnosis.
Which Should I choose: Medical Arbitrator or Expedited Hearing?
At the time of this writing (November 2010) there is no way of knowing which of the the formal paths to resolution will work most to the favor of the carrier. However, I Director recommend that medical arbitration be considered. Why? Because the medical arbitration is conducted by the offices of the Medical Director. The Medical Director was behind the new Medical Treatment Guidelines, so if a 'strict' interpretation of the MTG is desired, one would hope the party that had a large hand in drafting the new MTG would be inclined to affirm the medical treatment paths under the MTG.
Ultimately, the choice will reside with the claimants: unless the claimants agree to medical arbitration, the matter goes to expedited hearing.

Important timelines for variance requests:

• 5 (five) business days to respond if obtaining an IME;
• 15 (fifteen) days for a final response if not obtaining an IME;
• 30 (thirty) days for a final response along with a copy of the IME;
• 8 (eight) business days to discuss denial informally;
• 21 (twenty one) business days for claimant to request review.

Questions? Contact me.

A recent case re-examined the rules regarding reconstructing wages. In Rose Gruzlovic v. Giovani's Trattoria, A-1519-08T1 (App. Div. Decided April 15, 2010), the appeals court reviewed the decision of a Judge of Compensation who had 'reconstructed' part-time wages of a cafeteria worker, resulting in an increased award. In Gruzlovic, the claimant was a 76-year-old woman who worked nine hours per week, earning $10.50 per hour (average weekly wage of $94.50). During the thirteen years the claimant worked for the employer, she did not have or seek additional part-time employment. After the accident at work, the claimant no longer worked, stating simply, "I thought I had my share [of work]."
The Judge of Compensation awarded Gruzlovic 25% permanent partial total benefits, and 'reconstructed' the rate so that the claimant received the 'full' statutory award ($30,420).

Was this correct? Read More...

In a recent published decision, the New Jersey Appellate Division just published a decision finding that injuries arising from an employee's five-mile off-premises trip to run a personal errand - buy a cup of coffee - was compensable. The Court ruled that accidents "occurring during coffee breaks for off-site employees, which are equivalent to those of on-site workers, are minor deviations from employment which permit full recovery of workers' compensation benefits."
This is an extremely liberal interpretation of the ‘coming and going’ rule in New Jersey.
The Statute which controls when and where and injury is compensable states: “employment [starts] when an employee arrives at the employer's place of employment to report for work and [ends] when the employee leaves the employer's place of employment, excluding areas not under the control of the employer; [unless] the employee is required by the employer to be away from the employer's place of employment, [in which case] the employee [is] deemed to be in the course of employment when engaged in the direct performance of duties assigned or directed by the employer.” (See N.J.S.A. 34:15-36.) The Act provides exceptions for
paid travel time;
employees using an employer-authorized vehicle; and
travel by emergency personnel (fire, police) traveling to an emergency.
Generally, off-premises travel to and from work is not compensable, UNLESS the employer provides the transportation.
Further, injuries that occur during on-site lunch breaks and coffee breaks are generally found compensable by the New Jersey courts.
In this new case (Cooper v. Barnickel Enterprises Inc., App. Div. Decided Jan 14, 2010) the Court took note of the fact that the claimant was working on a ‘remote’ job site in a “rural area.” Therefore, the claimant’s was entitled to travel a “reasonable distance” from the place at which the off-site employee was waiting to attend his work-related meeting and the coffee break was equivalent to that of an on-site employee.

New York Claimant Sharon Hammes received workers’ compensation benefits for a permanent partial disability. The employer alleged that she had ‘fraudulently misrepresented’ her injuries and ability to work, and a hearing was held where the employer presented the testimony of its investigator. In addition, the employer presented videotape.
The employer was able to establish, through the investigator's testimony and the videotape evidence, that the claimant worked at a coffee shop serving customers and regularly made candy which was sold at a candy store.
While engaging in these activities, the claimant completed questionnaires stating that she was ‘totally’ unable to work, and stated that “she had not engaged in work activity for any employer.” In fact, the claimant completed 11 separate questionnaires during this period of work, in each claiming that she had no employment.
The WCB ruled that the claimant was a fraud and disqualified her for further benefits. The Board also ordered the claimant to repay the benefits she had already received (pursuant to Workers’ Compensation Law Section 114-a).
On appeal, the Appellate Court found that the claimant had misrepresented her working ability to obtain benefits. The Appellate panel relied on the findings of the WCB that the claimant was not credible, and her statements that when caught working she was “just helping out a friend” were not believable. Further, they discounted her excuse that “she didn’t think part-time work” counted as work, and that she “didn’t think she had to report part-time work” in answering the questions.
Practice Tip: Good follow-up here by the carrier - in reviewing the responses of the claimant and assigning an investigator.
Case: Hammes v. Sunrise Psychiatric Clinic, ___N.Y.S.2d ___ (N.Y. App. Div. 3rd Dep’t, Decided October 29, 2009).

Every year the State of New Jersey Department of Labor issues a new ‘temporary disability rate.’ The rate for 2010 will be $794 per week. The rate for 2009 was $773 per week. To put that another way: according to the State of New Jersey, the average worker employed in New Jersey saw real wage growth averaging 3%.
Every year this rate increases. I have written on this topic every year for the last five years - how does this state TDB rate rise every year? The answer is: because the TDB rate is not really tied to any objective economic indicator. For example, in 2008 the Federal Government (U.S. Bureau of Labor Statistics,)the median weekly earnings of all full-time workers in New Jersey was $948.00 per week. If correct, that would give rise to a New Jersey State TDB rate of only $655 per week for 2008. In New Jersey, the maximum rate of temporary disability for 2008 was $742.00 per week.
As I have written before, the way the Feds and the State calculate ‘average weekly wage’ is different with the net effect that the NJ State Temporary Total disability rates are artificially high.
How much higher? In 2008 New Jersey calculation method yielded a weekly wage estimate that was 9% greater than the Federal estimate of wages.
Presuming that the New Jersey figures are correct for rate of growth, TDB rates for 2009 are too high by approximately $111.00 per week. This is calculated by using the Federal figures for reported wages for 2008 and using New Jersey’s growth factor.
I believe that even New Jersey’s growth factor (3%) is too high: the state has historic levels of unemployment and downward wage pressure is reported in every industry.
Read More...