New York has a "Special Fund for Reopened Cases" to assume liability for reopener workers’ compensation claims. When a claimant moves to reopen a "stale" case, the employer/carrier requests relief from the "Special Fund for Reopened Cases." By shifting cases over to the Special Fund, the carrier/employer shifts the burden for paying compensation to the Special Fund.

Filing requirements.

There are forms available to the employee seeking “reopener” of the closed claim. A new medical record can be sufficient to reopen the case if it provides notice to the Worker's Compensation Board of the change in condition – in that case, Form C-27 (Medical Proof of Change in Condition in Support of Application for Reopening) should be used. The medical report must demonstrate a new condition and not merely the continuing effects of the original disability or injury.

Time factors.

There are time limitations for the shift of exposure to the Special Fund. These rules are as follows:

• More than seven years from the date of a compensable injury or death and the claim has been disposed of without a compensation award being issued;
• More than seven years has elapsed from the compensable injury or death which was compensated and also more than three years has elapsed from the last date of payment of compensation;
• After death, occurring more than seven years from a compensable injury and either more than three years unless payment of compensation or from acclaimed disposed of without an award.
• Payment for continuing medical care does not bar the transfer of liability under section 25–a (see Beder v Big Apple Circus, decided May 26, 2011, Appellate Division, Third Department).
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This is important factor to consider – as the Worker's Compensation Board does not consider payments for medical services "compensation." Oftentimes in a reopener case, the claimant has been receiving ongoing medical care and indemnity benefits have ceased.

“Closed” status – not as simple as it could be.

In 2011 there were at least nine reported decisions on whether or not the workers compensation claim had been "truly closed” by the Worker's Compensation Board and the requisite amount of time had elapsed, thereby creating a viable claim for relief from the Special Fund for Reopened Cases.

Since 2001 the Board has been marking cases as "No Further Action" rather than stating a case is "closed." This "No Further Action" marking  confuses the issue as to whether or not a case is truly closed at the time of adjudication.

• In the most recent case decided on this topic, Hosey v Central New York DDSO, decided January 5, 2012, the Appellate Division found that the underlying case had not been "truly closed" and therefore the employer could not get the benefit of reimbursement from Special Funds for what they were calling a "reopener claim." In the Hosey decision, the claimant had a 2000 back injury and returned to work in 2002. The claimant continued to work with no additional lost time but had some work restrictions and received ongoing payments for medical treatment. Although his treating physician in 2002 indicated the claimant had a permanent disability referable to the work injury, the issue of permanency was never formally addressed. Although seven years elapsed and the claimant returned to work, the Special Fund argued that the issue of permanent residual disability had remained unresolved and therefore the case was still "open." Despite the fact that no lost time benefits have been issued for the prior seven years, and after three years of litigation on this issue, the Appellate Division upheld the denial of reimbursement for reopener benefits to the employer.
  
• In another case, Sauers v Kmart, decided December 1, 2011, the Appellate Division returned the case to the Worker's Compensation Board for review of a denial of reopener reimbursement. In this decision, the requisite seven year period had elapsed during which time the claimant had not received any medical treatment. Nor had any lost time benefits been issued. However, it was learned that approximately 2 weeks prior to the seven year anniversary of the injury the claimant had seen her treating doctor who recommended she undergo a surgery. The claimant did not want to pursue the surgery that time. Then, a few weeks later, but after the seven year period elapsed, the claimant decided to request the surgery. The employer argued that the case was closed and the appropriate seven-year period had elapsed. They argued that by the claimant decided not to pursue surgery, within the seven year period, the time period had elapsed and the employer should be reimbursed for further medical and lost time. However, the Appellate Division refused to follow that argument and instead referred the matter back to the Worker's Compensation Board for additional proceedings.
  
• The Appellate Division considered whether the case of a claimant who had already pled guilty for fraudulently collecting workers comp benefits while working was “truly closed.” In that case, the claimant made an argument that her condition had worsened and that she was due further benefits. The claimant had a ready been disqualified from obtaining further indemnity (wage replacement benefits) as she had been deemed a fraud after trial pursuant to §114a of the Worker's Compensation Act. In this interesting case, the Appellate Division found because the claimant was a fraud and therefore not do any lost wage benefits the claim was truly closed at that time and that the only payments ongoing were for consequential medical treatment. Therefore, the employer in this case was able to shift responsibility for the alleged reopener or worsening of the claimant's underlying medical condition to the Special Fund for reopener cases. (Palermo v Primo Paint Corporation, decided October 6, 2011).
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Practice tips for adjusters.

First, identify claims where significant time has elapsed from last payment of lost time or permanency benefits. The passage of time is critical to establishing Special Fund exposure.

Next, confirm the case was “truly closed” at a prior proceeding by settlement or by Order of the Workers’ Compensation Law Judge. This will usually involve reviewing old EC-23’s (decisions) in the electronic case file. Knowledge of these reopening rules in the instances where cases been "truly closed" can significantly reduce exposure for New York employers and carriers.

As this issue continues to be raised before the Board and continues to be a steady source of Appellate Division review, it is clear that the rules concerning whether or not cases "truly closed” are nuanced and require a close analysis of the facts and the applicable law in your case.

Is there a notice defense in New York?

New York employers must provide statutory benefits to employees who have an accident and sustain an injury, which arises out of and in the course of employment. The employee must provide notice to the employer within 30 days after the accident. WCL § 18. Timely notice gives the employer the ability to fully investigate the circumstances of the accident when information is available and witnesses can recall the event. Failure to give proper notice may prejudice the rights of the employer to the extent that it may be found to be relieved of its obligation to provide benefits under the law.

What constitutes Employer Prejudice?

Notice must come within 30 days – but the claimant can report it later – and get benefits – if the employer is not prejudiced by this late reporting. Whether or not late reporting prejudices the employer is a fact question for the Board.

New Case on employer prejudice.

In a new case decided December 15, 2011, the Appellate Division reviewed the denial of a claim based on the failure of the claimant to provide timely notice to the employer. In Dudas v. Town of Lancaster, the claimant allegedly injured his ankle in a slip on ice while working at Town Hall on February 28, 2007. The employee continued to work and did not seek medical treatment until 10 days later. The claimant reported the injury as work-related on June 27, 2007. The employer filed denial pleadings raising "notice" as a defense (see my "best practices" recommendations for filing denial pleadings). The employer also obtained the original emergency room intake records, in which the claimant was recorded as stating he was injured when he "fell off a porch" - a story at odds with his "slip on ice at Town Hall" claim.

Here, the Board disallowed the claim and the Appellate Division upheld that denial, as the claimant's failure to report the injury within the time period required by law (30 days) prejudiced the employer's ability to investigate the underlying accident.
Case: Dudas v. Town of Lacaster, 2011 Slip Op. 09050 (N.Y. App. Div., Decided December 15, 2011).

Most-Requested Articles of 2011 . . .

New York 

10) Challenging Wages in Concurrent Employment Cases Post reform.
9) Overview of the New Permanent Disability Guidelines Effective January 2012.
8) When Are "Exotic Performers" not Employees in New York?
7) New York Workers' Compensation settlements.
6) Suicide and Compensation.
5) Applying the "Attachment to the workforce" test to ongoing benefits.
4) Effective Use of video at trial in New York.
3) Applying the Medical Treatment Guidelines to Out-of-state claimant
2) Rejecting Variances Based on Defective Filings.
1) The Medical Treatment Guidelines in Practice.

New Jersey

9) Using Facebook and other Social Media to Nail Frauds in New Jersey.
8) Attorneys' Fee Trends in New Jersey.
7) Reconstructing Wages in New Jersey.
6) Trying a Medical Provider Claim - the Burn Surgeon's Case.
5) Using a "Tie-Breaker" to Resolve a Medical Treatment Dispute.
4) Was It Too Much Facebook or Too Much Work that Killed Cathleen Renner?
3) Using Video at Trial in New Jersey.
2) Penalties for Carrier's Actions in New Jersey and New York.
1) Love and Bullets for Valentines Day.

Longshore and Defense Base Act

5) Initial Reporting under the Longshore Act.
4) Defenses under the Longshore Act.
3) Calculating Wages under the Defense Base Act.
2) The "True Doubt" Rule.
1) New Longshore Rates in Effect.

The workers’ compensation law provides two separate ways for a compensation carrier to obtain reimbursement from the proceeds of a claimant’s third-party settlement:

1. Assert a lien against the recovery for the amount of benefits already disbursed by the carrier. N.Y. Work. Comp. Law § 29(1); or
2. Offset the claimant’s future compensation benefits by the amount of the claimant’s net recovery in the third-party action. N.Y. Work. Comp. Law § 29(4).

Asserting a Lien for Past Benefits Conferred

The workers compensation carrier “shall have a lien on the proceeds of any recovery from” a third party settlement less reasonable and necessary expenditures, such as attorney’s fees. N.Y. Work. Comp. Law § 29(1). The employee may apply on notice to the lienor to the court for an order apportioning reasonable and necessary expenditures including attorneys fees. The court shall apportion such expenditures equitably between the employee and the lienor. Id.

Offsetting Future Compensation Benefits

The carrier must affirmatively preserve its right to offsets, or it may involuntarily waive such right. See Hilton v. Truss Systems, Inc., 82 A.D.2d 711, 444 N.Y.S.2d 229 (3d Dep’t 1981), order aff’d, 56 N.Y.2d 877, 453 N.Y.S.2d 428, 438 N.E.2d 1143 (1982). The claimant’s third-party settlement recovery less the carrier’s lien is credited by the carrier against future compensation payments. The net amount the claimant receives offsets future compensation payments, and no future payments will be made until the credit is exhausted. The carrier may waive the lien or the offset. N.Y. Work. Comp. Law § 29.

The Appellate Division issued a decision last week in a case where a post-2007 claimant had average weekly wages of $3.56 per week in the primary employment (the employment where she sustained the injury). The claimant had another job - a part time position at a retail clothing store, where she earned an average weekly wage of $77.13.

Added together, the Board found a wage of $80.69 per week. The Law Judge issued awards at a temporary total rate of $80.69 per week. The employer appealed - arguing that the award should have been based on the primary wage only - $3.56 per week - because reimbursement for compensation paid for additional amount attributable to the concurrent employment are no longer reimbursable from the Special Disability Fund (as per Section 14(6) of the WCL).

In this case the Appellate Panel ruled in favor of the claimant, finding that there was concurrent employment pursuant to Workers' Compensation Law § 14 (6) and that claimant's benefits were properly calculated based upon both employments.  Despite the weekly wage in the primary employment being nly $3.56 per week, the claimant got the benefit of a much higher rate based on both employments.

Case: Hazel Hope v. Warren County Board of Elections, 512524 (App. Div. Decided Nov. 23, 2011). 

Have a question about calculating wages or rates in a case where there is concurrent employment? Contact Greg Lois.

New York's 2007 reforms promised employers relief from the runaway costs of an out-of-control workers' compensation system by capping indemnity benefit weeks, instituting a system of "preauthorized" treatment to reduce medical costs, and by reviewing the failed disability duration guidelines which established the standards for awards of permanent disability in the state since 1996.

Since 2007, the Board has adopted Medical Treatment Guidelines and the new caps on awards (can not exceed 600 weeks for less-than-total disability) are in effect.

As of January 1, 2012 the “New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity” (2012 Guidelines”) will apply to all cases where there has been no medical opinion finding permanent impairment with a rating based on the 1996 Guidelines (now deprecated). On January 1, 2012 these new Guidelines will apply to all cases where there has not been an estimate of permanent impairment under the old (1996) Guidelines.

Under the New York Workers’ Compensation Law, there are four types of benefits available to an injured worker:

1. Medical treatment. Emergency and follow-up treatment for their injuries.
2. Wage compensation for earnings lost while they recover from the immediate effects of their injury.
3. • This wage compensation is called "temporary total" with the claimant is 100% totally temporarily disabled (cannot work at all) OR
   • "Partial temporary" when the claimant can do some work – but isn't earning their prior level of wages (usually because they can only work part time or have to work at a job that pays less than the work they were doing at the time of the accident). This is calculated as 2/3rds of the difference between old wages and post-accident wages.
4. Death benefits payable to the dependents (usually wife and kids) of a worker killed during the course of employment. This is 2/3rds of their average weekly wage at the time of injury, subject to maximums and minimums, to the wife for life.
5. "Permanency" benefits – these are payments of money to injured worker to compensate them for the "permanent effects" of an accident. As of January 1, 2012 the “New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity” (2012 Guidelines”) will apply to all cases where there has been no medical opinion finding permanent impairment with a rating based on the 1996 Guidelines (now deprecated).

Most settlements resolve the amount of "permanent disability" that a claimant is due - and the new Guidelines directly address how these disabilities are to be compensated.

Valuing Workers' Compensation for Injuries in New York.

The happening of an injury is not enough (by itself) to warrant the payment of an award. Awards are issued for residual permanent impairment. If the claimant is due an award, the amount of money the claimant receives will depend on the nature and degree of the loss. The Workers' Compensation Law breaks down the amount payable into two broad categories: "scheduled losses” and "unscheduled losses."

Maximum Medical Improvement.

Before scheduled or non-schedule (classification) permanent disabilities can be determined, there must be a finding by a medical professional that the injured worker has reached maximum medical improvement (“MMI”). According to the 2012 Guidelines:

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

Awards for permanent disability.

Some specific injuries, such as loss of an extremity, vision loss, hearing loss, or facial disfigurement have scheduled or set payment amounts. Other losses, called unscheduled or classifications compensate the injured worker for injuries which are not on the schedule (such as a spinal injury, disc herniation, a cardiac injury, abdominal injury, etc.) but which cause continuing partial or total disability in the claimant. These unscheduled losses are classified into permanent partial disability and permanent total disability.

The statute envisions two types of permanent disability compensation:

Scheduled Loss of Use.

“Scheduled loss of use" relates to injuries to specific, enumerated body parts which are listed on a "scheduled loss of use chart" (found in this book). This is a fixed amount of compensation for injuries to fingers, toes, hands, feet, arms, ankles, knees, etc.  In other words, the Workers Compensation Law states that if you lose your thumb in accident, you get a fixed benefit – a number of weeks of compensation times your weekly rate – which is determined by the injury.

Classification.

The second type of permanent disability award is called a "classified award” or sometimes it is called a "classification." This term "classification" doesn't really mean anything – it just means the claimant sustained injury to a body part which is not specifically described on the "scheduled loss of use chart." For example, injuries to the head, neck, and low back are considered "classifiable" injuries – and they are compensated in terms of a fixed number of weeks – up to 600 weeks.

Example - Scheduled Loss of Use.

If an injured worker made $200 per week and lost her thumb, according to the Scheduled Loss of Use chart, she would be entitled to 100% loss of the thumb – 75 weeks of compensation. This would be paid at a rate equivalent to 2/3rds (66.6%) of her average weekly wage – or approximately $133.34 per week (two thirds of $200 per week). So in this example, the loss of the thumb would give rise to an award of $10,000 for permanent disability. The other benefit the injured worker would receive is medical treatment for life in regards to the lost thumb.

Example - Injury Giving rise to Classification.

If an injured worker earned $200 per week and sustained an injury to her low back, such an injury (if permanent) could give rise to a classification award. Any amounts already paid to me – the claimant – during the claim for my lost wages – for example, if I lost a few weeks from work – would be subtracted from the overall award.

What a treating doctor must do.

Often, there is not a simple agreement between the parties as to the extent and nature of the claimant's residual permanent disability. In such a case, we will often have a trial. During the pendency of the trial both parties have the opportunity to present their own witnesses.

A treating physician must provide the Board with medical evidence that the Workers' Compensation Law Judge will consider when making his or her legal determination about disability. The health provider can make a recommendation about whether or not the claimant can return to his or her regular employment. If the medical provider states that the claimant can not return to his previous employment, the medical provider should states what medical limitations exist.

The 2012 Guidelines envision that the treating physician’s evaluation of medical impairment should include the relevant basis for the impairment classification, including the relevant history, physical findings, and diagnostic test results and be provided on Form C-4.3.

The C-4.3 evaluation of impairment report must include the following:

1. That the injury occurred on-the-job.
2. Functional abilities and restrictions (if any). The physician should measure the claimant’s ability to perform a range of functional abilities. These should include general abilities (lifting, carrying, pushing, etc.) but also general and specific tolerances (climbing, bending, kneeling, stooping, walking, standing).
3. Exertional ability (using standard classification system - ranging from “Sedentary” to “Very Heavy.”)
4. Psychiatric Limitations.
5. Other Limitations, which would include the impact of medications on ability to operate machinery, for example.

Examining Doctors.

The Workers' Compensation Law presumes that the medical records and reports from both treating physicians and IME doctors will be "adequate, complete, and objective." In reality, medical reports often contain subjective impressions, such as a treating doctor's feeling that a claimant can not return to work based on non-medical factors such as age, education, occupation, etc.

Evaluating doctors are expected to produce reports which measure, to a reasonable degree of accuracy and uniformity, the nature and extent of the impairment experienced by the individual claimant. This assessment should be based upon the loss of structural integrity, pathology, and pain substantiated through physical (clinical) findings.

In order to prepare a report on permanent impairment, the examining physician should do the following:

1. Review the Guidelines.
2. Review the medical records.
3. Perform a thorough history and physical examination and recount the relevant medical history, examination findings and appropriate test results.
4. State the work related medical diagnosis(es) based upon the relevant medical history, examination and test results.
5. Identify the affected body part or system (include Chapter and Table No. for non-schedule disabilities).
6. Follow the recommendations to establish a level of impairment.
7. For a non-schedule disability, evaluate the impact of the impairment(s) on claimant’s functional and exertional abilities.

What the Workers' Compensation Law Judge does.

In disputed cases, the Law Judge considers the employer's defenses and makes a determination regarding accident, notice, and causal relationship. In practice, most cases do not involve disputes about whether or not the accident took place, except for occupational claims, in which there may be serious issues of notice and causal connection. The Law Judge must be made aware of any pre-existing conditions the claimant had, prior claims and awards, and any subsequent injuries or claims.

Non-schedule/Classification Awards Post-Reform.

For dates of injury post March 13, 2007, there are two formula to be applied to distinct classes of injured worker: those workers who have returned to work (in some capacity) and those who have not.

The Working Post-reform Claimant.

Current wage information will be available for the working claimant.

The degree of disability and monetary award will be based entirely on the Loss of Wage Earning Capacity (LWEC). This is simple to calculate:

AWW less Current Earnings / AWW * 100% = LWEC %

Calculating the weekly benefits due a working claimant would follow the following:

Weekly Benefit Rate - 2/3 * LWEC * Current Wages

Example.

Presume a pre-injury wage of $500 per week. After return-to-work, the claimant now earns $350 per week. The calculation would be:

LWEC = (($500 - $350)/$500))*100% = 30%

Weekly Benefit Rate = ((2/3) * .30 * 350 = $70

Under this example, the claimant would receive a weekly benefit of $70 per week, which added to her earned wages ($350) give a total income of $420 per week.

Using the chart (“LWEC and Maximum PPD Benefit”), this benefit would be payable for 250 weeks.

LWEC and Maximum PPD Benefit (Chart).

The Non-working Post-reform Claimant.

If the claimant is not working, the Judge must establish a loss of wage earning capacity based on the facts in the case, considering medical evidence and vocational factors. The Judge is not expected to presume that the wage earning capacity of the non-working claimant is zero.

The calculation for the non-working claimant is as follows:

Weekly Benefit Rate - 2/3 * LWEC * AWW (at time of loss)

Unlike the working claimant, there is no current earnings to base LWEC on. Therefore, loss of wage earning capacity (“LWEC”) is based on three types of input:

1. Medical impairment. The medical impairment evaluation must be performed by a medical professional. The medical professional should apply the evaluation criteria laid out by the Board in the 2012 Guidelines. (For more on this topic, see Chapter 2: IMEs). The physician must document the injured worker’s diagnoses and impairment ranking by body part or system and state the medical basis for the impairment classification, including reference to the relevant history, physical findings, and diagnostic test results.
2. 
   
   
3. Functional ability/loss. The medical assessment of the residual functional abilities and losses is also considered by the Judge in assessing loss of wage earning capacity in the non-working claimant. The functional evaluation (recorded on Form C-4.3) should include the following:
   
   
   1. Functional ability/restrictions: On examination, the physician should measure the injured worker’s performance and restrictions across a range of functional abilities, including dynamic abilities (lifting, carrying, pushing, pulling and grasping), general tolerances (walking, sitting and standing) and specific tolerances (climbing, bending/stooping, kneeling, and reaching). These abilities and restrictions, including specific weight and time limitations, should be recorded on the Form C-4.3. Alternatively, the physician may refer the injured worker to a physical or occupational therapist for completion of the functional measurements and, after the physician’s review, incorporate them into the Form C-4.3.
   2. 
      
   3. Exertional ability: Finally, the physician should rate the injured worker’s residual exertional capacity according to the standard classification system of Sedentary to Very Heavy. The exertional capacities relate to those activities that require lifting and/or pushing or pulling objects. The definitions of each category, which are derived from the Dictionary of Occupational Titles and used in the Social Security system, are as follows:
   • 
     
   • Sedentary: Exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.
   • 
     
   • Light: Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently and/or negligible amount of force constantly to move objects. Physical requirements are in excess of those for sedentary work. Even though the weight lifted may only be a negligible amount, a job should be rated light work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible. NOTE: The constant stress of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.
   • 
     
   • Medium: Exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. Physical demand requirements are in excess of those for light work.
   • 
     
   • Heavy: Exerting 50 to 100 pounds of force occasionally, and/or 25 to 50 pounds of force frequently, and/or 10 to 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for medium work.
   • 
     
   • Very Heavy: Exerting in excess of 100 pounds of force occasionally, and/or in excess of 50 pounds of force frequently, and/or in excess of 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for heavy work.
4. 
   
5. Non -medical vocational factors:
6. • 
     
   • Vocational issues: Education and Training. The Board considers the role of education in a worker’s ability to qualify for different occupations and level of income. The relationship between education and loss of wage earning capacity is complicated by the fact that the impact of education is also generally reflected in workers’ pre-injury wages. Those with more education generally earn more than those with less education, both pre-injury and post-injury. Thus, in determining loss of wage earning capacity, it the court will evaluate the degree that educational achievement affects the impact of a medical impairment on a worker’s earning capacity.
   • 
     
     
   • Vocational issues: Skills. Prior work skills are often as important as formal education in an individual’s qualification for employment. An injured worker with a history of unskilled or semi-skilled work in the past is unlikely to qualify for skilled work post-injury. A worker who has performed skilled work may be able to find other skilled work within his functional limitations, though this depends on the nature of the worker’s job skills. A key consideration is whether the worker’s skills are readily transferable to alternative employment. The transferability of skills from a prior occupation generally depends on the similarity of occupationally significant work activities among different jobs. The similarity can be measured by the level of similarity in the degree of skill involved, the tools and machines used, and the materials, products, processes or services involved.
   • 
     
     
   • Vocational issues: Age. The 2012 Guidelines instruct that age “should be considered in the context of residual function, education, and work experience.” The court will presume that advancing age adversely impacts a person’s ability to obtain employment that involves work that is different from one’s prior work experience or requires developing new skills.
   • 
     
     
   • Vocational issues: Literacy and English Proficiency. The ability to read, write, and speak English fluently is a requirement for many occupations in New York. Those who have limited or no ability to read, write or speak English fluently may still qualify to perform manual labor and other work that does not require interaction with the public or involvement with written documents. Workers who are illiterate or have limited or no English proficiency and, by virtue of their impairment, are rendered unable to perform manual work may have a significant loss of earning capacity.

An employer can deny a case for lack of notice, lack of employment, wrong carrier, or other jurisdictional or substantive reasons by filing a "notice of Controversy" (Form C-7). Once the C-7 is filed, the case will be set down for an expedited hearing within 30 days. The Act also requires that a "Pre-Hearing Conference Statement" (Form PH-16.2) must be filed 10 days before the Expedited hearing. See 12 NYCRR 300.38(f)(4). If the Pre-Hearing Conference statement is not filed on time, all defenses are waived.

We counsel our clients that if you are denying a case, file a Pre Hearing Conference statement at the same time - to avoid the potential for failing to file the Statement (Form PH-16.2) within the 10 days. There is just too much that can go wrong - late notice of the hearing date, no notice at all, etc! If you have enough information to justify a denial, you have enough information to fill out the Pre-hearing Conference Statement - so go ahead and file the PH-16.2 at the same time.

We think he best practice is to have outside counsel handle the entire process! More commonly, we see the carrier file a C-7, then refer the claim to outside counsel. This introduces delay and a possible dropped deadline into a time-sensitive process.

In March I reported on two cases where the Appellate Division upheld the suppression of defenses where the carrier failed to timely file the Pre-hearing Conference Statement. LINK

In a case decided September 29, 2011, the Appellate Division reviewed a situation where the employer denied the case (filed a C-7) but didn't file the PH-16.2 within the time limits. To fix the mistake, counsel immediately filed an "amended notice of controversy" and argued that the originally-scheduled Pre-hearing Conference was therefore "premature" and should have been rescheduled, thereby making the PH-16.2 timely.

The Workers' Compensation Law Judge refused to excuse the late fling, and stripped the employer of its defenses, ultimately establishing the claim.

In a decision dated September 29, 2011, the Appellate Division affirmed this outcome.

Best practice: be wary of the requirement that the Pre-Hearing Conference Statement be filed ten days prior to the expedited hearing - implement a plan to make sure this is done timely or risk a suppression of defenses!

Case: Butler v. General Motors, NY Slip Op 06634 (App. Div. 3d Dep't, Decided September 29, 2011).

It has been nearly a year since the Medical Treatment Guidelines become the mandatory standard of care for injured workers, regardless of the date of injury or accident for injuries to the back, neck, shoulder, or knee. N.Y.C.R.R. 324.2. Now the Board has proposed Carpal Tunnel Syndrome Medical Treatment Guidelines. This will impact handling of these claims as currently treatments (such as release surgeries) which cost more than $1,000 are subject to carrier approval for body parts not covered by the MTG. Under the proposed Guideleines, nearly all carpal tunnel release surgeries will be considered pre-approved.

What do the current Guidelines cover?

Under the current Medical Treatment Guideliness, medical care provided to injured workers must satisfy a two-prong test:

The Medical Treatment Guidelines include statements of "General Principles" in each MTG's first section. These are the key principles necessary to apply and interpret the MTGs. There are 23 general principles divided into 6 categories. Of these, the two most important are:

When are Authorizations Required?

All medical consistent with the MTG is pre-authorized and the health care provider is not required to obtain prior authorization. See N.Y.R.R.C. 324.2(d)(1). For carpal tunnel syndrome, all release surgeries will be considered pre-approved under the proposed Guidelines except where there is no electrodiagnostic evidence of carpal tunnel injury (must be EMG and NCV). Further, some therapies, including: low level laser, iontophresis, magnets, or "laser acupuncture" are specifically deprecated.

The Board is accepting comments on the proposed CTS Guidelines and will likely adopt regulations to incorporate the Carpal Tunnel Syndrome Medical Treatment Guidelines into the law after December 1, 2011. Of course, I will keep you up to date with the progress of this reposed change.

Now, where's that pain management guideline we need so badly?!?

Download the latest schedules of loss here.

Background

Under the New York Workers’ Compensation Law, there are four types of benefits available to an injured worker:

1. Medical treatment. Emergency and follow-up treatment for their injuries.
2. Wage compensation for earnings lost while they recover from the immediate effects of their injury.
   • This wage compensation is called "temporary total" with the claimant is 100% totally temporarily disabled (cannot work at all) OR
   • "Partial temporary" when the claimant can do some work – but isn't earning their prior level of wages (usually because they can only work part time or have to work at a job that pays less than the work they were doing at the time of the accident). This is calculated as 2/3rds of the difference between old wages and post-accident wages.
3. Death benefits payable to the dependents (usually wife and kids) of a worker killed during the course of employment. This is 2/3rds of their average weekly wage at the time of injury, subject to maximums and minimums, to the wife for life.
4. "Permanency" benefits – these are payments of money to injured worker to compensate them for the "permanent effects" of an accident.

With rare exception, our settlements will focus on resolutions regarding the amount of "permanent disability" that a claimant is due.
 
The amount of permanent disability – the money award at a claimant gets when he has reached maximum medical improvement – is set by statute.
 
The statute envisions two types of permanent disability compensation:

1. "Scheduled loss of use" which relates to injuries to body parts which are listed on this "scheduled loss of use chart" which is attached to this document. This is a fixed amount of compensation for injuries to fingers, toes, hands, feet, arms, ankles, knees, etc.  In other words, the Workers Compensation Law states that if you lose your thumb in accident, you get a fixed benefit – a number of weeks of compensation times your weekly rate – which is determined by the injury.
2. The second type of permanent disability award is called a "classified award” or sometimes it is called a "classification." This term "classification" doesn't really mean anything – it just means you sustained injury to a body part which is not specifically described on the "scheduled loss of use chart." For example, injuries to the head, neck, and low back are considered "classifiable" injuries – and they are compensated in terms of a fixed number of weeks – up to 600 weeks.

Example.

If I made $200 per week and I lose my thumb, according to the scheduled loss of use chart, I would be entitled to 100% loss of the thumb – 75 weeks of compensation. This would be paid at a rate equivalent to 2/3rds (66.6%) of my average weekly wage – or approximately $133.34 per week (two thirds of $200 per week). So in this example, the loss of my thumb would give rise to an award of $10,000 for permanent disability. The other benefit I would get would be medical treatment for life in regards to the lost thumb.
 
Imagine if I sustained an injury to my low back.
 
Assume that the treating and examining physicians all agreed that I was left with a 25% permanent residual impairment. My award would be 2/3rds of my average weekly wage times 25% of 600 weeks (the maximum number of weeks for classifiable injury). So, the award would be $133.34 times 150 weeks of compensation or $20,000.
 
Any amounts already paid to me – the claimant – during the claim for my lost waged – for example, if I lost a few weeks from work – would be subtracted from the overall award.

 Often, there is not a simple agreement between the parties as to the extent and nature of the claimant's residual permanent disability. In such a case, we will often have a trial. During the pendency of the trial both parties have the opportunity to present their own witnesses – usually medical witnesses who claim that the injured worker is either completely and totally disabled (the claimant’s doctors) or is absolutely fine and ready for the Olympics (our IME doctors).
 
If the parties can reach a settlement before the judge reaches his conclusion regarding permanent disability – we can stipulate to an overall resolution. That settlement can be handled a number of different ways. What follows is a description of the three ways in which settlements are typically resolved.
 

Settlements

The main difference between these ways of settlement is whether or not the settlement is "full and final" – that means the claimant can never come back into court and alleged that his condition has worsened and now needs more compensation – and whether or not the employer/carrier remains liable to provide future medical benefits to the claimant should the condition worsen or should the claimant require additional medical treatment.
 
As medical treatment costs are now driving workers compensation claims (the employers and carriers are seeking to minimize medical treatment costs) a settlement in which the medical treatment aspects are closed (a "full and final settlement with closed medical") is the preferred way for a carrier/player to resolve workers compensation case.
 

1. Lump-sum dismissals – everything gets closed.

    This is often referred to as a "section 32" settlement after the section of the statute which allows for this type of settlement. This is the preferred way for employer/carrier to close a case. In this type of settlement, the claimant is paid one lump sum – usually agreed upon between the parties and usually a whole number – for example, $50,000 – to resolve all issues. The claimant loses the right to reopen this claim should his condition worsened. The claimant loses the right to seek additional medical treatment which must be paid for by the employer/carrier. The claimant is responsible for paying his own attorney's fee – usually 15% of any settlement – directly to his attorney.
   
   A section 32 settlement must be approved by a judge of compensation. There are number of forms which must be completed and submitted to the court for settlement of this type to take place. Addiitonally, consideration of Medicare's potential future interest must be made - in many cases, a set-aside allocation should be considered.
    
   These forms are:
    
   1. C–32 settlement form.
   2. C–32.1 settlement form
   3. A–9 form.
   4. An addendum document, explaining that the claimant's right further compensation is waived, that medicals are closed, and laying out any other particular aspects of the proposed settlement.
   5. A further correspondence must be sent to the office of Child support enforcement seeking a statement that the claimant does not know any child support payments in the state of New York. This should be simply sent to the Office of Child Support Enforcement – and does not have to be submitted to the workers compensation board except as a copy.

2. Lump-sum dismissals – medical stays open.

   This is still a "section 32" settlement with the only aspect of the case that is closed is the amount and nature of the claimant's permanent residual disability. In other words, we our paying the claimant a lump sum for the amount of permanent impairment to the body part injuries the accident.  The claimant is also giving up the right to reopen the case – he can never come into court and say's condition has worsened and he needs more compensation for increased impairment. However, the carrier remains "responsible" for additional medical treatment should the claimant's condition worsen and require additional care. In this type of settlement, Medicare's potential future insterest does not have to be considered - medical stays open and so the claimant can come back to the medical carrier for any necessary treatment.
    
   The specific forms which must be filed in this case are the same as the lump-sum dismissal of all claims (above at one).
    
   1. C–32 settlement form.
   2. C–32.1 settlement form
   3. An addendum document, explaining that the claimant's right further compensation is waived, that medicals are closed, and laying out any other particular aspects of the proposed settlement.
   4. A further correspondence must be sent to the office of Child support enforcement seeking a statement that the claimant does not know any child support payments in the state of New York. This should be simply sent to the office of Child support enforcement – and does not have to be submitted to the workers compensation board except as a copy.
    

3. Stipulated settlement

   – classification or scheduled loss of use with medical staying open. In this case, we are stipulating to the fact that the claimant has a residual permanent impairment to a "scheduled" body part or to a body part which is "classified." In this case, we complete form 300.5 S completely as possible – describing the injuries, the percentage of permanent pyramid, and all necessary particular facts to establish the award – which will include the average weekly wage of the claimant. In this type of stipulated settlement, we will be granted credit for payments of temporary total or temporary partial wage continuation benefits which were issued during the pendency of the case – while the claimant recovered.
    
   • Forms:  C-300.5

Have any questions about settling claims in New York? Contact Greg Lois.

Forensic Investigator Gary Veeder specialized in trace fiber evidence for the New York State Police Forensic Investigation Center. His findings were relied upon by prosecutors and juries in sending people to jail. Unfortunately, a state investigation found that in nearly 1/3rd of all the cases Veeder worked on there were "serious problems" with the evidence provided by Veeder.

A very public scandal erupted following an investigation ("Troopergate" and "Dirty Tricks Scandal") when it was learned that Veeder

"routinely failed to conduct a required test when examining fiber evidence, then falsely indicated in case records that he had performed the test,"

according to the audit of his practices. It appears that Veeder had no knowledge of the tests he was supposed to be conducting, and could not even properly operate a microscope.

A lot of people may have gone to jail because of Veeder's fake evidence.

Veeder first retired and then 15 days later committed suicide by hanging himself in his garage.

His widow claimed that his death was caused by work-related stress and filed for workers' compensation benefits.

Dependency Benefits in New York

Under the New York Workers' Compensation Law, if a worker dies from a compensable injury, the surviving spouse would be entitled to weekly cash benefits. The amount is equal to two-thirds of the deceased worker's average weekly wage for the year before the accident. The weekly compensation may not exceed the weekly maximum, despite the number of dependents.

Suicide

Intentional self-injury is not compensable under the New York Workers' Compensation law. Self-injury or stress related to a negative personnel action (discipline, termination, etc.) is not compensable. However, a line of cases has developed since 1991 finding some suicides compensable. For example, a suicide may be found compensable where:

• There was a work-related injury which caused insanity, derangement, or mental deterioration;
• A depressive condition causally related to the employment (presume causal connection between work and mental illness);
• Work-related stress contributed to a depressive illness (which may have been pre-existent in nature and in which suicidal tendencies were a feature).

See Miller v. Int’l Bro. Of Elec. Workers Local 631, 654 N.Y.S.2d 460 (3d Dep’t 1997).

The widow's claim was denied, on the basis that the stress was the result of personnel actions, which are excluded from workers' compensation eligibility.

The case was appealed and the decision to deny benefits was reversed and the case sent back to the Workers' Compensation Board for reconsideration.

Decision on appeal

The reversal was based upon the fact that at the time of Veeder's suicide, no personnel actions had been implemented. The Appellate court stated that "the unrefuted psychiatric evidence contained in the record, as well as the suicide letters, make clear that decedent's suicide was predominantly the product of the depression and stress he experienced from the employer's inquiry into the inconsistencies in his fiber analysis tests." The state was investigating the situation; they had uncovered problems in Veeder's work, but they were on a narrowly defined "fact finding" mission. No action had been taken against Veeder: he was not suspended or demoted or disciplined in any manner. Thus the stress was purely the result of the investigation, not of any personnel action.

In other words, had the employer simply announced to Veeder that the investigation was the initial phase of a disciplinary process, he would probably not have been eligible for workers comp. The only facts that count: he was under enormous work-related stress (of his own making) and he killed himself as a direct result of the work-related situation.

Based on the decision in the appeal, it appears that Veeder's widow will be eligible for burial and indemnity benefits.

Case: Veeder v. New York State Police, 511128 (N.Y. App. Div decided July 14, 2011).

Twice this year the Appellate Division has affirmed the rule that a claimant who is receiving an award for permanent partial disability has an ongoing obligation to show “attachment to the workforce” - that he is actively seeking a job within his restrictions - in order to continue to be eligible for weekly benefits. In both of these cases the Appellate court has instructed that where a claimant fails to seek employment, fails to participate in vocational rehabilitation, and fails to attend to a referral to educational services, the Board’s determination that the separation from the workforce was “voluntary” and therefore on further benefits must be paid by the carrier/employer.
 
 On June 9th, the Appellate Panel ruled that a subsequent medical condition - which left the previously “partially” disabled claimant unable to work in his former industry but still able to do something - extinguished the claimant’s right to benefits.  In that admittedly compensable case, the claimant was collecting a partial permanent disability award for orthopedic injuries to his neck, shoulder, and back (the award was entered pursuant to stipulation). However, the claimant failed to demonstrate search for work within his restrictions.  The claimant also failed to attend to vocational rehabilitation or offered educational services.
 
The employer argued that benefits should be discontinued as the claimant failed to demonstrate “attachment tot he workforce" in the form of a reasonable work search within his restrictions.  For his part, the claimant argued that he had developed a subsequent health condition which made work as a construction laborer impossible.  The Law Judge found that this factor mitigated the claimant’s obligation to show he was seeking work within his restrictions.
 
On June 9, 2011 the Appellate court overruled the workers’ compensation judge  - ruling that even a subsequent unrelated condition does not abrogate the claimant’s duty to seek work within his restrictions.
 
Keep this decision by your side!  

Even in a case where the employer has stipulated to the claimant;s ongoing permanent partial disability, benefits can be withdrawn if the claimant fails to seek accommodated work.  

Remember: the burden is on the claimant to show a evidence of a  job search within his restrictions.

Case:  Bobbitt v. Peter Charbonneau Constr., 2011 N.Y. Slip Op. 04790 (App. Div. Decided June 9, 2011) andMatter of Hester v Homemakers Upstate Group, 2011 NY Slip Op 02091 [82 AD3d 1461] (App. Div. Decided March 24, 2011).

New York's maximum compensation rate - for temporary total disability and permanent total disability - just went up effective July 1st to $772.96. The new, higher rate will be in effect until June 30, 2012.

Since May the WCB has assembled a new Medical Advisory Committee to provide guidance and commentary on new pain management treatment guidelines. The Medical Advisory Committee is expected to review and consider standards for evidence-based medicine applied to pain management and rehabilitation. More on this as it develops!

Using surveillance video at trial in New York, New Jersey, and Longshore/DBA workers' compensation claims.

New York: Special surveillance video rules.

Under the New York Workers' Compensation Law, making false statements to obtain workers' compensation benefits is illegal and will result in the claim being thrown out (WCL § 114(a)) and the claimant referred for prosecution. The fraud defense will be based on two types of statements made by the claimant: (1) statements made inside a court room and (2) statements made to doctors in examining rooms.

In a recent case, a New York Appellate Court affirmed a disqualification from benefits where video surveillance of the claimant showed him going to and leaving a medical examiner's office with a leg brace and a cane AND A WALKER.  (Wait a second - - -a cane AND a walker?  How could he manage that with only two hands?!?)  While that portion of video showed a severely disabled victim, in later scenes the claimant was able to move his legs freely.  The video revealed that he was not not using a brace,  cane or walker, and showed that he actually had no impairment in his daily activities. 

The Board ruled that the claimant had violated WCL § 114(a) and was disqualified from workers' compensation benefits.  The appellate panel, on review, affirmed that disqualification.  (Case: Retz v. Surpass Chem. Co.,).

Practical note: New York has specific submission requirements for video - it must be in either ".avi" or ".wmv" and submitted to the WCB on a DVD-ROM.  In my experience, the submission will be noted as a "NS-OBJECT" in e-case ("Non-scannable object").  The video must be viewable in "Windows Media Player" or the WCB will reject the video.

Video in New Jersey: Getting the video into evidence.

Video surveillance is often relied upon by the defense in New Jersey  to either challenge credibility or to demonstrate that a claimant is not as disabled as he appears from his own testimony or his doctor’s examination.  Video does not have to be disclosed during the normal discovery process, even though adversary counsel may demand copies of videotape.  Under the current rules, video does not have to be revealed unless the respondent intends on using the video and only after the petitioner testifies.

One exception to this is where the respondent has shown the video to an examining or treating physician.  If the video has been shown to an attending or examining doctor prior to the petitioner's testimony, then it is discoverable by the petitioner prior to his testimony.

Practical Tip:  Ever since the decision of Gross v. Neptune the introduction of videotape evidence in contested workers’ compensation trials in New Jersey is limited by the disclosures on the Pre-Trial Memorandum. In Gross, the respondent did not disclose surveillance video on the Pre-Trial memorandum.  During the trial (after the claimant testified), the respondent obtained videotape surveillance of the petitioner.  The video evidence was not admissible due to the failure of the respondent to provide proper notice that the video was to be used.

Best practices:  Whether or not we have surveillance, we always put (on every "green sheet" Pre-Trial memorandum) that the "respondent reserves the right to obtain video surveillance of the claimant after the trial has started as per Gross v. Neptune.

Video in Longshore/DBA claims.

The Federal Rules of Civil Procedure require that surveillance evidence must be disclosed if it is to be used at trial. FRCP 26(b)(1).   However, video used as "impeachment evidence" - to challenge the credibility of the claimant - is not subject to discovery.  So, if you have great video on the claimant, but you only intend to use the video during cross-examination (and not send it to your evaluating doctor, for example), is it discoverable?

The Federal Rules (FRCP 26(a)(3)) clearly excludes from pretrial discovery material which will be used "solely for impeachment purposes;" the obvious rationale for excluding impeachment material from discovery is that their disclosure would substantially impair their impeachment value.  In Fee v. Calcasieu Paper Co., videos of a claimant were obtained by elaborate detective work which included inducing the disabled man to dig, to conceal cameras in fox holes and to surveil on his activities.  That video was deemed admissible by the judge. However, in a recent  case arising under the Jones Act, the Fifth Circuit has held that a surveillance videotape of an injured worker's daily activities constituted substantive evidence subject to disclosure pursuant to a discovery request.  The trial court's admission of the tape solely for impeachment purposes, when the evidence was in part substantive, constituted reversible error. Chiasson v. Zapata Gulf Marine Corp.

The decision whether to admit surveillance films and the weight to be accorded such evidence are matters within the discretion of the judge. 

Clients have reported to me that when handling claims under the New York Workers' Compensation Act if the claimant resides out of state they are not applying Medical Treatment Guidelines ("MTG") to the ongoing treatment.  This means that employers and their insurers are not getting the benefit of the MTG in these cases. (Note: If you are unfamiliar with the Medical Treatment Guidelines that went into effect on December 1, 2010, I recommend you read my earlier posts on these topics:

• The Medical Treatment Guidelines - this is a general overview article;
• Optional Prior Approval; and
• The Variance process.
• Observations on the Variance process.)

There is no case law examining this issue in light of the controlling statutory authority and the information published by the WCB is simply nonsensical. Why would an out-of-state claimant be entitled to more or less medical treatment than the in-state claimant?

What the law states.

The strongest authority is the Workers' Compensation Law ("WCL") statute itself. Section 13 of the WCL states:
(b) In the case of persons, injured outside of this state, but entitled to compensation or benefits under this chapter, the provisions as to selection of authorized physicians shall be inapplicable. . . All fees and other charges for such treatment and services, whether furnished by the employer or otherwise, shall be subject to regulation by the board as provided in section twenty-four of this chapter, and shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living." None of the cases that cite to this provision indicate that an out-of-state claimant is entitled to less or more medical care than is required under WCL § 13-a.

That first part about the "selection of authorized physcians" just means that when the claimant is treating out-of-state, the treating physicians do not have to be "coded" or otherwise authorized by the WCB to treat the claimant. Nothing in the statute allows for an out-of-state claimant to get more or less treatment then a worker injured in New York.

What the WCB says.

This is where it gets confusing: I found this on the WCB website in a 'Frequently Asked Questions' response under the heading "Out of State" (link):
"Question: How do the Medical Treatment Guidelines apply if an injured worker lives or receives treatment outside of New York State?
Answer: If the injured worker either lives or is treated in New York State, the Medical Treatment Guidelines apply. If the injured worker both lives and is treated outside New York State, the Medical Treatment Guidelines do not apply."

There is also this:
"Question: How can a party compel appearance at a deposition of an out of state provider, when a variance is denied by a health care provider?
Answer: First, the variance can only be denied by a carrier. It is submitted by the health care provider. Second, If the out of state provider is treating a claimant that both lives and is treated outside New York State, the Medical Treatment Guidelines do not apply. If the Medical Treatment Guidelines do not apply, then there is no need to request a variance and there will be no need to depose such provider. However, if the out of state provider is treating a claimant who lives in New York State, the Medical Treatment Guidelines apply. In that case the methods used to depose out of state providers for all other issues should be used. A subpoena is not necessary if the provider agrees to a date and time to be deposed.
 
Hmm.  This seems to directly state that an out-of-state claimant is not bound by the MTG.  Remember, answers to "Frequently asked Questions" on the Board's website is not law or even persuasive authority.
 

The Regulations imply that the MTG applies to out-of-state claimants.

After reviewing the regulations and the MTG, I found only one Regulation that references a claimant who resides out of state in regards to treatment (in this case, IMEs). Here are some references in the Regulations that seem to imply that the Guidelines DO apply to claimants who reside out of state. For example, 12 N.Y.C.R.R. 325-1.4(a)5 states as follows:

In response to requests for authorization for treatment related to an established body part or illness, the self-insured employer or insurance carrier may have the [patient] claimant examined within four business days if the [patient] claimant is hospitalized or [30] thirty days if patient is not hospitalized, by an appropriate [medical board-certified] specialist who is [also] authorized [in such specialty,] by the [chair,] Chair to [treat] conduct independent medical examinations of workers' compensation claimants. If such specialist is not available or where the claimant resides outside of state, consultation may be rendered by [an authorized physician who is acceptable to both the self-insured employer or insurance carrier and the physician requesting authorization, or in the event the parties cannot agree, a physician may be selected by the chair] a qualified provider who may conduct the independent medical examination as provided in Workers' Compensation Law Section 137 (3) (a) and section 300.2 (b) (9) and (d) (7) of this Chapter.

This regulation clearly assumes that the Chair has the power to regulate out of state care, and that a patient who resides out of state (and presumably is getting treatment out of state) can still request authorization for treatment to established body parts.
 
The Regulations and the individual Guidelines for each body part certainly do not state that claimants who live out of State are treated any differently than in-state residents.

Of course, if out-of-state claimants with established cases were not subject to the MTG they could continue to direct and control their own medical care as they did in the pre-MTG era. Certainly, this creates a situation where the out-of-state claimant would be able to obtain more medical treatment than a similary-situated in-state claimant, which defies common sense.

Have any questions about this article? Contact Greg Lois.

What makes an MG-2 form complete?

The MG-2 variance request form is a multi-page document with plenty of small type. Certain information is essential to the Board's internal procedures and if that information is missing or incomplete, the Board cannot process the form. In order for the Board to take action on an MG-2 form, the Board requires that the following fields be completed (required items are denoted by the "checklist" symbol "☑".

Check the MG-2 - if any the following sections are incomplete or missing - issue a denial and alert the Board as to your reasons!

Required in Section A:

☑ Patient's name, and
☑ Insurance Carrier's Name & Address.
Please note that the Insurance Carrier's or TPA's name and address must match the information the Board has on file.

Required in Section B:

☑ Individual Provider's WCB Authorization Number for all providers authorized by the New York State Workers' Compensation Board

Required in Section C:

☑ Date Variance Request Submitted and Method of Transmission,
☑ Guideline Reference for the body part followed by the 2 to 4 character corresponding reference in the Medical Treatment Guidelines or followed by the four letters N-O-N-E if there is no listed procedure,
☑ Approval Requested For requires a written description of the treatment requested,
☑ Statement of Medical Necessity requires a description directly on the form. If there is a supporting medical report in the Board's case file, the requesting physician should enter the date of service or if there is no supporting medical report in the case file, attach a medical report and enter "See attached medical report" on the form;
☑ A check box selected for how the carrier was contacted; and
☑ the Provider's signature or stamp. Please note that initials next to the signature or stamp are not acceptable.

Also remember that physical therapists are not "medical providers" under the the MTG and cannot issue an MG-2 to request authorization for addiitonal physical therapy visits beyond the Guidelines - only a doctor can issue the MG-2 to request addiitonal PT. Issue a summary denial to any variance request issued by a physical therapist.

The new Medical Treatment Guidelines aren’t that new anymore. In the four months since the Guidelines came into effect clear patterns have emerged for those of us regularly handling variances and medical treatment issues before the Board. This article provides our observations and practical tips for handling disputes post-MTG.

(If you are unfamiliar with the Medical Treatment Guidelines that went into effect on December 1, 2010, I recommend you read my earlier posts on these topics:

• The Medical Treatment Guidelines - this is a general overview article;
• Optional Prior Approval; and
• The Variance process.)

Observation #1: Magic Words

There is a literalist quality to the review of medical disputes before the Board. The Workers' Compensation Board has always been doctrinaire - and never more so than in the interpretation and application of the new Guidelines. How can we use this to our advantage in controlling runaway medical?

Magic words: Challenging treatment during the Optional Prior Approval process

If you have not "opted out" of the prior approval process, a medical provider can seek "prior approval" to provide treatment where there is a potential that the care is not pre-authorized under the MTG (using form MG-1). If the approval is denied by the carrier, the matter then goes to the Medical Arbitrator who will issue a decision within 8 days. The decision of the Medical Arbitrator is not appealable under WCL Section 23.

The arbitrator who reviews the denial will be in the Medical Director's Office - the review process includes MDO nurses. In our experience, they are looking for documentation of clinical symptoms, correlation of those symptoms to the medical treatment sought, and a statement as to how the proposed medical treatment follows under the MTG.

In our experience, this process can be aided by careful documentation by the carrier and carrier's medical reviewer.

First, a denial of treatment must include a specific reference to which Medical Treatment Guidelines applies. In the case of the carrier seeking to deny care, a statement must be made that the treatment sought is not authorized by the MTG. The denial should include the name of a licensed medical professional (and that could be a LPN, PA-C, MD or RN) who reviewed the medical request. The report supporting the denial should be as detailed and complete as possible - make is easy for the reviewer at the Medical Director's office. This means that specific reference to the MTG "chapter and verse" that applies should be provided, along with references to the treating records as to how the claimant's prior symptomatology and improvement departs from the symptoms and functional improvement documentation required under the MTG.

Second, carefully review the Board's file (e-case) to see what medical records have been submitted to the Board. Often, a supporting MRI report or EMG result is not filed. A treating physician may refer to the report or record and rely on same in formulating an opinion that the medical treatment is necessary. However, if the report is not submitted to the Board - part of the e-case file - the attending doctor's opinion is weakened. The Board should be made aware that supporting diagnostic testing has not been submitted.

Because the reviewers are taking a "literalist" approach to reviewing medical disputes, missing records will be construed against the claimant. Use this to your advantage! If the record is missing be sure to have your reviewing medical professional note that for the Board.

Finally, be mindful of the deadlines in a prior approval request - failure to respond will result in an unappealable determination.

More magic words: Defending variance requests

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 the chosen medical professional;
• (Optional) Submit citations to peer-reviewed medical journals in support of the denial (if such articles formed the basis of the denial).

First, be mindful of the time constraints. If the carrier submits a notice of an IME or Medical Records Review within 5 business days of the variance request, the carrier has 30 calendar days to get the IME exam or Medical Records Review and submit Form IME-4. If no notice of an IME or Record Review is submitted, the carrier has 15 calendar days from the date of the request to reply to the variance request. These are extremely short time periods to respond - therefore, prepare, prepare, and prepare. A successful defense requires an action plan - a "go to" medical professional to issue a response. This could be a a physician, registered physician assistant, registered professional nurse, or nurse practitioner licensed in ANY state.

The denial: the carrier must explain why the treatment request was denied and attach the written report of the medical professional that reviewed the variance request. Such report shall include a list describing the medical records reviewed by the medical professional when considering the variance request. The carrier has the option to submit citations or copies of relevant literature published in recognized, peer-reviewed medical journals in support of a denial of a variance request.

Here is where the "magic words" are important. Most variance denials will be for "burden of proof" reasons. Specifically, that the treatment is not medically necessary and appropriate in the individual claimant's situation. This requires the report of a medical reviewer, who must review the medical records (and list in her report the records reviewed). If the claimant failed to respond to prior treatment (for example, physical therapy) and the claimant simply seeks more of the same, the reviewer should note that the request for treatment violates the MTG. Specifically, the reviewer should state that "medical necessity is not established where there is no evidence of functional improvement related to the previously delivered therapy modalities." (This is a reference to the "general principle" common to all MTGs). We have seen the Board adopt this exact language in decisions denying variance requests.

Controverted Claims: If the compensation case is controverted, the carrier must still respond to the variance request timely and in the same manner as requests in non-controverted claims. If the carrier approves a variance request when a claim is controverted or the compensability of the body part is controverted, the approval only relates to medical necessity and shall not be construed as an admission that the condition for which variance is requested is compensable. The carrier shall not be responsible for the payment of medical care which is the subject of the variance request until the question of compensability is resolved.

Failure to Timely Respond to Form MG-2: The variance shall be deemed approved by an Order of the Chair issued by the Workers' Compensation Board if the carrier fails to respond within the time frames specified above. The Order of the Chair is the final decision of the Board.

Magic "Missing" words.

One final caution: "missing" magic words can sink a defense. In a recent case I handled, the claimant's chose physician recommended cervical fusion surgery in a case where the claimant had minimal objective findings and no improvement in his subjective complaints from protracted prior treatment. The IME physcian - an orthopedic surgeon - opined that the claimant's clinical presentation did not warrant surgery and found the claimant able to return to the pre-injury job. The reviewer at the office of the Medical Director was not so concerned about whether the treatment was necessary so much as she was concerned that the IME doctor was not a neurologist. Furthermore, the IME doctor did not record any positive findings regarding a neurological exam.

In other words, the reviewer presumed that because the the IME physician did not enumerate neurological findings, that meant there could be findings. Obviously, this is flawed.

We recommend that IME physicians clearly state where no symptoms are noted. For example, a "checklist" type exam would likely have appeased the institutional bias.

Observation #2: No one is an expert. Even the people who are supposed to be experts.

In a typical scenario, a claimant is seeking additional medical care and the carrier is defending an IME opinion that states the medical treatment sought is unnecessary. A common argument raised by claimant's counsel is that "the treatment sought is covered by the MTG."

Once this argument is raised, carrier's counsel must be ready to respond. Why? Because many judges will simply order "Medical Treatment as per the Medical Treatment Guidelines is authorized." This argument effectively short-circuits the carrier posiiton - that there is not further causally related disability. This often arises in a context where the carrier is seeking to take medical testimony and put the claimant to his proofs.

The defense must be able to explain why the medical treatment is not pre-authorized under the MTG. Alternatively, defense counsel must be able to explain why even if the treatment is pre-authorized under the MTG, the claimant's clinical presentation does not warrant the treatment.

Your best defense will be reliance on your IME opinion and a careful argument as to why the claimant's prior diagnosis and treatment does not meet the requirements for additional care under the MTG.

All too often, both parties are not prepared to explain to the presiding judge as to why the treatment is either covered by the MTG or disallowed. Too often, specific reference to the medical record is not prepared. Many times the parties merely shrug at each other, and the Judge issues an Order stating "All treatment as per the MTG is authorized," effectively sidestepping the issue.

Disputing medical care in a post-MTG world requires more than a shrug of the shoulders and deferral to a judge's inclination. When the treating physician wants to perform an invasive procedure like a surgery, and the IME opinion has stated that the claimant does not have the necessary objective findings to warrant same, a challenge to the proposed treatment, even though it is pre-authorized under the Medical Treatment Guidelines, is essentially a denial based on ripeness (where the he 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 - see N.Y.C.R.R. Sect. 324.

Defense could argue that given the conflict, the treating physician should file an MG-2, which must include information about 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. Fight for this!

Where there is a good faith dispute about whether or not the treatment is authorized under the MTG, the carrier must be prepared fully to raise all defenses. Too often available arguments are not raised. If you have an IME that has conflicting clinical findings (neurological test, dermatonal distribution, lack of objective observations, etc) and treatment is an issue knowledge of the specific medical treatment guidelines that apply in your case is a must!

Observation #3: Everyone gets one "Do over"

No matter how old the claim the variance judges have been instructed to treat December 1, 2010 as "day zero" for all claims. Even where the claimant has had three years of physical therapy and pain medications with absolutely no functional improvement - December 1, 2010 begins a "do over." Essentially, all claimants get a "mulligan" and treatment starts over as of that day.

The exception to this will be surgery - "repeat" surgery always requires pre-approval. So, expect that at a variance hearing where the claimant is seeking additional physical therapy, the treatment will be authorized as per the MTG (usually 4-6 weeks for "active" therapy modalities) After this required period, claimant's physician must file reports showing improvement. Where there has been no objective improvement, alternate treatment paths within the MTG should be followed. The game of merely continuing to pursue physical therapy or chiropractic for years after a soft-tissue injury will be tolerated by the variance judges for the initial period allowed by the MTG. After that, the claimant should be moving on to either more invasive (often surgical) treatment paths or be deemed at MMI.

C-8.1s should still be used for treatment falling outside the MTG. This means that when the claimant continues to pursue these modalities of care after the "maximum" period allowed by the MTG (and post December 1, 2010), file your C-8.1s. The attending physician's next step should be to file an MG-2, which should tee up the case for a variance proceeding. Get your review report ready and defend as discussed above!

Final thoughts.

The Guidelines specify an outcome oriented approach with the goal of returning injured workers to employment in a reasonable time frame. While it may seem like common sense, this approach is all new to the judges and medical office staff that are reviewing the disputes that arise under the MTG. The challenge for employers, carriers, and defense counsel is as much changing prevailing attitudes as it is adapting to new procedures.

Have any questions about this article? Contact Greg Lois. Check out the book New York Workers' Compensation Law 2011 available in print here, on Amazon, or for for Kindle or e-reader.

New York and New Jersey workers' compensation claims can turn on deadlines and handling. This month, we look at how two new cases showing how strict deadline compliance is necessary in New York to avoid draconian penalties; we also explore a very recent New Jersey decision on bad faith actions.

New Jersey: penalties for carrier's actions.

For failing to follow the order of a Judge or failure to provide benefits under the Act, the Judge of Compensation can:

• Impose costs and simple interest on any monies due.
• An additional money penalty up to 25 percent;
• Fine the parties or their attorneys up to $5,000 for unreasonable delay or continued noncompliance;
• Close proofs;
• Suppress defenses;
• Exclude evidence or witnesses;
• Allow a reasonable counsel fee to a prevailing party, where supported by an affidavit of services.

These penalties are bad enough, but the law also allows for a petitioner to seek civil damages for 'bad faith' actions of the employer, the compensation carrier, or its representative.

The general rule in New Jersey allows no direct action available to an injured employee against the employer, or against the employer's insurer when the insurer does what is required under the Workers' Compensation Act and the carrier's insurance policy. Under normal circumstances, injured employees must pursue their exclusive remedies in the Division of Workers' Compensation, even when an employer, acting through its insurer, does not furnish necessary medical treatment when requested to do so by an employee.

This 'general rule' is known as the exclusivity provision and it is enshrined in the New Jersey Workers' Compensation Act at N.J.S.A. 34:15-8.

We recently wrote about the Davis v. OneBeacon case, where a 'bad faith' action was permitted when an employer selected an authorized doctor and then refused to offer the treatment recommended by that doctor. In the wake of this decision it was clear that ‘bad faith’ civil claims are not limited to a situation where a party ignores a court order - a claimant was allowed to make a ‘bad faith’ civil claim when an insurer refused to authorize treatment recommended by their own selected doctor.

In a new decision (published February 1, 2011) the New Jersey Appellate Court reviewed an admitted case where the insurer paid $567,000 in medical and indemnity benefits to the claimant. Scattered medical bills remained outstanding, and the petitioner's attorney filed a motion to enforce the prior orders in the case and requiring the insurer to pay the outstanding bills. The Judge of Compensation ordered the carrier to pay the bills (enforcing his own prior order) and awarded the petititoner's attorney a $2,000 counsel fee. Petitioner's attorney demanded that the judge of compensation sanction and fine the workers' compensation insurer. The Judge of Compensation declined to do so.

Petitioner then brought a civil claim in Superior Court, alleging that he had suffered "pain and suffering" due to the workers' compensation carrier's wanton refusal to abide by the orders of the compensation judge and sought compensatory and punitive damages, plus costs, interest, and attorney's fees.

The Superior Court dismissed the complaint. The Superior Court Judge found that plaintiff was not precluded from returning to the compensation court to seek sanctions and penalties against the insurer, and, if a new Superior Court action is thereafter necessary for enforcement, such action would not be precluded. The Appellate Court agreed with this result, and affirmed the dismissal of the bad faith claim.

The petitioner now can return to the workers' compensation court and seek the maximum penalties against the insurer available under the New Jersey Administrative Code (N.J.A.C. 12:235-3.16). In addition to the penalties described above and upon a finding by the judge of contempt, the petitioner or the judge may file a motion with the Superior Court for contempt action.

New York: Defenses suppressed for late filing; Appellate Panels affirm.

There are many reasons to deny a workers' compensation case in New York (see my chapter on Defenses). Two recent cases demonstrate the danger of failing to file ALL the appropriate forms when you are denying a New York Workers' Compensation claim by filing a Notice of Controversy ("C-7").

When a C-7 is filed, controverting a case for lack of notice, lack of employment, wrong carrier, or other jurisdictional or substantive reasons, the case will be set down for an expedited hearing within 30 days. The Act also requires that a "Pre-Hearing Conference Statement" (PH-16.2) must be filed 10 days before the Expeditied hearing. See 12 NYCRR 300.38(f)(4).

In many cases, the carrier files a C-7 after initial investigation reveals that the claimant did not work for the company, or where either notice or the accident itself is in dispute. Our recommendation: file a Pre Hearing Conference statement at the same time - to avoid the potential for failing to file the Statement (Form PH-16.2) within the 10 days. There is just too much that can go wrong - late notice of the hearing date, no notice at all, etc! If you have enough information to justify a denial, go ahead and file the PH-16.2 at the same time.

Better, have your outside counsel handle the process! It seems that common practice is to have the carrier file a C-7, then refer the claim to outside counsel. This introduces delay and a possible dropped deadline into a time-sensitive process.

Two recent cases (both decided in March 3, 2011) show what can happen when the Pre-hearing Statement is not timely filed the carrier/employer loses the right to assert defenses!

In Smith v Albany County Sheriff’s Dep't, the Appellate Division ruled that because the the carrier submitted an untimely prehearing conference statement the employer waived all defenses to the claim and, upon review of claimant’s medical records, established an occupational injury. In a similar case (Quagliata v Starbucks Coffee) also decided the same day, the Appellate Panel ruled that stripping the carrier of its defenses for failing to file the Pre Hearing Conference Statement on time was "not unreasonable, arbitrary, capricious or contrary to the statute under which it [is] promulgated."

Best practices: be wary of the requirement that the Pre-Hearing Conference Statement be filed ten days prior to the expedited hearing - implement a plan to make sure this is done timely or risk a suppression of defenses!

Have any questions about this article? Contact Greg Lois.

Valentine's day - when love and bullets are in the air.  In honor of this upcoming celebration of love, let's explore the risk implications when love goes horribly, horribly wrong . . . using actual New York and New Jersey workers' compensation cases!

In New Jersey, Mary Ann Marky made the mistake of breaking up with boyfriend Lou Rosa just before Valentine's Day.  Though they had only been dating a year, Lou was madly possessive of Mary Ann.  Lou just wouldn't take a hint, and continued to attempt to woo Mary Ann - by calling her and showing up unannounced at her home. 

Lou also accused Mary Ann of taking up with another man - John Brinker, one of Mary Ann's furniture store co-workers.  This "aggressive wooing" quickly turned into serious stalking, and after one 'surprise visit' Mary Ann resorted to calling the police, who arrested Lou for criminal trespass and carrying a concealed weapon.

Five days after his stalking arrest, Lou stopped a police officer to ask directions.  When the officer responded, Lou produced a knife which he held to the throat of the policeman.  Lou grabbed the officer's pistol and forced him into the trunk of his car.
Read More...

It is hard to imagine it today, walking down Broadway towards Times Square, but from the late 1800's until the 1930's the garment trade was the largest and most vibrant trade in New York City. More people worked making clothes in New York City than doing anything else, and more clothes were manufactured in New York City than in any other city in the world.

The factories that produced those clothes were vast rooms of men, women, and children hunched over sewing machines. On March 11, 1911 a fire ripped through the 'Triange Shirt Waist Company' killing at least 145 workers, trapped inside a factory with doors chained shut. It was the deadliest workplace accident in New York Cityís history. Public opinion (aided by yellow journalism) set the stage for politicians to enact a system iof compulsory insurance providing benefits to injured workers and their dependents - thus creating the New York Workers' Compensation Law - one of the first in the nation.

The story behind the tragedy that led to the law, dramatized into a movie "Triangle Fire," airs on American Experience on PBS Feb. 28, 2011 at 9:00pm on most PBS stations.

Strippers are not independent contractors, and therefore are eligible for workers' compensation benefits, said a New York court in a recent case. Although this ruling doesn't make every stripper in New York an employee, it does present an interesting set of facts to explore the often hazy line between "employee" and "independent contractor" for workers' compensation purposes.

The Judge in Hart v. Ricks Cabaret (decided December 30, 2010) found that although the cub owner classified the exotic dancers as independent contractors the club was the employer. The club argued that the dancers were not employees as they paid the club to perform there (the performers paid the club "shift fees" to dance there). By classifying the strippers as independents the club avoided numerous regulations and avoided having to pay workers' comepnsation premiums for these dancers.

The exotic dancers argued that the club controlled and directed their performances. For example, the club required them to cover all tattoos while performing, banned gum chewing, specified the height of the heels worn by the performers, and selected the music.

The ruling is expected to impact nearly 1,700 exotic performers and the clubs that employ them in New York, who may be subjected to the New York Labor Laws and Workers' Compensation Act.

The case illuminates the often hazy definition of employee and independent contractor.

Who is an Employee?
A common question before the WCB is whether or not an injured claimant is an ‘employee’ or an ‘independent contractor.’ Most individuals providing services to a for-profit business will be deemed an employee of that business and therefore must be covered by the employer for workers’ compensation insurance. This applies unless those services are specifically excluded. N.Y. Work. Comp. Law §3. ‘Employee’ includes day laborers, leased employees, borrowed employees, part-time employees, unpaid volunteers (including family members) and most subcontractors. In this case, the club owner was calling all the exotic dancers independent contractors to avoid paying workers' compensation premiums and other costs associated with employees.

The Board considers the following factors in determining whether an injured claimant is an employee or was an independent contractor (and therefore not eligible for benefits):

Who has the ‘Right to Control’ the claimant?
What was the degree of direction and control the ‘alleged employer’ exercised over the claimant? A person or organization controlling the manner in which the work is to be performed indicates that the task is being performed by an employee. If the person doing the labor controls the time and manner in which the work is to be done this may indicate that the task is being done by an independent contractor.
Rule of thumb: If an individual is truly independent, the individual generally works under his/her own operating permit, contract or authority.

Was the ‘Character’ of the work performed by the claimant the Same as the Employer?
Work done consistent with the primary work performed by the hiring business indicates that the labor was done by an employee. Work done by a person that is different than the primary work of the hiring business may indicate the task is being performed by an independent contractor. (For example, someone paving a driveway for a driveway contractor is generally considered the employee of that paver. Conversely, a plumber hired on a one time basis to fix a broken pipe for a retail store owner is generally considered an independent contractor – the character of the plumber’s work is different than the work done by the retailer.) In this case, the "character of the work" performed by the dancers is essentially the same as the services offered by the employer.

What was the Method of Payment?
Employees tend to be paid wages on an hourly, daily. weekly, or monthly basis. Similarly, employment is indicated if the hiring business withholds taxes and/or provides other employee benefits (Unemployment Insurance, health insurance, pensions, FICA, etc.) Whether the labor is paid using a W2 or 1099 Form for tax purposes does not matter in determining an employer/employee relationship for workers’ compensation purposes. A business paying cash to an individual for services usually indicates that the individual is an employee. Payment made for performance of the task as a whole may indicate the task is being done by an independent contractor.

Who Furnished the Equipment/Materials for the job?
A business providing the equipment and/or materials used by people in performing the work tends to indicate an employer-employee relationship.

Who has the right to Right to Hire/Fire at the worksite?
A business retaining the authority to hire and fire the individuals performing the work indicates an employee is performing the work. An independent contractor retains a degree of control over the time when the work is to be accomplished and is not subject to be discharged by the hiring entity because of the method he chooses to use in performing the work. Naturally, an independent contractor’s services may be terminated if the services rendered do not meet contractual requirements,)

All factors may be considered and no one factor alone determines whether a person will be considered an employee under the WCL.

Independent Contractors
To be considered an independent contractor, and thus not an employee, an individual must meet and maintain all ten of the following conditions:

1. Obtain a Federal Employer Identification Number from the Federal Internal Revenue Service (IRS) or have filed business or self-employment income tax returns with the IRS based on work or service performed the previous calendar year;
2. Maintain a separate business establishment from the hiring business;
3. Perform work that is different than the primary work of the hiring business and perform work for other businesses;
4. Operate under a specific contract, and is responsible for satisfactory performance of work and is subject to profit or loss in performing the specific work under such contract, and be in a position to succeed or fail if the business’s expenses exceed income.
5. Obtain a liability insurance policy (and if appropriate, workers’ compensation and disability benefits insurance policies) under its own legal business name and federal employer identification number;
6. Have recurring business liabilities and obligations;
7. If it has business cards or advertises, the materials must publicize itself, not another entity;
8. Provide all equipment and materials necessary to fulfill the contract;
9. Control the time and manner in which the work is to be done; and
10. The individual works under his/her own operating permit, contract or authority.

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;
• 
  
• 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;
• 
  
• 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
• 
  
• 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.

The new Medical Treatment Guidelines (MTG) are the mandatory standard of care for injured workers regardless of the date of injury. All medical care to the neck, mid- and low back, shoulder and knee must be consistent with the MTG. All medical care required by the MTG is deemed 'authorized' by the respondent, with the exception of 13 treatments/procedures which require carrier authorization.

The Optional Prior Approval process allows a medical treatment provider the opportunity to confirm that medical treatment is consistent with the MTG. See N.Y.C.R.R. 324.4. While participation in this process is voluntary, as of the date of this writing all carriers have been "opted in" to this system. In order to 'opt out' a carrier or third-party administrator must issue a written notice of the desire to get out, and must give the Chair 60 days notice.

The carrier must provide a qualified employee as a point of contact for the medical providers. The required point of contact information is to be placed on the WCB's website. Medical providers must submit a written form (Form MG-1 for the first request and Form MG-1.1 for all subsequent requests) and are encouraged to call the qualified employees directly to discuss authorizations.

Medical providers must use Form MG-1. Form MG-1 must be sent using "same day transmission" (either fax or email) to the carrier. The carrier has eight (8) days to respond. The carrier can respond one of three (3) ways:

1. Grant the request;
2. 
   
3. Grant the request Without Prejudice; or
4. 
   
5. Deny the Request.

If the request is denied because the requested medical treatment departs from the MTG, further explanation is not required - the carrier should note which specific MTG section supports the denial. The denial must include the name of the medical professional (and that could be a LPN, PA-C, MD, or RN) who reviewed the request along with the MTG section that supports the denial. However, this medical professional (who reviewed the request on behalf of the carrier) does not have to sign the Form MG-1.
If the request is denied, the medical care provider has 14 days to request a review of the denial. The matter then goes to the Medical Arbitrator who will issue a decision within 8 days. The decision of the medical Arbitrator is not appealable under WCL Section 23.
Please note: if the carrier fails to respond to the 'Optional Prior Approval Request' a 'Notice of Resolution' will be issued approving the procedure and the carrier loses the ability to challenge the necessity or appropriateness of the treatment later.

This process is only to be used for knee, neck, shoulder, and mid- and low back cases. The claim does not have to be established for this process to be used.

Question about the Optional Prior Approval procedure? Contact me.

This article provides and overview of medical benefits under the 2010 Medical Treatment Guidelines promulgated by the New York Workers' Compensation Board.

In General
On December 1, 2010, the Medical Treatment Guidelines become the mandatory standard of care for injured workers, regardless of the date of injury or accident. N.Y.C.R.R. 324.2. Medical care providers are required to treat all existing and new workers' compensation injuries in accordance with the Medical Treatment Guidelines (MTG) which are incorporated by reference into the regulations. The MTG body-part specific guidelines are:

• 
  
• New York Mid and Low Back Injury Medical Treatment Guidelines, First Edition, June 30, 2010. Link here (Warning: Links to a large PDF file!)
• 
  
• New York Neck Injury Medical Treatment Guidelines, First Edition, June 30, 2010. Link here (Warning: PDF)
• 
  
• New York Knee Injury Medical Treatment Guidelines, First Edition, June 30, 2010. Link here (Warning: PDF)
• 
  
• New York Shoulder Injury Medical Treatment Guidelines, First Edition, June 30, 2010. Link here (Warning: PDF)

Note: all of these Guidelines self-referentially describe themselves as a "First Edition." In training delivered to attorneys by the WCB on November 3, 2010, Elain Sobol-Berger, JD/MD, the WCB's Associate Medical Director, stated that the WCB expects to update these Guidelines as necessary.

Medical care provided to injured workers must satisfy a two-prong test:

The Medical Treatment Guidelines include statements of "General Principles" in each MTG's first section. These are the key principles necessary to apply and interpret the MTGs. There are 23 general principles divided into 6 categories. Of these, the two most important are:

When are Authorizations Required?
All medical consistent with the MTG is pre-authorized and the health care provider is not required to obtain prior authorization. See N.Y.R.R.C. 324.2(d)(1). There are twelve (12) exceptions to this rule which are defined in the regulations and one (1) additional exception defined in the regulations. So, in total there are thirteen official exceptions - 13 specific procedures that a doctor must get pre-authorization to do.

Now, if you pay close attention, you will realize that these "thirteen exceptions" are really 20 exceptions. Check out the WCB's published list of procedures that require the health care provider to obtain pre-authorization.

• 
  
• Mid- and Low Back: lumbar fusion, vertebroplasty, kyphoplasty, and spinal cord stimulator;
• 
  
• Neck and Low Back: artificial disc replacement and spinal cord stimulator;
• 
  
• Shoulder: anterior acromioplasty;
• 
  
• Knee: Chrondroplasty, osteochondral autograft, autologous chrondrocyte implantation, meniscal allograft transplantation and knee arthroscopy (total or partial knee replacement); and
• 
  
• Duplicative surgery/treatment.

If you list all these procedures separately, you see that there are actually 20 different procedures or treatment scenarios listed here - 6 for the low back, 4 for the mid back, 2 for the neck, 6 for the knee, 1 for the shoulder, and all 'duplicative treatment.'
Add them up: 6 + 4 + 2 + 6 + 1 + 1 = 20!

Providers who want to perform one of these procedures must request pre-authorization from the carrier before performing the procedure. In addition, the MT specifically forbids any "medical treatment that is experimental and not approved by the FDA." If the MTG do not address a condition, treatment or diagnostic test for one of the covered body parts, then a variance request can be made to determine whether a carrier will be obligated to pay for the treatment or medical care.

Duplicate surgery or treatment is not 'automatically' authorized. Referred to by practitioners as the "13th Exception" this exception requires a medical provider to seek prior approval for repeat or revision care - for example, removal of hardware in a failed fusion attempt.

Questions about the new Medical Treatment Guidelines? Contact me.

Under the new medical treatment guidelines recently adopted by the NY WCB and coming into effect on December 1, 2010, carriers must identify a "qualified employee" in its office whom the treating medical provider and WCB can contact in relation to a variance request.

Put simply, a variance request is where a medical provider is asking for authorization to depart from the medical treatment guidelines in case of emergency or medical plateau without improvement.

Register here.

In 2007 New York's Workers' Compensation law was changed to eliminate the possibility of 'lifetime' partial disability benefits. Instead, awards of partial permanent disability are now subject to a 'capped' number of weeks. Benefits for injuries resulting in permanent disability that occurring after March 13, 2007 are subject to 'week capping.'
The 2007 changes in the law also created an 'Aggregate Trust Fund.' Under the new law, the carrier must pay the 'present value' of any permanent partial disability directly into the Aggregate Trust Fund, which then doles out the payments to the claimant.

There have been a number of cases where the claimant was injured before March 13, 2007, but not classified as having a permanent partial disability until after July 1, 2007. Employers in this circumstance DO NOT get the benefit of a 'capped' number of weeks - because the injury occurred before the reform legislation became law on March 13, 2007. Employers in this circumstance MUST deposit the 'present value' of the claimant's (potentially) lifetime benefit into the Aggregate Trust Fund.

Employers and insurance carriers argued that the value of the potentially-lifetime benefits was 'speculative' and they would be required to make enormous deposits with the Aggregate Trust Fund.

This matter came before the Appellate Division which ruled that
(1) cases where the injury occurred before the new law was enacted do not get the benefit of capped weeks; and
(2) deposit of permanent partial awards not subject to capping must be done. The carriers were directed to deposit funds as computed by the Workers' Compensation Board.

Case: Matter of Garcia v. Wings Digital, (N.Y. App. Div. decided October 14, 2010).

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I am pleased to report that the fully revised and updated 2011 editions of my New York Book and the New Jersey Book (co-authored with Joseph K. Cobuzio) are at the publisher. I am reviewing proof copies now. I expect the final publications to be ready for clients by the end of October. As in the past, both books will be available to clients for free and the New York book will be offered on Amazon.

Erie County (NY) executive Chris Collins was frustrated by an annual outlay of about $11 million for workers comp. So the county implemented a policy requiring workers collecting indemnity (about 300 in all) to pick up the checks in person from the supervisor. Collins hoped that the face-to-face contact would lead to quicker return to work for employees capable of performing light duty.

The WCB did not like this at all. In a decision issued last month, the WCB said the new policy "places an additional burden upon an injured worker at a time when the claimant is not medically able to return to the workplace." They called the policy ‘illegal.’

The Collins administration fired back, saying that the board lacks the authority to halt Erie County's new policy and that it will continue, at least for workers with temporary injuries.
Erie spokesman Grant Loomis blasted the comp board: "We were not surprised that a board full of Albany bureaucrats would raise objections to getting municipal workers back to work as soon as possible."

Loomis said Collins wants to revise the program to call in only the recently injured who might have substantially recovered and can perform light tasks, currently about two dozen people. Collins wants workers to receive their checks directly from their supervisors, who then would ask whether they could return to work in some capacity.

Oh, and where are the employees to pick up their checks? The Sheriff's offices. Maybe that will dissuade any potential fraudsters!

We always recommend that our clients try to accommodate injured employees with ‘light duty’ work restrictions, because we feel that having the employee come to the workplace every day, even if just to sharpen pencils, encourages them to come back to work. In this case, isn’t County Exec Collins trying to do just the same thing?

The fight is in the courts, and we will keep you updated. (More info: http://www.buffalonews.com/city/article85848.ece)

In 2006 David Poulton worked for Martec Industries in Rochester, New York, as a laborer. Poulton had a history of low back claims, and had filed workers comp claims in 1998 and 2000. When he visited his treating physician in June 2006, he had the same old complaint: his back hurt, as it had virtually every day since his first injury in 1998. He told his doctor that he re-injured his back at work the prior day while lifting materials.

At the 1998 appointment Poulton told his doctor he wanted to quit working.

The doctor disabled him from work citing "old injuries and his continued decline." The doctor characterized the situation as involving "episodic increases in pain" that had troubled Poulton for several years. The doctor, in fact, had been encouraging Poulton to stop working prior to this particular visit. Poulton testified that he "had this type of pain even before [he] started working at Martec" and, in fact, had felt the same type of intense pain in the "same area of the body, same area of the back" as recently as one month before the June 7, 2006 incident. Furthermore, claimant's supervisor testified that claimant regularly complained of back pain and that, before June 2006, claimant stated that he might stop working and seek permanent disability benefits as a result of a back injury sustained at his former job.

An independent medical exam determined that Poulton suffered from degenerative disc disease and that his disability was caused primarily by preexisting problems.

So is this a new injury, as reported by Poulton, or simply the recurrence of an old one?

Ruling
The Workers' Compensation Board ruled in Poulton's favor, determining that the lifting incident at Martec aggravated the pre-existing condition. However, this ruling was reversed by the appellate division of the NY supreme court, which found no evidence of a new injury and remanded the case for further consideration.
The Appellate Court said "Considering the foregoing and viewing the record as a whole, we conclude that the Board's finding that claimant sustained a new injury on June 7, 2006 is not supported by substantial evidence." In other words - Poulton had a pre-existing degenerative condition.

Poulton is likely to go back into workers' compensation court, and this time will bring in the insurance company from 1998.

The future for Poulton.
The interesting thing about this decision - finding that there was no "new" injury - is that Poulton may end up with an award against the prior insurer but his lost time wages and scheduled loss of use award will be based on what he earned in 1998, as opposed to 2010. This will likely result in a much lower potential recovery.

Case: Pulton v. Martec, 2010 NY Slip Op 06035, N.Y. App. Div. 3rd Dep't, decided July 7, 2010.

The impact of the Medicare Secondary Payer Act on civil and workers’ compensation litigation is growing. In the next few years we expect that CMS’s enforcement activities will increase. On May 24, 2010, the New Jersey Appellate Court decided a case (Jackson v. Hudson Court) that we believe is the first case in New Jersey focusing on the MSP and a civil claim. In Jackson, the plaintiff sought to have the trial court issue an order allocating the proceeds of her settlement to discharge a Medicare lien. The Court refused to do so - forcing the payee to consider Medicare’s interest in her settlement.

This article (caution - very long!) is a comprehensive guide to handling claims (workers' comepnsation claims and liability matters) in which medicare may have an interest. Read on for my review of this important topic, with flow-charts illustarting the decisions facing the employer/defendant in personal injury/workers' compensation claims. Read More...

1. When must Medicare’s interest be considered?
Medicare’s interest must always be considered whenever:
(A) Medicare has paid for treatment for a disability/injury alleged in the claim petition; and/or
(B) In the closure of a workers’ compensation case the petitioner is Medicare entitled and future medicals for a disability/injury maintained in the claim petition are being foreclosed.

2. When is a petitioner considered “Medicare entitled”?
A petitioner is Medicare entitled if he or she is:
65 years or older (assuming sufficient work quarters); or
On Social Security Disability (SSD) for 24 months or longer; or
Suffering from End Stage Renal Disease (ESRD).

3. Is repaying Medicare for conditional payments (or obtaining a waiver) always required when the petitioner has received Medicare benefits?
Yes. CMS recommends that the process outlined under Question 4 of this memo be initiated as soon as possible for petitioners who have received Medicare benefits. To ensure that a record of any Medicare benefits be established, this process must be initiated in all cases when the petitioner is a Medicare beneficiary. One should also keep in mind that repaying CMS for past /conditional payments Medicare made on behalf of the petitioner is required even when no set-aside allocation review is required. Therefore, pleadings become very important in determining the extent to which past/conditional Medicare payment issues may play a role in resolving a claim. Plaintiffs/Petitioners who allege work injuries or disabilities that clearly cannot be sustained may be subjecting their cases to more extensive CMS/Medicare review and delay for alleged injuries or disabilities that will be found “non-compensable” later in the proceedings. In summary, adequate consideration must be given to the issue of conditional payments in all cases involving a Medicare beneficiary at the time of settlement. This includes cases resolved by Orders Approving Settlement, Section 20 Settlements, Judgments, and Second Injury Fund Awards. As long as the petitioner is a Medicare beneficiary, this issue must be addressed.

While attending a training conference and after an employer-sponsored dinner, Emily Maher and a group of co-workers took a shuttle into downtown Saratoga and visited three bars on Caroline Street. According to one witness Maher consumed five beers but did not appear drunk. Around midnight, Maher and two of her coworkers took a taxi back to the Gideon Putnam Hotel, where they had overnight accommodations, and eventually worked their way to a second-floor suite occupied by one of the coworkers.
After arriving in the suite, claimant and her two coworkers stepped out onto the roof of the hotel, which was accessible only via the bathroom window in the suite. Approximately 20 minutes later, claimant placed her hands on the railing surrounding the roof, heard a loud crack and fell to the ground below. She brought a claim for workers' compensation benefits against her employer.
Was is compensable? Read More...

In Wadsworth v. K-Mart Corp., -- N.Y.S.2d ---, 2010 WL 1375231 (App. Div. 3rd Dep't, Decided April 8, 2010), the Workers' Compensation Board found that 'emotional injuries' sustained by a claimant whose car was stolen while she was at work were compensable. Bizarrely, a week after the car was stolen, the claimant saw the car idling in the parking lot at work. When the claimant approached the vehicle, she became involved in a scuffle with the driver. At the same time, a co-worker emerged from the place of work, jumped in the car, and the stolen car took off. The Board ruled against the employer, citing the fact that a co-worker was apparently involved in the theft of the car, and found the matter compensable.

How did the Appellate Court rule? With the employee - finding her injuries compensable? or with the employer - ruling that the stolen car had nothing to do with work? Read More...

Proving depression is related to the employment is difficult for New York claimants. The claimant bears the burden of establishing, by competent medical evidence, a causal relationship between his or her employment and the psychiatric disability. In a recent case claimant Janina Guz alleged her employment at Jewelers' Machinist, Inc., caused her to develop a psychiatric disability: major depression.

Guz last worked in 2002. Her claim for major depression was initiated in 2007. In the meantime, she had received psychiatric treatment with her own psychiatrist, Dr. Alina Marek, in five occasions beginning after she filed her claim for benefits (she first sought treatment in January 2008). Dr. Marek diagnosed Guz as suffering from major depressive disorder and causally related same to her 2002 employment (Guz allegedly suffered bilateral carpal tunnel syndrome in 2002).

The employer had Guz examined by Dr. Areyek Klahr, who performed two independent medical examinations. Dr. Klahr concurred that the claimant had the condition, but found it would not interfere with her ability to work. Dr. Klahr also testified that the claimant's responses were inconsistent and that her complaints did not correlate to his objective findings. On the stand, Dr. Klahr testified that the claimant did not suffer a work-related disability.

While testifying on behalf of the claimant, Dr. Malek admitted that she had no information about the claimant;s work or her 2002 carpal tunnel injury. Dr. Malek testified that she was unaware of the claimant's prior claims history (which included multiple MVAs, etc) although she agreed that knowing the claimant's prior medical and claims history would be useful in assessing Guz's condition. Further, Dr. Malek stated that she had no information about the claimant's activities of daily living or her personal life history, and admitted that her opinion was based on the claimant’s subjective account of the cause of her depression.

The Workers' Compensation Board found against the claimant. The decision was upheld by the Appellate Division Case: Janina Guz v. Jewelers Machinist, Inc., 2010 NY Slip Op. 01870, App. Div. 3rd Dep't, Decided March 11, 2010.

Following a growing national trend, on January 10, 2010 the Appeals Court upheld the New York Workers’ Compensation Board Order requiring an employer to provide treatment for a ‘lifestyle disease’ allegedly related to the claimant’s employment.

Salvatore Laezzo slipped-and-fell, sustaining compensable knee and low back injury, while working for the New York State Thruway Authority in 2002. Medical treatment was provided by his employer. Laezzo's doctor testified that "his morbid obesity has contributed to his knee and back problems and was a broader threat to his survival." The doctor recommended gastric bypass surgery.

The employer challenged that recommendation, arguing that there was no causal link between the surgery and the claimant's injuries.

New York's Workers' Compensation Law requires an employer to pay for claimant's medical care "for such period as the nature of the injury or the process of recovery may require." (WCL Sect. 13a). This means that treatment must be provided so long as it is directed at returning the claimant to gainful employment. Not all medical treatment relates to disabilities that ‘arises out of and in the course of employment’ – and those disabilities that do not arise from the employment (such as those from the natural aging process) are not compensable.

The Workers' Compensation Board and the Appellate Division both agreed that the gastric bypass surgery should be paid for by the employer. The Appellate Court stated that "there is evidence in the record that the claimant has gained a substantial amount of weight since 2002 due to his sedentary lifestyle imposed by the compensable injuries." The Court ruled that "substantial evidence exists for the Board's determination that claimant's weight gain was caused by his compensable injuries and that gastric bypass surgery would assist in his recovery."

In reaching this decision, the Court considered the claimant’s pre-accident state. In this case, the claimant had massive weight gain after the incident at work. The Appellate Court signaled that if the claimant had been obese before the work-injury, they may not have ordered the bypass surgery to correct the condition. However, whether or not a carrier would be liable to treat obesity in a claimant who is obese before the workplace accident is no settled.

In reaching the conclusion that the claimant should be provided gastric bypass surgery, the Appellate Panel cited another case, Stephen Spyhalsky v. Cross Construction (decided april 29, 2002) in which the WCB ruled that the compensation carrier was "liable for certain medical procedures if deemed necessary to impregnate claimant's wife." In Spyhalsky, the claimant sustained nerve damage during surgery to repair a compensable back injury which prevented him from naturally impregnating his wife. In that case, the compensation carrier was ordered to provide artificial insemination services to the claimant's wife. In Spyhalsky, the Court specifically rejected the argument of the employer that the claimant may not have had the ability to naturally father before the workplace accident. In other words, in Spyhalsky, there was no "look back" to before the incident to identify the claimant's health status at that time.

Case: Salvatore Laezzo v. New York State Thruway Authority, Decided March 11, 2010 (App. Div). Link.

A New York Workers’ Compensation claimant is availed five (5) presumptions. The first presumption is that an accidents which occurs in the course of employment is presumed to arise out of the employment. This is a temporal/substantive link: if the injury occurs at work and during the work day, it is presumed the injury ‘arose out of and in the course of employment.’

If the activity the claimant was undertaking at the time of the accident was ‘purely personal’ it would not be within the scope of the employment and the presumption would be rebutted. Read More...

Independent contractors are not covered by New York Workers' Compensation Law (Section 3). A recent case (Lai Pock Lew v. Younger, 893 N.Y.S2d 367 (App. Div. 2010) decided January 21, 2010) explores the boundary between employee and 'independent contractor.' Read More...

Only an employee is entitled to New York workers’ compensation benefits.
Whether or not a claimant is an ‘employee’ or not is a fact issue for the WCB. The WCB will typically consider the following factors:
1. How was the claimant paid? (weekly, monthly, lump sum, etc)?
2. Who furnished the tools used by the claimant?
3. Who furnished the materials used by the claimant?
4. Who had the right to fire or discharge the claimant?
5. Was the relative nature of the work the same as the alleged employer’s business?
Typically, an employer wants a claimant to be considered an employee, to get the benefits of the ‘workers’ comp bar’ against a potential civil suit for injury.
In a recent case (decided October 22, 2009), the WCB found the claimant to be an employee, but the appellate court found that the claimant might have been an independent contractor, and therefore could sue the ‘employer’ in civil court for damages. Read More...

Are you taking advantage of the ability to email in documents related to claims?
The WCB allows certain forms to be attached to emails and sent to wcbclaimsfiling@web.state.ny.us.
Please note that a separate email is required for each claimant. You must put the case number (the WCB case number) in the ‘subject line’ of the email. Forms that cannot be emailed include those forms that require a verification of original signature.

The WCB has issued the following statement:

“The Board has been asked about the use of indemnification or hold harmless provisions in Section 32 agreements to protect a carrier or employer from liability of medicare payments related to an established workers’ compensation claim. The Board will not approve agreements containing such indemnification for payments made by Medicare for services provided prior to the Section 32 agreement.”

Workers’ Compensation Law Section 32 (part b1) directs the WCB to disapprove unfair agreements. We expect the WCB to decline to approve Section 32s where there have been conditional payments made by Medicare and the carrier seeks indemnification. (We also think such a disapproval would be appealable under Section 23). Of course, a Section 3 can be ‘silent’ on the conditional payment issues, but we continue to recommend that the payments be addressed at time of settlement.

The 2007 Workers’ Compensation Reform Legislation (passed March 17, 2007) raised the maximum compensation benefit indemnity rate paid to claimants for the first time since 1992. The rate had been $400 per week since July 1, 1992. The rate was raised to $500 per week for accidents occurring after July 1, 2007. On July 2008 the rate was raised again to $550 and increased to $600 per week in 2009.
As of July 1, 2010 the maximum rate will be adjusted again and will be pegged to the State Average Weekly Wage. as of July 1, 2010 the rate will be two-thirds of the NY State Average Weekly Wage (“SAWW”). The rate will then follow the SAWW.
New Jersey has long pegged the state ‘maximum’ temporary and total disability rates to the SAWW. This method has resulted in an ever-increasing maximum total disability compensation rate. The 2010 “maximum” rate in New Jersey is $794 per week. Despite the recession, and falling ‘real’ wages, the NJ SAWW keeps rising. How is that?
The answer is that the New Jersey Department of Labor simply “makes up” a SAWW based on a secret formula. The SAWW number derived has absolutely nothing to do with reality - and differs (significantly) from the SAWW computed by the Federal Bureau of Labor Statistics. Other NJ SAWW figures, using Federal unemployment claims as a basis for determining actual weekly wages, would yield an even lower figure for NJ SAWW.
So far, no word from NY as to how the NY SAWW is going to computed. If NJ is any example, we can expect that the resulting SAWW figures will not reflect the actual SAWW. The figure has not been announced yet. We will keep you up-to-date with this important information.

New for 2010 we are publishing just one newsletter that will cover New York and New Jersey workers' comp. Check out the new format here.

New York Workers' Compensation Law Section 114-a prohibits the making of false statements to obtain workers' comepnsation benefits. In practice, this means statements made inside a court room and statements made to doctors in examining rooms. In the real world, two recent cases show exactly how an employer can demonstrate employee fraud.

1. Video.

In a recent case, a New York Appellate Court affirmed a disqualification from benefits where video surveillance of the claimant showed him going to and leaving a medical examiner's office with a leg brace and a cane AND A WALKER. While that portion video (a cane and a walker!?! How could he even do that with only hands!?!) showed a severely disabled accident victim, later scenes, in which the claimant is able to move his leg freely, and without a brace, a cane or a walker, showed that he actually had no impairment in his daily activities.

The WCB ruled that the claimant had violated WCL Sect. 114-a and was disqualified from comp benefits. The appellate panel, on review, affirmed that disqualification.

Case: Retz v. Surpass Chem. Co., 834 N.Y.S.2d 389 (2007).

2. Statements - outside of court.

Video can be persuasive, but even better than video is the claimant's own words. In another recent case, an employe neglected to reveal a prior, very significant injury that resulted in neck and back injuries when filling out forms to obtain workers' comp benefits. The claimant repeated answered "No" on multiple daily activities questionnaires that asked "Did you have any injuries, illnesses, or limitations before this workers' comp injury?"

The claimant, who had suffered severe cervical and lumbar injuries just prior to his workers' comp claim, failed to disclose those injuries. The claimant argued that the questions were ambiguous and that he wasn't sure exactly what he was being asked. The WCB determined that the claimant knew he was providing false information in connection with his workers' comp claim and disqualified the claimant from further benefits.

Case: Husak v. New York City Transit Authority, 836 N.Y.S. 2d 319 (2007).

Injuries that 'arise out of and in the course of' employment are compensable - unless they are the result of some intervening cause. How about injuries that arise when an employee is undertaking something 'outside their regular duties but which still benefits the employer - like taking a class (self-education) or writing a newsletter (cough, cough)? Are injuries that occur during such activities compensable?

In Murphy v. Mt. Sinai Hospital, 829 N.Y.S. 2d 728 (App. Div. 2007) a nurse practitioner sustained multiple injuries in a traffic accident while attending a 'continuing eduction' conference. Attendance at the conference was a 'mandatory' requirement of his position. The claimant had been encouraged to go to the conference by his supervisor. The claimant testified that his supervisor had handed him the brochure advertising the conference.

The employer denied that the injuries were a direct result of the employment - and that attendance at the conference did not 'directly' benefit the employer.

The WCB found that "an act outside of an employee's regular duties which is undertaken in good faith to advance the employer's interests is generally within the course of employment." Therefore, any injuries arising from the act (in this case, a motor vehicle accident) were compensable.

In so ruling, the WCB looked at the factual circumstances surrounding the educational conference. The WCB was impressed by the following: (1) The employer paid remuneration for two "conference days"; (2) the employer 'encouraged' the employee to attend the conference; and (3) attendance was a 'mandatory' requirement for the position.

Death benefits are payable to the 'spouse and minor children' and other beneficiaries 'allowed by law' on behalf of a worked killed at his employment. What about members of a civil union? In a recent decision, the WCB denied death benefits to the surviving "member" of a civil union ceremony which had taken place in Vermont. A divided appellate Panel agreed, and ruled that the 'surviving meber' of the civil union ceremony was not entitled to benefits.

The decision of the WCB strictly construed that workers' comp law - the 'surviing spouse' langauge. According to the facts of the case, John Langdon and his partner, Neal Spicehandler participated ina 'civl union ceremony' in Vermont in 2000. According to the Vermont 'specil statute' authorizing the ceremony, the participants in the 'union ceremony' are not legal "spouses." Fo that reason, the New York court refused to grant death benefits to Spicehandler.

This is a significant departure from New Jersey law, which specifically includes members of a 'domestic partnership' recognized under New Jersey law (since 2007) - and provides the same benefits to parties in a civil union as to married spouses.

Case: Langan v. State Farm Fire & Cas., 2007 N.Y. App. Div. LEXIS 13242 (N.Y. App. Div. Dec. 27, 2007).

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).

New York workers who die on the job are entitled to a presumption that the death was ‘work-related’ where the death is unwitnessed or unexplained (Workers’ Compensation Law, Section 21). This section of the statute is meant to encourage employer vigilance regarding employees in dangerous circumstances and encourage proper supervision.
In Frederick v. Lindenhurst, decided october 8, 2009, the Appellate Court reviewed a case where an employee custodian was found dead in the school’s boiler room. An autopsy was performed. According to the autopsy report, the death was attributed to arteriosclerotic heart disease. This disease is frequently referred to as ‘hardening of the arteries’ and comes from a buildup of fatty plaque on the walls of the main arteries. This disease is not ‘peculiar’ to any employment.
Both the autopsy report and the death certificate found that the decedent’s cause of death was arteriosclerotic heart disease. The employer disputed that the death was related, and the WCB agreed. The decedent’s dependent’s appealed.
The Appellate Panel found that “substantial evidence” will rebut the presumption that unwitnessed deaths are related tot he employment. In this case, the cause of death was known: arteriosclerotic heart disease. The Appellate Division stated that absent any medical evidence that would call that conclusion into question or otherwise suggest that the decedent’s work and his death were causally linked, the opinion of the WCB must stand. The Appellate Panel repeated the case law that instructs that the employer doe snot have to rebut or meet every allegation presented by the dependents in order to overcome the assumption: in other words, if the claimant alleges that the ‘heat’ of the boiler-room, plus the claimant;s work effort, ‘combined’ to cause his cardiac condition to erupt, the employer doe snot have to meet each theory separately in order to overcome the presumption of compensability, just offer a medically-sound evidence of contrary causation.

In Curtis v. Xerox, N.Y.A.D. 3rd Dep’t, ___ N.Y.S.2d ___ (decided October 8, 2009), the claimant alleged that her 33 year employment caused her to develop occupational conditions related to her use of a computer keyboard. The claimant stopped working in July 2005, and thereafter visited the employer’s ‘plant medical department’ receiving treatment. The Workers’ Compensation Law Judge (WCLJ) directed the employer to produce the records of this treatment. The employer failed to do so.
After trial, the WCLJ issued an opinion denying the claimant’s occupational claims. On appeal, the Workers’ Compensation Board ordered the employer to produce the records within two weeks, or be subject to an ‘inference’ at trial that the occupational disease was causally related to the employment.
At trial, the employer produced a lay witness to state that no medical records existed for the claimant. Once again, after trial, the WCLJ dismissed the case, stating that there was insufficient proofs to establish the occupational claims.
Once again, the trial decision was reversed by the WCB, who found that “testimony regarding the non-existence of records” was improper. The WCB found the occupational claims “causally related” to the employment.
The employer appealed.
On appeal, the Appellate Division agreed with the employer, that testimony that “there were no records” should not have been precluded. However, the Appellate Division stated that the decision of the WCB was ‘supported by substantial credible evidence’ and they affirmed the award of compensation. The Appellate judges went on to state that WCLJ ‘abused his discretion’ by allowing the employer multiple adjournments to locate the medical records/testimony requested by the Judge.

New York Claimant Rufus Browne, a railroad track employee, was bending down to pick up a rail flag when he experienced weakness on the left side of his body. He went to the hospital the next day and was diagnosed as having had a stroke. Browne filed a workers compensation claim, alleging that his stroke ‘arose out of and in the course of’ his work.
The employer denied the causal relationship of the stroke tot he work. A hearing was held (but no testimony was produced) and the Workers’ Compensation Law Judge determined there was ‘no prima facie medical evidence of causal relationship between the stroke and the employment’ and the claim was NFA’d (designated for ‘No Further Action.’)
The claimant appealed to the Workers’ Compensation Board (WCB), who affirmed the denial. The claimant appealed the WCB’s denial to the Appellate Division.
The Appellate panel found that the employer “never refuted the allegation that the onset of the claimant’s symptoms occurred while he was at work” and that therefore the claimant was entitled to the statutory presumption that the stroke arose out of the employment (WCL Sect. 27). The Appellate panel found that the WCB erred by requiring the claimant to establish his case before the employer refuted it: in essence, the panel found that the employer “must . . . .be afforded the opportunity to rebut the presumption [of compensability].”
Practice tip- in this case, the fact pattern must have been very clear to the employer and the WCLJ: the stroke didn’t happen at work, and the medical records probably bore that out. However, even where the employee fails to establish the ‘seemingly’ bare minimum proofs to establish his claim, the employer must be prepared to present the employer’s proofs - to make a record that will withstand appeal.
Case: Browne v. New York City Transit Auth., ___ N.Y.S. 2d ___ (N.Y. App. Div. 3rd Dep’t, Decided October 29, 2009).

A common practice - communications with IME doctors by the contracting entities that send them cases - is falling under increased scrutiny after the WCB banned virtually all verbal communications between the doctors and the IME entities.
Employer IMEs have been facilitated by a group of regulated ‘Independent Medical Examination ‘brokers’ known as IME entities for years. These entities act as go-betweens - findings doctors to perform IMEs, collecting the relevant medical records for the doctor’s review, sending scheduling notices, and collecting the final reports of the physicians to provide those reports to the WCB and the employer (or carrier).
This process necessarily injects the IME entity into the mix: they coordinate communications with the doctors and are intimately involved in selecting physicians. The entities have also been called in question for practices where they are generating reports for the doctors to sign - commonly ‘transcribing’ the doctors own notes or taped exams. In some instances the IME entities have been accused of generating reports that differ from the doctor’s findings and “changing” IME reports after the doctor has signed off on the report.
This summer the WCB banned all oral communications between IME entities and the examining physicians - and allowing for all written communications between the parties to be part of the WCB record. This move, coupled with the new IME report form (discussed in out last newsletter) is expected to reduce claims that IME reports are ‘tampered with’ by the IME entities entrusted with facilitating those examinations.

In a recent New York case an award for injuries and surgery to claimant's left shoulder was taken away by the Workers' Compensation Board based on a "lack of credibility" demonstrated by the claimant. This case serves as a good review of the hearing and appeal process and the standards relied upon for finding of disability in New York. Read More...

On September 26, 2009 Medicare issued guidance as to how Set-Aside proposals "could" be submitted to Medicare. We expect that these recommendations will now be 'best practices' for dealing with Set-Aside arrangements. Read More...

The owner of a contracting company in Happauge faces up to four years in prison for cheating his workers' compensation insurer. The owner of "Colt Contracting" allegedly concealed the payroll of eight of his employees in order to perpetrate the fraud. The fraud was discovered on September 9th by the New York Insurance Bureau, the New York Insurance Fund, and the office of the Inspector General of the Workers' Compensation Fund.

A second contractor in Long Island (Stephen Schiavoni) was arrested by local police for allegedly hiding 900,000 in contracting sales to defraud his workers' comp insurer of $44,000 in premiums in a one year period (Story from Sept 18, 2009).

A New York police officer lost his claim for compensation benefits and was indicted on one count of offering a false report for filing (a felony) when it was determined that he stabbed himself to collected WC benefits. Johnson City police officer Matthew Romano claimed to have been stabbed by "two men while investigating a suspicious car" on December 30, 2006. After investigation it was learned that the stab wounds were self-inflicted. The officer has been suspended without pay (Sept 11, 2009). He now faces charges of using the mail system to perpetrate a fraud against the employer city.
Finally, a story as old as time: Monica Martinez of Freeport is accused of working a full-time at dental offices while collecting $39,000 in total disability benefits for neck and back injuries which allegedly prevented her from working. (Story Sept 16, 2009). She is charged with violating the WCL and could face four years in prison if convicted.

In September the New York WCB released data on the 45,000 workers who filed 9/11-related claims and special affidavits. The 'special affidavits' are not claims but rather "placeholders" for future claims, allowing the affiants to bring workers' comp cases at a later date, preserving their rights to benefits.
Nearly 14,000 claims are currently pending before the Board. Of these active claims, about 50% are for victims of the attacks and about 40% are rescue and clean-up workers.
Carriers have challenged about 40% of the WTC cases, which is approximately double the rate of other claims. 90% of the claims for rescue and clean-up workers are for respiratory-related conditions.

It’s the number one topic of discussion in most New Jersey workers’ comp courthouses. Has the down economy resulted in less claims or more claims? There are two schools of thought: (1) with the down economy, people are more afraid to lose their jobs by filing a workers’ comp claim, so filings will be trending downward; and (2) with the down economy, more laid-off workers will be more likely to file claims. Which one of these is right? Can we expect claims to fall or increase?
First, we have to admit that there is a data problem. The Division of Workers’ Compensation only published 19 years of historic data, so there isn’t a like period of downturn (the last time unemployment crested 9% Reagan was newly-elected president in 1981). Without hard numbers to crunch (unemployment rate versus number of claims filed) we are left with a statistical analysis of the figures we do have. Even this analysis is going to be severely flawed: New Jersey has been a harbinger of the greater workforce trend of the last thirty-years: the demise of ‘blue collar jobs’ and the rise of the ‘knowledge worker.’ New Jersey’s manufacturing, construction, farm, and trade labor categories have shrunk every year for the past two decades while government (number one growth industry in terms of jobs), professional, academic, and health professions have gained workers. The drop in cl

Until September, injured workers in New York State collected incremental payments for "loss-of-use" injuries (permanent partial disabilities). This practice followed a 2007 appeals court decision finding that a 'periodic system of payments' could not be paid as a lump-sum without a change to the law. Governor Paterson just signed legislation allowing loss-of-use injuries to be paid in one lump sum.

The New York Workers’ Compensation Board has had the power to issue stop-work orders - now New jersey is drafting a rule to grant this power to the Director of the Division of Workers’ Compensation.
The ‘reform’ legislation passed in October 2008 laid the groundwork for this new power. Specifically, Section 79 of the Act allowed the Division of Workers’ Compensation the authority to issue proposed rules describing how the power to ‘stop work’ would be restrained and authorized.
The proposed rules allow for a stop-work order to be issued if the employer ‘knowingly’ violates the Workers’ Compensation Act. The stop-work provision appears to allow the issuance of the order in the following circumstances:
Where the employer had workers’ comp insurance but allowed the insurance to lapse or cancelled coverage;
Where the employer was told by the Division of Workers’ Compensation or another State agency of the need to obtain workers’ comp coverage;
Where the employer had prior instances of failing to insure;
Where the employer misrepresents the number or type of employees in order to reduce premium costs;
where the employer misrepresents thew work classifications of employees to reduce premium costs.
The stop-work order is to be issued to the particular work-site where the infraction occurred. It is not known (not set out in the proposed rules) whether or not there actually has to be a workplace injury for the Division of Workers’ Compensation to issue a stop-work order. In other words, it is unknown whether this proposed rule is meant to increase compliance with the laws regarding mandatory workers’ compensation coverage or if this proposed rule will merely become another arrow in the quiver of union forces and disgruntled employees.
New York allowed its Workers’ Comp Board the power to issue stop-work orders in May 2007. Since that time more than 1,000 stop-work orders have been issued and approximately $7 Million in penalties have been issued to New York employers.

On August 28, 2009 the WCB released a revised set of C-4 forms. We recommend you utilize the new C-4, which now includes an item in the 'Doctors Information' section to include "billing group" and "practice name." This is expected to reduce payment problems. Form C-4 AMR may now be used in place of a 'regular' C-4 report where a physician is only giving clearance for a surgery. For medical care providers, the new forms should be helpful as all the updated forms now include the "centralized" statewide fax number for the WCB: 877-533-0337. To encourage transition to the new forms, the Board will not enforce provider's claims for payment using the old forms.

The Appellate Division issued a new opinion regarding the Workers' Compensation Board's discretionary power in reviewing cases. We are reporting on this case (D'Errico v. New York City Board of Corrections, 883 N.Y.S.2d 828 (Aug. 20, 2009) because the issue of WCB review is important to the practice of Workers' Compensation Law in New York.
In D'Errico, a city corrections officer alleged that his employment experiences caused him to suffer permanent "major depressive disorder with psychotic features, post-traumatic stress disorder, and panic disorder." The WCB ultimately denied his claims - finding that the claimant was no exposed to a 'greater' amount of work stress than any other 'normally-stuated' correctional officer. The claimant applied for a full Board review.
Appeal of from a Workers’ Compensation Judge’s decision is not to the appellate court. The first opportunity for review is to a WCB panel.
Either side may seek administrative review of the decision within 30 days of the filing of the Judge’s decision. There is no specific form for this – but it must be done in writing. A panel of three Board Members will review the case.
The employer’s attorney does not have to make a record (by taking exceptions, etc) below in order to ‘preserve’ issues for appeal. The WCB panel does a ‘fresh look’ at all of the evidence from the hearing below in reaching their decision. It is the written findings of fact and law of the panel that becomes the record for appeal to the Supreme Court.
This three-judge panel may affirm, modify or rescind the Judge’s decision, or restore the case to the calendar for further development of the record. In the event the panel is not unanimous, any interested party may make application in writing for mandatory review of the full Board. The full Board must review and either affirm, modify or rescind such decision. In addition, following a unanimous decision of the Board panel, a party may file an application for discretionary full Board review. The application for discretionary full Board review will either be denied by the Board or, when warranted, the Board panel decision may be rescinded by resolution of the full Board. When the original Board panel decision is rescinded a new panel decision will be issued.
In D'Errico, the claimant asked for a full-Board review - and his request was denied.
The Appellate Court upheld the denial of 'full Board review' - finding that the claimant could not (1) show that newly discovered evidence existed; (2) that he had a 'material change in condition'; or (3) or that the Board improperly failed to consider issues raised in the application for review in making its initial determination. The Appellate Court also noted that in 'rare instances' the WCB was found to have abused its discretion in not granted a review of a prior board decision - but those 'rare instances' were confined to cases where the Bard failed to consider new evidence or disregarded a material change in the claimant's condition. The Appellate panel found that the WCB had properly exercised its discretion and ruled that the claimant was not due a second review of his case by the WCB.

Two of the three Judges on the appeals panel agreed that the claimant was out of luck - that the Board did not have to review its decision. The third judge issued a 'dissenting' opinion - laying the foundation for the claimant to seek appeal to New York State's highest court, the Court of Appeals. The dissenting opinion argued that the WCB had failed to 'fully consider' the issues in the first hearing the WCB granted the claimant. Specifically, the third judge questioned "whom" the 'average correctional worker' was that comprised the 'normally-situated correctional officer' baseline used by the WCB to determine that the claimant was not exposed to 'extraordinary' occupational stressors.
We will continue to monitor the progress of this case (decided August 20, 2009) and report on any future developments in this area of the law.

A new case (Continental Casualty Co. v. Ameritemp, Inc., 39-2-2843 App. Div) provides a good restatement of the basic formulation (the ‘six factors’ laid out above) used by the New Jersey courts in determining whether a claimant is considered a ‘New Jersey’ employee for the purposes of collecting benefits available under the New Jersey Workers’ Compensation Act.
Read More...

Greg Lois Presented: 'HIPAA Privacy Rules' for Sompo Insurance Company/Broadspire, April 30, 2009.