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

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

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?!?

A new case (decided February 18, 2010) addresses one of the most common disputes in New Jersey Workers' compensation cases:s calculating wages for part-time or seasonal employees. Settling the 'average weekly wage' for a claimant is an important first step in calculating overall exposure, because for low-wage earner (usually part-time employees) the final award for permanency, and the amount that is paid for temporary total disability, will be based on the actual average weekly wage earned. The rate of compensation may not exceed 70% of petitioner's wages at the time of the occurrence of the accident subject to the maximum and minimum rate ($35.00 for partial permanent disability) in the year in which the accident occurred. Read More...

Medicare filed a new lawsuit on December 1, 2009 signaling a possible change in the recovery focus - from claimants (Medicare beneficiaries) to insurance carriers who contribute to settlements.
In the past, workers, their attorneys, employers, and even insurance companies have ignored or attempted to evade the fact that workers’ compensation is primary to Medicare. There were undoubtedly some instances in which a worker would go into a hospital for treatment of a work-related problem and show a Medicare card, and the hospital would bill Medicare. At times, no one on behalf of the employer or its insurer went out of the way to tell the hospital that the bill should have been sent to workers’ compensation or to reimburse Medicare after it had paid the bill.
In July 2001 CMS issued a memo to its regional offices. It suggests that under certain circumstances parties to workers' compensation claims should not settle those cases until after CMS has had an opportunity to review the settlement and approve the allocation to future medical expenses. In addition, Medicare asserted a right to repayment for medical expenses for treatments ‘related’ to the workers’ compensation claim but which had been paid by Medicare (“conditional payments”).
Since then, the settlement of workers’ compensation claims in which an employee’s future right to medical treatment is foreclosed and the claimant is Medicare-entitled or eligible have required a Medicare Set-Aside approval (or waiver). As any claims person can tell you, this has dramatically slowed down the closure rate of higher-value ‘lump-sum’ type claims (Section 20s in NJ, Section 32s in NY). At the same time, Medicare has been issuing ‘Conditional Payment Statements’ showing payments made for medical care which Medicare asserts may be related to the workers’ compensation claim - and therefore not payable by Medicare under the Secondary Payer Act. Read More...

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.

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.