The Essentials: Proposed New York 2018 Schedule Loss Guidelines

On September 1, 2017, the New York Workers’ Compensation Board issued draft guidelines and regulatory changes for 2018. The guidelines are intended to revamp the schedule process to align with modern medical practices. The drafts of both the guidelines and regulations appear to include possible errors, omissions, and ambiguities. Click here for a brief overview of the new proposed SLU process and for an idea of what to expect if the new guidelines are adopted.
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Denied Again! Bronx Civil Court Rejects Request of Out-of-State Providers to Re-Litigate Denied Medical Billing

One of the most basic and well-settled tenets of New York law is that the Workers’ Compensation Board maintains exclusive subject matter jurisdiction over all work-related claims and collection disputes. However, in 2015, a small law firm based out of Westbury, New York sought to disrupt the system by commencing several hundred lawsuits in Civil Court, Bronx County on behalf of out-of-state pharmaceutical and durable medical equipment providers arising out of payment disputes involving numerous insurance carriers. The firm touted
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Waging the War of Wages: Board Revises Employer’s Statement of Wage Earnings (Form C-240)

On June 19, 2017, the Office of the Chair of the Workers’ Compensation Board in New York issued an official Revision of Employer’s Statement of Wage Earnings — at parties, it simply goes by the Form C-240. For the most part, the Form C-240 has stayed true to its roots: it is still required where an injured worker may be entitled to compensation or death benefits, it still demonstrates the claimant’s wage earnings for the 52 weeks prior to the date
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The Center for Medicare & Medicaid Services Learns about Due Process: Amended Review of Approved Medicare Set-Asides and What it Means for Defense Bar

Recently, the Center for Medicare & Medicaid Services (CMS) promulgated a revised Medicare Set-Aside (MSA) Re-Review process. This “Amended Review” process is significant, as it actually provides those submitting MSAs for approval with an opportunity to revise and amend submitted MSA proposals upon an unfavorable determination from CMS. Previously, CMS has either been unwilling to re-review a submitted MSA or has limited its review following its determination. This has been true even in the face of a significant change in
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Can I Apportion to that Prior Injury/Condition?

Apportionment is an excellent mitigation strategy for carriers/employers. There are a couple of different scenarios to review when addressing apportionment; however, the threshold issue is permanency. Generally speaking, New York State Workers’ Compensation Law does not permit apportionment prior to permanency. The most common form of apportionment involves a prior compensable event. Under this scenario, there is no requirement that the carrier/employer prove an “active and symptomatic condition” at the time of the new/later injury. Addressing apportionment to a prior
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When is Late Payment of Settlement Monies Excused?

Once a penalty for late payment pursuant to an approved settlement agreement is assessed under N.Y. Workers’ Compensation Law § 25 (3) (f), it is automatic, mandatory, and self-executing. This means that virtually no excuse will get you out of paying the hefty fine of 20 percent of the overall settlement agreement and an additional $50 fine due to the state treasury. An office error or clerical mistake will not be sufficient to reverse the penalty. For example, a carrier
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Opioid Epidemic: Let the Weaning Begin

In the workers’ compensation world, the Board has acknowledged opioid addiction as “a major public health crisis” that “deeply affects” New York’s injured workers. So it comes as no surprise that in that same announcement, the Board re-asserted its opinion that long-term opioid use is rarely recommended and should be done in restricted circumstances with much oversight. While some claimants’ counsels like to argue that opioid use is not an issue that should be decided upon by a judge and
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Sure, Work Can be Stressful. But Can that Result in a Workers’ Compensation Claim in New York?

Everyone has experienced stressful times while at work, whether they were tight deadlines, arguments with a coworker, or dealing with difficult customers. Can that stress, and any resulting psychological issues, be considered a compensable Workers’ Compensation claim in New York State? The answer, not surprisingly, is that some, but not all, psychological injuries are compensable. It has been held that undue or excessive work-related stress and anxiety may constitute an accident under the NYS Workers Compensation Law. Section 2(7) of
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Lost in Translation: Proposed Changes to Interpretation for Non-English Speaking Claimants

The Workers’ Protection Coalition released a study that concludes claimants who need English language translation are not being sufficiently serviced by the current procedures of the New York Workers’ Compensation Board (WCB). Flaws in these procedures could expose claims to capricious appeals by claimant’s counsel. Over the course of seven months, the Workers’ Protection Coalition observed approximately 500 hearings throughout New York City. The results found that 88 hearings had a claimant who required interpretive services. Of those 88, at least
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Post-Accident Drug Testing: Part 3 — New York

The New York Workers’ Compensation Board and courts have previously accepted that an employee’s refusal to comply with an employer-mandated drug test constituted good cause for termination and a voluntary withdrawal from the labor market. In recent years, however, the Board and courts have taken a more discerning approach regarding the enforceability of employer policies which “seek to discourage their employees from pursuing Workers’ Compensation claims.” Matter of Asem v. Key Food Stores Co-Op and Matter of Rodriguez v. C&S
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