It’s Possible to Avoid Total Industrial Findings When Claimants Have a High Impairment Rating

Recent Board Panel decisions are providing guidance for employers to successfully avoid a total industrial finding when addressing Loss of Wage Earning Capacity. Indeed, there does not appear to be any basis under the law for an administrative law judge to find a total industrial disability. In Town of Fenton, Case Nos. G0501597, 90502069, G0087246, 2015 WL 7067972, at *6 (N.Y. Work. Comp. Bd. Nov. 5, 2015), the Board Panel
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To Pay or Not to Pay While Investigating a Claim

New York State Workers’ Compensation law §21-a allows an employer/carrier to pay lost wage benefits or prescribed medicine for up to one year without admitting liability and without prejudice to the right to controvert the claim. The purpose of this section of the law is to provide workers lost wage benefits and payment of prescription medicine while the employer/carrier continues to investigate the compensability of the claim. However, § 21-a
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Live Outside of New York? The Medical Treatment Guidelines Still Apply

In a recent Board Panel Decision, In the Matter of Hospice Inc., 2017 NY Wrk Comp 59513410, the Board found that the Medical Treatment Guidelines apply to any treatment provided to any claimant, regardless of where the claimant lives or where the treatment is provided, for treatment to the neck, mid and low back, shoulder, knee, carpal tunnel, and non-acute pain. Notably, the Board held that the applicability of the
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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
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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
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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
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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
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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
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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
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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
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