New York Archives - Page 2 of 6 - Workers' Compensation Defense

July 22, 2019 Disability Benefits / New York

The Biggest Loser: How to Handle Requests for Causally Related Bariatric Bypass Surgery

Under the New York State workers’ compensation law, an employer or carrier “shall promptly provide for an injured employee such medical, surgical, optometric or other attendance of treatment . . . for such period as the nature of the injury or the process of recovery may require.” This is a pretty general requirement, but it opens the door to a new question: what happens when an injured worker requires back surgery, but is not a candidate because he or she is overweight? They have two …

Credit on SLU Payments and Recovery of a Third-Party Action Lien: Why They Live Together in Perfect Harmony

In New York, Workers’ Compensation Law Section 15(4-a) provides a carrier the right to take a credit against a subsequently determined schedule award for disability payments that have already been received for the same injury. This is relatively common knowledge in the world of workers’ compensation, and this credit is never met with much pushback from claimant’s counsel – unless, of course, a third-party action is involved.

Under Workers’ Compensation Law Section 29, the carrier is permitted both a recovery of benefits previously paid – …

June 24, 2019 New Jersey / New York

The Interstate Medical Provider Claim: Unsettled Jurisdictional Questions Open the Floodgates in New Jersey

As overall filings in the New Jersey Workers’ Compensation Courts have been falling, one particular type of claim is on the rise: the Medical Provider Application for Payment or Reimbursement of Medical Payment. The statutory authority for these “Medical Provider Claim Petitions” (MCPs) is found in a single sentence in the depths of New Jersey Statutes Annotated 34:15-15: “[e]xclusive jurisdiction for any disputed medical charge arising from any claim for compensation for a work-related injury or illness shall be vested in the division.” The precise …

June 4, 2019 New York / permanent partial disability

The Carriers’ New Tool: Jacobi Medical Center

There are very few concepts under the New York Workers’ Compensation system that are in favor of the employer and carrier. Once a claim is established, employers and carriers have few tools on their side to even the playing field in the claimant-friendly world of workers’ compensation. In appropriate situations, for example, employers and carriers can litigate the issues of labor market attachment, fraud under WCL 114(a), and further causally related disability.

In February 2019, a board panel decided the case of Jacobi Medical Center…

June 3, 2019 Disability Benefits / New York

Raising Self-Limitation on Reduced Earnings: A New Approach

How many times has your attorney heard this whispered after raising labor market attachment: “Just go get any job out there and they’ll pay you the difference – any job will do.” If you work two hours a week, you’re attached and owed reduced earnings. This scenario came up during a recent litigation on the issue of labor market attachment and entitlement to awards. In that case, the claimant’s attorney maintained that the claimant was “working for someone he met online,” taking care of their …

May 13, 2019 New Jersey / New York

Shifting Liability: A Lesson for General Contractors

Imagine this, you, a general contractor based in New Jersey, just secured a project from one of the biggest retailers to do some work at its warehouse in New York. Given the magnitude of the project, part of the work is subcontracted to another New Jersey company that guarantees it has workers’ compensation insurance. The project begins and you are unfamiliar with the number of subcontractor employees on-site, their day-to-day work responsibilities, or how work tasks are assigned.

Several weeks later, one of the subcontractor’s …

May 13, 2019 New York / Temporary Total Disability (TTD)

Proposed New York State Bill Proposes Sweeping Changes to NYS Workers’ Compensation System

Assemblyman Harry Bronson and State Senator Jessica Ramos have recently introduced Bill A7045 to the NYS Assembly and Senate that proposes sweeping changes to the NYS Workers’ Compensation System. As discussed below, if the bill were to be passed in its present form, it will have an impact on not only injured worker’s rights to potentially pursue a claim against their employer following a work-related injury, but also on how the workers’ compensation claim is handled throughout its duration.

Perhaps one of the most sweeping …

May 6, 2019 Medical Expenses / New York

Do it Right or Pay the Price (of Medical Bills)

When an injured worker receives a medically necessary treatment, the employer or insurance carrier is responsible for payment of the treatment when the claim has been accepted or established. See NYCRR section 325-1.25. However, when the treatment is not medically necessary or under the Medical Treatment Guidelines, the carrier can object by filing the New York State Workers’ Compensation Board C-8.1 form (a copy should go to the WCB, the employee, their representative and the health provider). Unfortunately, if the objection is late or improperly …

April 15, 2019 Disability Benefits / General / New York

One Missing IME, Too Many

I recently attended a hearing that was scheduled pursuant to claimant’s RFA-1, requesting reinstatement of awards. You’re probably wondering, why were awards suspended in the first place? Because claimant had missed three scheduled independent medical examinations (IMEs)! She also did not have current medical evidence of a further causally related disability at the last hearing. The prior notice of decision read wonderfully, “suspension is effective until such time that the claimant produces up to date evidence of disability and indicates a willingness to attend the …