Category: New York

General / New York

Does a Denial of a “Defective” RB-89 Constitute a Denial of Due Process?

Recently, the Workers’ Compensation legal community has seen a series of decisions issued by the Workers’ Compensation Board that seem to mark a change in policy on behalf of the Workers Compensation Board. Specifically, the decisions have focused around one crucial issue- does a party’s failure to properly and fully completely fill out the required form to maintain an application for board review or rebuttal (RB-89 or RB-89.1) render the entire application defective?

In a series of decisions, the Workers’ Compensation Board has seemed to …

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General / New York

Difficulties and Questions Presented by the Board’s New Digital Audio Recordings

Since the inception of the statewide virtual hearing platform in March of this year, there have been many concerns over the efficiency and effectiveness of the new hearing process. One of the major concerns has been whether there will be a clear, concise, and easily accessible record of workers’ compensation hearings. The virtual hearing platform brought with it a digital audio recording system that records all workers’ compensation hearings verbatim. This system replaced the old system of a court stenographer being present for every hearing. …

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General / New York

Know Your Client’s Special Preferences

For controverted workers’ compensation claims in New York, the issue of general versus special employment can be raised by your client as a defense to liability. The issue of general versus special employment usually arises in circumstances when the claimant is hired and paid by one employer but works at the location and under the direction of another employer. For instance, a claimant who works for a temporary staffing agency and is placed at assignments with several employers and is then injured at the site …

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Medical Marijuana / New York

“New York State of Mind”- Altering Substances: Carriers Must Now Reimburse Claimants for Medical Marijuana

On June 4, 2018, the New York Workers’ Compensation Board in Our Lady Victory of Homes officially directed a carrier to reimburse a claimant for medical marijuana expenses. G085 6672, 2018 WL 2752819 (N.Y. Work. Comp. Bd. June 4, 2018). This decision has been in the making since February of this year, when the board panel found in WDF Inc. that reimbursement is proper if the medical provider requests a variance from the Medical Treatment Guidelines (MTG). G140 3803, 2018 WL 1723750 (N.Y. Work. Comp. …

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New York

What Did You Know and When Did You Know It? The Meaning and Impact of Knowledge in Occupational Disease Claims

There are statutes of limitation relating to occupational diseases which reference the claimant’s knowledge of their condition and other factors. Generally, I find that people tend to misinterpret the meaning of knowledge in these contexts; as such, I will endeavor to provide you with a general idea of what this means in a workers’ compensation context in New York claims.

The first reference I’ll discuss comes from New York Workers’ Compensation Law Section 28. This section governs the timely filing of claims and limits filing …

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New York

Defending Against Darcon: The Policy Language is Controlling

In 2011, the Board Panel issued a decision in Employer: Darcon Construction (2011 NY Wrk comp G0223167), which contained one throwaway line that has been causing confusion at the hearing level ever since. In this case, a specific work site was covered by a wrap up policy. The Board Panel found that no discrete accident occurred at the work site, therefore, the proper carrier was the carrier of the general employer’s workers’ compensation policy. Wrap up policies refer to such owner or carrier controlled policies …

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New York / Schedule Loss of Use

New York Sets Boundaries: How to Calculate Schedule Loss of Use of the Shoulder in 2018

The New York Appellate Division has provided direction on what constitutes an improper calculation of the schedule loss of use of a shoulder. In Matter of Maloney v. Wende Correctional Facility, 2018 WL 456207 (January 18, 2013), the claimant injured his right shoulder as a result of a work related accident on July 30, 2013. The claimant’s treating physician rendered a permanency finding of 90 percent schedule loss of use of the right arm. The employer and the insurance carrier, collectively “the employer”, obtained …

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New York

Pre-Hearing Conference Statement Crackdowns Throughout New York

Throughout New York State, we are starting to notice the Law Judges becoming extremely strict on the content placed on the carrier’s Pre-Hearing Conference Statements which accompany claim denials.  Where Law Judges used to be lenient, they are now requiring more detailed information regarding the denial and the employer witnesses who will be called to testify — and in some cases precluding witnesses due to lack of necessity or vagueness on the PH-16.2 forms.

The procedure for denying claims has not changed. The carrier is …

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New York / Virtual Hearings

The How-To’s of Virtual Hearings

New York State has recently revealed that it will be implementing a virtual hearing procedure for all workers’ compensation hearings. The roll-out of the virtual hearing process began in November and is already in place in select downstate hearing points and is making its way to Binghamton and other upstate hearing locations in the very near future.

The virtual hearing process allows (read: strongly encourages) claimants, attorneys, licensed representatives, and witnesses to appear at all workers’ compensation hearings via their computer, tablet or mobile device. …

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LOWEC / New York

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 noted “that the claimant’s request for a 100 percent loss of wage earning capacity …

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