(46234,26,'2021-08-16 05:11:12','2021-08-16 09:11:12','<h1><span style=\"color: #211865;\">SLU/PHP</span></h1>\r\n&nbsp;\r\n<table style=\"width: 38.7524%; height: 300px;\">\r\n<thead>\r\n<tr style=\"height: 47px;\">\r\n<th style=\"height: 47px;\"><span style=\"color: #211865;\">Member Lost</span></th>\r\n<th style=\"height: 47px;\"><span style=\"color: #211865;\">Weeks of Compensation</span></th>\r\n<th style=\"height: 47px;\"><span style=\"color: #211865;\">PHP</span></th>\r\n</tr>\r\n</thead>\r\n<tbody>\r\n<tr style=\"height: 23px;\">\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">Arm</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">312</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\"> 32</span></td>\r\n</tr>\r\n<tr style=\"height: 23px;\">\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">Leg</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">288</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\"> 40</span></td>\r\n</tr>\r\n<tr style=\"height: 23px;\">\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">Hand</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">244</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">32</span></td>\r\n</tr>\r\n<tr style=\"height: 23px;\">\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">Foot</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">205</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">32</span></td>\r\n</tr>\r\n<tr style=\"height: 23px;\">\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">Eye</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">160</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">20</span></td>\r\n</tr>\r\n<tr>\r\n<td><span style=\"color: #211865;\">Thumb</span></td>\r\n<td><span style=\"color: #211865;\">75</span></td>\r\n<td><span style=\"color: #211865;\">24</span></td>\r\n</tr>\r\n<tr style=\"height: 23px;\">\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">1st Finger</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">46</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">18</span></td>\r\n</tr>\r\n<tr style=\"height: 23px;\">\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">2nd Finger</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">30</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">12</span></td>\r\n</tr>\r\n<tr style=\"height: 23px;\">\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">3rd Finger</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">25</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">8</span></td>\r\n</tr>\r\n<tr style=\"height: 23px;\">\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">4th Finger</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">15</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">8</span></td>\r\n</tr>\r\n<tr style=\"height: 23px;\">\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">Great Toe</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">38</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">12</span></td>\r\n</tr>\r\n<tr style=\"height: 23px;\">\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">Other Toe</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">16</span></td>\r\n<td style=\"height: 23px;\"><span style=\"color: #211865;\">8</span></td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<!--[CP_CALCULATED_FIELDS id=”1″]-->','SLU/PHP','','publish','closed','closed','','slu-php','','','2022-09-19 13:47:06','2022-09-19 17:47:06','',49704,'https://duplicate-3602675.findlaw5.flsitebuilder.com/?page_id=46234',0,'page','',0),(46235,1927,'2021-08-16 05:27:42','2021-08-16 09:27:42','<h1>M&amp;T Rates</h1>\r\n<table>\r\n<thead>\r\n<tr>\r\n<th>Effective Date</th>\r\n<th>Rate (cents per mile)</th>\r\n</tr>\r\n</thead>\r\n<tbody>\r\n<tr>\r\n<td>1-1-82</td>\r\n<td>23</td>\r\n</tr>\r\n<tr>\r\n<td>2-27-89</td>\r\n<td>24</td>\r\n</tr>\r\n<tr>\r\n<td>2-20-90</td>\r\n<td>26</td>\r\n</tr>\r\n<tr>\r\n<td>1-1-91</td>\r\n<td>27.5</td>\r\n</tr>\r\n<tr>\r\n<td>1-1-92</td>\r\n<td>28</td>\r\n</tr>\r\n<tr>\r\n<td>1-1-94</td>\r\n<td>29</td>\r\n</tr>\r\n<tr>\r\n<td>1-3-95</td>\r\n<td>30</td>\r\n</tr>\r\n<tr>\r\n<td>1-2-96</td>\r\n<td>31</td>\r\n</tr>\r\n<tr>\r\n<td>1-1-97</td>\r\n<td>31.5</td>\r\n</tr>\r\n<tr>\r\n<td>1-1-98</td>\r\n<td>32.5</td>\r\n</tr>\r\n</tbody>\r\n</table>','M&T Rates','','draft','closed','closed','','mt-rates','','','2021-11-30 05:57:45','2021-11-30 10:57:45','',46229,'https://duplicate-3602675.findlaw5.flsitebuilder.com/?page_id=46235',0,'page','',0),(46236,26,'2021-08-16 05:31:34','2021-08-16 09:31:34','[et_pb_section fb_built=\"1\" _builder_version=\"4.16\" global_colors_info=\"{}\"][et_pb_row _builder_version=\"4.16\" background_size=\"initial\" background_position=\"top_left\" background_repeat=\"repeat\" global_colors_info=\"{}\"][et_pb_column type=\"4_4\" _builder_version=\"4.16\" custom_padding=\"|||\" global_colors_info=\"{}\" custom_padding__hover=\"|||\"][et_pb_text admin_label=\"Case Law Updates\" _builder_version=\"4.18.0\" background_size=\"initial\" background_position=\"top_left\" background_repeat=\"repeat\" width=\"50%\" module_alignment=\"center\" custom_margin=\"45px||30px||false|false\" custom_padding=\"15px||15px||false|false\" border_width_bottom=\"4px\" border_color_bottom=\"#211865\" border_style_bottom=\"double\" global_colors_info=\"{}\"]<h1 style=\"text-align: center;\"><span style=\"color: #211865;\">Case Law Updates</span></h1>[/et_pb_text][et_pb_text admin_label=\"Overview\" _builder_version=\"4.18.0\" _module_preset=\"default\" custom_margin=\"||30px||false|false\" custom_padding=\"||0px||false|false\" border_width_bottom=\"4px\" border_color_bottom=\"#211865\" border_style_bottom=\"double\" global_colors_info=\"{}\"]<p style=\"text-align: center;\"><span style=\"color: #211865;\">Every year, LOMAD’s attorneys practice on the cutting edge of the New York Workers’ Compensation Law. We wouldn’t be doing our part for the profession, or our clients, if we didn’t share that knowledge.</span></p>\n<p style=\"text-align: center;\"><span style=\"color: #211865;\">LOMAD’s case law update has been presented far and wide, including at the prestigious NYSIA Annual Meeting in New York City!</span></p>\n<p style=\"text-align: center;\"><span style=\"color: #211865;\">To obtain access to this valuable and expansive resource, please email <a style=\"color: #211865;\" href=\"mailto:jcousins@madwcdefense.com\"><span style=\"text-decoration: underline;\">jcousins@madwcdefense.com</span></a></span></p>\n<p style=\"text-align: center;\">[/et_pb_text][et_pb_text disabled_on=\"off|off|on\" admin_label=\"Case Law Updates (Links)\" _builder_version=\"4.18.0\" _module_preset=\"default\" global_colors_info=\"{}\"]<p style=\"text-align: center;\"><span style=\"text-decoration: underline;\"><span style=\"color: #211865;\"><a style=\"color: #211865; text-decoration: underline;\" 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background_size=\"initial\" background_position=\"top_left\" background_repeat=\"repeat\" hover_enabled=\"0\" global_colors_info=\"{}\" text_text_color=\"#211865\" sticky_enabled=\"0\"]<h1>LOMAD Magazine</h1>\n<h2><strong>Check out the LOMAD Magazine by clicking on any of the volumes below!</strong></h2>\n<p><strong>Want to be a part of our mailing list? Email us at <a href=\"mailto:Mail@Madwcdefense.com\">Mail@Madwcdefense.com</a>!</strong></p>\n<p>&nbsp;</p>[/et_pb_text][et_pb_image src=\"https://thelomad.com/getmad.today/wp-content/uploads/2022/08/LOMADMagazineVol13July2022Cover.png\" title_text=\"LOMADMagazineVol13July2022Cover\" url=\"https://thelomad.com/getmad.today/wp-content/uploads/2022/08/LOMADMagazineVol13July2022.pdf\" url_new_window=\"on\" admin_label=\"July 2022\" _builder_version=\"4.18.0\" global_colors_info=\"{}\"][/et_pb_image][et_pb_image src=\"https://thelomad.com/getmad.today/wp-content/uploads/2022/08/LOMADMagazineVolume12June2022Cover.png\" title_text=\"LOMADMagazineVolume12June2022Cover\" url=\"https://thelomad.com/getmad.today/wp-content/uploads/2022/08/LOMADMagazineVolume12June2022.pdf\" url_new_window=\"on\" admin_label=\"June 2022\" _builder_version=\"4.18.0\" global_colors_info=\"{}\"][/et_pb_image][et_pb_image 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16:44:12','',0,'/wp-content/uploads/sites/1503150/2021/08/LOMAD-newsletter-Volume-4-August-1.pdf',0,'attachment','application/pdf',0),(46270,1251,'2021-08-17 08:09:26','2021-08-17 12:09:26','','AdobeStock_140260471_Preview','','inherit','closed','closed','','adobestock_140260471_preview','','','2021-08-17 08:09:26','2021-08-17 12:09:26','',6,'/wp-content/uploads/sites/1503150/2021/08/AdobeStock_140260471_Preview.jpg',0,'attachment','image/jpeg',0),(46273,1251,'2021-08-17 08:22:50','2021-08-17 12:22:50','','logo','','inherit','closed','closed','','logo','','','2021-11-23 15:07:28','2021-11-23 20:07:28','',6,'/wp-content/uploads/sites/1503150/2021/08/logo.png',0,'attachment','image/png',0),(46300,1251,'2021-08-17 09:00:03','2021-08-17 13:00:03','','AdobeStock_297103193_Preview','','inherit','closed','closed','','adobestock_297103193_preview','','','2021-08-17 09:00:03','2021-08-17 13:00:03','',6,'/wp-content/uploads/sites/1503150/2021/08/AdobeStock_297103193_Preview.jpg',0,'attachment','image/jpeg',0),(46311,1251,'2021-08-17 09:54:40','2021-08-17 13:54:40','','icon1','','inherit','closed','closed','','icon1','','','2021-08-17 09:54:40','2021-08-17 13:54:40','',6,'/wp-content/uploads/sites/1503150/2021/08/icon1.png',0,'attachment','image/png',0),(46312,1251,'2021-08-17 09:54:43','2021-08-17 13:54:43','','icon','','inherit','closed','closed','','icon','','','2021-11-17 16:20:47','2021-11-17 21:20:47','',6,'/wp-content/uploads/sites/1503150/2021/08/icon.png',0,'attachment','image/png',0),(46313,1251,'2021-08-17 09:54:46','2021-08-17 13:54:46','','icon2','','inherit','closed','closed','','icon2','','','2021-11-17 16:20:38','2021-11-17 21:20:38','',6,'/wp-content/uploads/sites/1503150/2021/08/icon2.png',0,'attachment','image/png',0),(46317,1251,'2021-08-17 10:05:28','2021-08-17 14:05:28','','AdobeStock_447848300_Preview','','inherit','closed','closed','','adobestock_447848300_preview','','','2021-08-17 10:05:28','2021-08-17 14:05:28','',6,'/wp-content/uploads/sites/1503150/2021/08/AdobeStock_447848300_Preview.jpg',0,'attachment','image/jpeg',0),(46327,25,'2021-08-09 00:00:00','2021-08-09 04:00:00','In a recent claim, we obtained surveillance of a claimant performing activities well outside of their doctor’s restrictions. From there, we obtained social media sweep-reports.\r\n\r\nOf note, the carrier’s obligation to disclose surveillance materials applies not just before the carrier’s questioning of the claimant, but also prior to when the carrier prompts the WCLJ’s questioning of the claimant. <u>See Matter of Moreilli v. Tops Mkts.</u>, 107 AD3d 1231 (3d 2013). <u>See also Matter of Aeropostale</u>, 2012 NY Wrk Comp G0410425, wherein the Board Panel held that the carrier does not need to disclose the evidence from social media before questioning the claimant.\r\n\r\nAt our hearing, awards were updated. However, the WCLJ did not confirm the work status during that period. Therefore, we had to prompt the Judge to ask the work-related questions before updating awards. Upon doing so, we had to disclose the surveillance to avoid preclusion. While our litigation strategy was to hold off on disclosure of the surveillance, we did not want to lose the opportunity to use the surveillance under a fraud claim.\r\n\r\nUpon conclusion of the claim, we received a call from claimant’s counsel – advising that they were interested in a section 32 full and final agreement – as the claimant, fully admitted to activities that their attorney was not aware of.\r\n\r\nFrom there, we used an evidence based MSA to finalize the medical portion of the claim under the full and final Section 32 agreement. We were able to reduce the indemnity portion of the claim based upon the surveillance and social media reports, prior to the claim moving forward with fraud.\r\n\r\nOverall, it is important to remember when we must disclose surveillance (not social media). Once we disclosed the surveillance, without any specifics given to claimant/claimant’s counsel, they knelt to our request and we settled on a full and final agreement saving countless dollars on litigation of fraud. While LOMAD was ready to proceed and aggressively push the issue of fraud, once it was properly disclosed we were able to settle the claim in our favor.  This was a great win for LOMAD’s client.\r\n\r\nThe use of surveillance and social media sweep has been increasingly useful. Here at LOMAD, once we take the deep dive and determine the need for surveillance and/or a social media sweep, the results carry the Day.','Surveillance, Social Media…Section 32?','','publish','closed','closed','','surveillance-social-mediasection-32','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/08/surveillance-social-mediasection-32/',0,'post','',0),(46329,25,'2021-08-16 23:52:50','2021-08-17 03:52:50','One of the greatest things the Board ever did for carriers was include a provision in the 2018 Workers’ Compensation Guidelines for Determining Impairment (“Guidelines”) that providers need to measure range of motion of unaffected contralateral limb and use that as a baseline, if appropriate. Section 1.3 of the Guidelines state that using the contralateral limb is not appropriate where the opposite side has been previously injured or is not otherwise available for comparison (in cases of amputation, for example).\r\n\r\nSo that brings us to the fun part. As we know, it’s virtually impossible to prove apportionment to pre-existing arthritis/degenerative conditions without proof that the prior condition was “disabling in a compensation sense”. That’s often impossible because most claimants have either been living with it without treatment, or they’ve treated with their primary care doctor and don’t disclose it because it wasn’t the result of an “injury”. And unless we know the treatment records are out there, you’re stuck. You can’t ask for what you don’t know exists and no Judge will authorize a fishing expedition.\r\n\r\nTHIS IS A WAY AROUND THAT! People typically develop arthritis symmetrically. While one side may have slightly more advanced arthritis if it’s the dominant side, it can generally be assumed that if one side has arthritis, the other side does as well. If that arthritis has resulted in loss of motion on the contralateral side, then we’re cooking! The Board’s provision essentially allows us to assume that if pre-existing degenerative arthritis caused losses in range of motion on one side, it did on the other as well. And if the contralateral limb was not injured in any other accident, you can cause that as the baseline instead of the normal values listed in the Guidelines. So it’s a way of apportioning out the prior degenerative condition without going through the torture of trying to prove apportionment. It’s simple: The provider measures both sides. If the unaffected limb has abnormal range of motion and no injuries, that has to be used as the baseline. PERIOD.\r\n\r\nYou may be saying to yourself, d’uh! We know that. But some providers don’t! I’ve personally had many depositions where providers think they just have to measure the contralateral side and not actually use it as a baseline. Which brings me to my helpful hint: BE SURE TO ASK THE DOCTOR IF THEY NOT ONLY MEASURED THE CONTRALATERAL LIMB, BUT WHETHER THEY USED IT AS A BASELINE AS WELL! If the answer to that is no, you pretty much instantly discredit their Schedule Loss of Use (SLU) opinion.\r\n\r\nBut what about cases where our own IME doesn’t do that either, you ask? Well that should never happen because we should not be using IMEs that don’t know the Guidelines! But under the general principle that everyone gets it wrong sometimes, YOU can figure out what the proper SLU should be by using the contralateral limb measurement yourself and applying the Board’s “formula” to use it as the baseline. Remember, the doctors are only qualified to take range of motion findings and render an OPINION on schedule loss of use, but the ultimate determination rests with the Judges who CAN take the measurements and apply them to the Guidelines sua sponte if both doctors misapply them. You should be pointing out to the Judge that both doctors made that error, and while the physical exam findings may be accurate, the conclusion as to percentage SLU is not. Then put forth the alternative number, and you should be good to go.\r\n\r\nYou can find how the appropriate formula for using the contralateral extremity as a baseline on the Board’s website on the page for “Impairment Guidelines: Scheduled Loss of Use Frequently Asked Questions”. <a href=\"https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/hcpp/ImpairmentGuidelines/SLU-FAQs.jsp\" target=\"_blank\" rel=\"noopener\">https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/hcpp/ImpairmentGuidelines/SLU-FAQs.jsp</a>','Using the Contralateral Limb as a Baseline for Calculating Schedule Loss of Use','','publish','closed','closed','','using-the-contralateral-limb-as-a-baseline-for-calculating-schedule-loss-of-use','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/?p=46329',0,'post','',0),(46331,25,'2021-07-26 00:00:00','2021-07-26 04:00:00','The issue of apportionment is confusing.  Many attorneys apply the wrong standard, the wrong timing, or both which can lead to a hodgepodge of contradicting decisions by Judge’s and also sometimes by the Board.\r\n\r\nOne type of apportionment is “legal apportionment.”  Legal apportionment is a principle that may apply when the claimant has a preexisting injury that was <em>not</em> the subject of a NYS Workers’ Compensation injury.  Unlike apportionment between two NYS Workers’ Compensation claims, legal apportionment generally only applies at permanency.  To demonstrate legal apportionment, the previous condition has to contribute to the disability and must be “disabling in a compensation sense.”  For many claimants and sometimes Judges, the fact that the claimant was working without restrictions at the time of injury is <em>the</em> dispositive factor.  That fact, of course, makes it extremely difficult to obtain legal apportionment.  People need to be working to have an injury at all, and unless the claimant was hired under a list of restrictions or working light duty, the issue of ongoing restrictions is usually just based on their testimony.  There are seldom stories of victory on these files, and more often than not they are the ones that leave the sourest of tastes because it is a loophole that can lead to abuse of the system.\r\n\r\nIt was undisputed that the claimant in this victory was working without restrictions at the time of her injury.  She had to pass a physical demonstrating she was able to perform the job prior to being hired.  She was injured on her third day, the first day any physical work was required.  At that time, she was not injured enough to stop working, and only sought some treatment.\r\n\r\nThe claimant eventually went out of work.  After a hard-litigated controversy the claim was established but she was found unattached.  She was required to demonstrate attachment, and in that attempt she produced a resume and gave testimony regarding her prior application for Social Security Disability.  The claimant testified she stopped working after her MVA and did not work again for five years until she started this new job.\r\n\r\nThe claimant’s treating doctor opined that there was no apportionment.  He felt that the claimant’s MVA five years before this instant injury was too far removed in time.  Furthermore, the claimant indicated she did not have ongoing treatment at the time of her Workers’ Compensation injury and was completely healed.  He indicated it was not relevant to her current disability.\r\n\r\nWe obtained the medical records.  The medical records clearly demonstrated no ongoing history of treatment due to the earlier MVA.  We did not however, leave it at that.\r\n\r\nWe also obtained the claimant’s pleadings in her lawsuit for the MVA, where she opined a permanent and severe disability to her sites of injury.\r\n\r\nWe also obtained the claimant’s insurance claim history.  From that we were able to determine that the claimant had over a dozen lawsuits due to injuries in the past few years.  Our site of injury was not directly implicated, but it was still not a good look.\r\n\r\nIn a strange reversal, we argued that the standard was not whether the claimant’s condition was active and symptomatic.  All evidence indicated it was not.  We argued that the standard was whether the claimant was disabled in a compensation sense.  We used all of her prior attachment testimony against her to demonstrate that she was disabled in a compensation sense based on the totality of the evidence.  The WCLJ found that 50% of the claim was unrelated.\r\n\r\nThe shocked claimant’s counsel filed an appeal, but the Board upheld the decision of the WCLJ noting that the treating doctor’s information from the claimant directly contradicted the facts in evidence that the claimant used in order to reattach.  They upheld the 50% apportionment noting that the claimant left work due to her 2014 MVA, did not return for years, and only worked for a couple of days prior to her new accident.  They also made note of the claimant’s lengthy history of lawsuits and her prior filings.  They agreed that apportionment applied as a matter of law based on the totality of the record and the story we told.\r\n\r\nAs an added bonus, we also obtained a 65% LWEC, which was fairly low giving the mitigating factors on this file.','An Exploration of “Legal Apportionment”','','publish','closed','closed','','an-exploration-of-legal-apportionment','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/07/an-exploration-of-legal-apportionment/',0,'post','',0),(46332,25,'2021-07-19 00:00:00','2021-07-19 04:00:00','There have been several cases recently where Carpal Tunnel Syndrome (“CTS”) was determined by providers as causally related to the accident of record in the file.  At first, this determination of causal relationship  seemed pretty straight forward, but a “deep dive” into the file made it clear that the issue of causal relationship was not so clear-cut.\r\n\r\nIn  one case, the treating physician determined  causally related CTS by  attributing the claimant’s condition  to damage in  the median nerve from the accident of record.  A review of the file uncovered an associated MRI report which noted a “ganglion cyst” located along a particular anatomical pathway in the wrist area. As such, we did some research, and were able to find medical journal literature supporting the phenomenon of ganglion cysts in this area causing compression of the median nerve – so as to cause Carpal Tunnel Syndrome. As such, we could argue that the unrelated ganglion cyst was a preexisting condition which likely caused the CTS.\r\n\r\nIn another file, the claimant raised bilateral carpal tunnel syndrome as consequential to a broken left humerus she had sustained in a fall, in the accident of record. During testimony, the treating  provider explained that the claimant’s “extensive treatment” of the left shoulder had led to swelling in the left upper extremity – which then led to nerve damage – which then led to her carpal tunnel on the left side.  He further theorized that carpal tunnel on the<em> right</em> side resulted from resultant overuse of her right hand – based on the left sided carpal tunnel syndrome damaging her left hand. During deposition, however, we were able to get the provider to concede that the claimant’s “extensive treatment,”  which he had blamed for causing the swelling in her left upper extremity, had involved treatment (including radiation)  for unrelated tumors in the shoulder. As such, we ended up with a reasonably strong argument that the claimant had not sufficiently shown any of the claimant’s carpal tunnel syndrome to be causally related.\r\n\r\nAs such, a diagnosis of CTS should be looked at from all angles, as one might be surprised at the different theories of causation one might uncover.','Carpal Tunnel and Causal Relation Not Always So Clear-Cut','','publish','closed','closed','','carpal-tunnel-and-causal-relation-not-always-so-clear-cut','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/07/carpal-tunnel-and-causal-relation-not-always-so-clear-cut/',0,'post','',0),(46335,25,'2021-08-02 23:57:40','2021-08-03 03:57:40','As everyone probably knows, Workers’ Compensation Law §21(4) presumes that a work-related accident isn’t only due to an employee’s intoxication on the job, <em>unless</em> there is substantial evidence to the contrary.  Workers’ Compensation Law §10(1) similarly says that an employer must compensate employees for a work-related injury regardless of fault unless the injury was solely caused by intoxication from alcohol or a controlled substance.  The World Health Organization defines intoxication as a condition following administration of a psychoactive substance and results in disturbances in the level of consciousness, cognition, perception, effect or behavior or other psycho-physiological functions and responses.  The Court has upheld this, finding that intoxication may overcome the presumption of §21.  “The documentary and testimonial evidence presented by the employer as to decedent’s intoxication, the circumstances preceding the accident and the manner in which it occurred sufficiently rebutted the presumption contained in Workers’ Compensation Law § 21(4) and established that decedent’s intoxication was the sole cause of the accident.”  <u>Purcell v. American Sip Corp</u>.  248 A.D.2d 844 (1998), citing  <u>Matter of Majune v. Good Humor Corp</u>., 26 A.D.2d 849, 849–850, 273 N.Y.S.2d 819; <u>Matter of Bowers v. Long Is. Light. Co</u>., 1 A.D.2d 719, 720, 146 N.Y.S.2d 860; <u>Matter of Calka v. Mamaroneck Lodge BPOE</u>, 285 App.Div. 1093, 139 N.Y.S.2d 316;  <u>Matter of Balk v. Austin Ford Logan,</u> 221 A.D.2d 795, 633 N.Y.S.2d 675)<em> .  </em>In other words, if a claimant is drunk or drugged, you may have a viable intoxication defense.\r\n\r\nWe had a recent case where a worker fell 150 feet off a cell tower.  (Yes, he survived.)  After being notified of the accident, the carrier sent an investigator to interview the owner of the company, who confirmed that he had personally checked over the safety gear two days before the accident and it was in perfect working condition.  That employer also said that the claimant had a longstanding history of drug abuse.  He hadn’t had the claimant take a urine drug screen when he hired him because it was while the state was largely locked down, and he hadn’t gotten a drug screen when the restrictions lifted because he trusted the claimant’s word that he wasn’t using.  (Pro tip to any employers reading this: Never take their word.  <em>Always</em> get a drug screen!)  The employer also said he had been the first one to reach the claimant after he fell, and the claimant apologized to him and said he “screwed up.”  The carrier very sensibly subpoenaed the emergency department records, which revealed that the hospital performed a urine drug screen upon admission which tested positive for an assortment of illegal drugs, including cocaine and marijuana.  (Second pro tip: always get the emergency room records and make sure your subpoena covers tox screens.  Hospitals don’t always conduct them, but a lot of EDs will run a tox screen upon admission.  And it’s always useful to see what the injured worker has to say right after the accident compared to what s/he tells their own doctor a few weeks or months later!)\r\n\r\nSo now we had a positive drug screen and a seething employer ready to testify that the safety equipment was working.  We still had to overcome the §21 presumption and show that this accident was solely caused by the claimant’s use of controlled substances.  We deposed the ED doctor, who confirmed that the positive tox screen was performed on the day of accident and conceded that the drugs shown in the tox screen could cause altered cognition, altered coordination, euphoria, dizziness and altered consciousness.  He also confirmed that the drugs administered by the hospital for pain control wouldn’t flag as any of the illicit substances on the tox screen.  We now had a medical opinion which strongly suggested the claimant was in an altered state at the time of the accident and confirmation that his positive tox screen was taken on the date of the accident and was not, despite the claimant’s attorney claimed, a result of the medications provided by his doctors.\r\n\r\nIt was a good start, but we still needed to convince the judge that there wasn’t any other cause for the claimant’s accident.   Here, that was relatively straightforward.  He fell off a cell phone tower and it wasn’t because the tower broke, so either he’d screwed up with his safety gear, or the gear itself had failed.  In order to win, we had to prove that the gear hadn’t failed.  We reached out to the employer witness, who was the owner of the company, to prepare him to testify.  While talking to him, we focused heavily on the usual safety requirements and how they worked to make sure that we had a solid understanding of what precautions would have applied if the claimant had properly used his safety gear. We even had the employer hop into a set of gear himself and send us pictures so we understood what each piece of gear was and how it worked!  We built a timeline to make it clear to the judge that the safety gear was checked by our witness two days prior to the accident, checked by the injured worker himself on the day of the accident before he went up the tower, and checked by our witness after the accident before it was confiscated by OSHA as part of their investigation.  We also made sure our witness understood why this timeline was so important, and why we needed the judge to conclude that the safety gear couldn’t possibly be the reason the claimant fell.\r\n\r\nAt the trial, the claimant asserted that he fell after leaning out too far to push a boom away, which was part of his job duties, and vehemently denied taking any drugs.  However, he couldn’t explain away the positive tox screen on cross and he had to concede that he hadn’t reported any problems with his safety gear before he went up the tower.  Because we’d gone over it with him beforehand, our witness kept his cool and was able to discuss the safety equipment and how it worked in detail.  He explained that if the claimant had properly used his safety gear, he would only have fallen about 9 inches.  Then, in a coup de grâce, he testified that while kneeling over the claimant on the ground, he looked up and saw the safety gear still properly attached to the tower.  He confirmed that he had personally checked it before OSHA took it, and it worked perfectly.  The only explanation for the fall was user error.\r\n\r\nThe judge agreed with us, and disallowed the case completely under §10(1).','Disallowance Due to Intoxication','','publish','closed','closed','','disallowance-due-to-intoxication','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/?p=46335',0,'post','',0),(46337,25,'2021-07-05 00:00:00','2021-07-05 04:00:00','One fateful morning, white smoke appeared over a street in New York City following the explosion of an underground pipe insulated with asbestos, bits of which littered the scene. And where was the claimant? At home, having worked the night shift, and wouldn’t return to the scene for another 36 hours or so. When they eventually turned up for work, they saw notices on some of the buildings regarding an evacuation, and there were folks on the street in hasmat suits engaged in clean-up activities. After all, the news said there was asbestos involved. Claimant got torqued and wanted to speak with HR about what’s being done to protect them, but got no response.\r\n\r\nMonths pass, and Claimant begins to complain of headaches, difficulty concentrating, and other cognitive dysfunctions. Of course, when they begin to see doctors, they tell every single one they were exposed to asbestos in the aftermath of this explosion. Who cares if the MRI he eventually received was suggestive of a traumatic brain injury? The doctors stick to their theory of toxic encephalopathy due to this asbestos. An IME was secured and, while the most likely diagnosis was still toxic encephalopathy, it was specifically noted that the newspaper articles supplied declared the air around the incident “safe to breathe” before the claimant ever returned to work, so no causal relationship was found. Litigation precipitated, and the only information claimant’s doctors had regarding exposure was that provided by the claimant. One doctor was so bold as to stick with his conclusion “until something’s put in front of him that would controvert it.”\r\n\r\nAn almost hour and a half long trial followed, wherein the testimony of the claimant and two lay witnesses took place, the latter of which wrecked our timely notice defense to shreds. However, the claimant testified poorly. While they testified they worked the day of the explosion and the 2 days that followed, surrounded by dust that wasn’t properly cleaned-up, their timecard (already in eCase) cried foul; the first time the claimant worked after the explosion was closer to 36 hours than 12. The claimant testified the only information they had regarding their exposure was “probably” the news, conceding they’d never reviewed the environmental report, wherein samples were taken the day after the explosion, before the claimant returned to work, and analysis thereof showed no asbestos. And, if shameless citations to exactly where in the eCase that information could be viewed while we asked the claimant some other questions, like how the onset of his symptoms wasn’t until over a year after the alleged exposure, who’s to say.\r\n\r\nSummations followed, with claimant’s attorney alleged they inhaled “something toxic,” and Claimant believed there may have been asbestos in the air, but “something” blanketed the whole area. They continued by noting inhalation issues are slow moving issues before going off on a tangent about how, as we know from 9-11, even just breathing dust is harmful. They’d clearly been caught unprepared by the environmental report. We argued, not only was there proof there was no asbestos in the building when Claimant alleged they were exposed, but there were significant issues with Claimant’s testimony and memory, with proof Claimant made numerous misstatements to their doctors; while the doctors found causal relationship based on those statements, medical reports are only as good as the facts they’re based on, and those not in accordance with the true facts should be set aside.\r\n\r\nUltimately, the WCLJ disallowed the claim, noting that while there’s been notice to the employer, there was no accident here, as the claimant wasn’t exposed to asbestos. As the claimant has to prove all the elements of accident, notice, and causal relationship, and there was no accident here, the claim was disallowed. It was no accident.','It’s No Accident','','publish','closed','closed','','its-no-accident','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/07/its-no-accident/',0,'post','',0),(46338,25,'2021-06-28 00:00:00','2021-06-28 04:00:00','At LOMAD, we monitor the Third Department for case law updated to stay on the cutting-edge of workers’ compensation law in New York. This month we noted an interesting decision in <u>Allen v. CPP-Syracuse</u>, that provides a helpful reminder to all of us when we are disputing causal relationship.\r\n\r\n<strong><u>Allen v CPP–Syracuse</u></strong><strong>, 2021 N.Y. Slip Op. 03226 (3d Dept., May 20, 2021)</strong>\r\n\r\n<em>Decision Below</em>: claimant’s generalized anxiety disorder was consequential to his established claim for injuries to his left shoulder and neck.\r\n\r\n<em>Affirmed</em>: The Third Department affirmed the Board’s decision to uphold the establishment of consequential anxiety where the IME doctor and the treating doctor found causal relationship. The carrier argued that their causal relationship opinions should not stand in support of establishment as they did not account for claimant’s treatment records relating to a prior MVA. However, these treatment records were not in the Board file and, while carrier applied to reopen the case to get them put into the Board file, the Board denied their application as they knew about the records for some time and thus did not meet the “within a reasonable time after the applicant has had knowledge of the facts” standard. Therefore, the Third Department agreed with the Board that, where the doctors reviewed claimant’s medical records in the Board file and met with the claimant, the Board’s decision to establish consequential anxiety was supported by substantial evidence.\r\n\r\nThis decision is significant, in light of recent Third Department case law that we use to dispute doctors’ opinions on causal relationship. Critically, the Third Department requires physicians to have a complete and accurate understanding of the history of the accident and the claimant’s medical records and history before making an opinion in a workers’ compensation case. <u>See</u> <u>Fox v. Altmar, –Parish–Williamstown Central School District</u>, 175 A.D.3d 1728, 1729-1730 (3d Dept. 2019) (finding the doctor’s opined causal relationship insufficient to establish the employee’s claim where the doctor did not personally examine the claimant and, most importantly, did not examine claimant’s prior medical records); <u>see also</u> <u>Matter of Johnson v. Borg Warner</u>, 186 A.D.3d 1772, 1773 (3d Dept. 2020) (finding claimant’s medical evidence insufficient to support a claim for an allegedly causally-related meniscal tear where the doctor testified that it is “very reasonable that something could have happened at work that exacerbated a chronic condition” or that there was a “strong possibility” that the claimant suffered an acute meniscal tear).\r\n\r\nThus, what <u>Allen</u> show us, is that we need to remain vigilant of potentially relevant medical records that predate the date of accident, as we need to quickly obtain them and submit them to the Board file to preserve our argument that a doctor’s causal relationship opinion cannot stand due to the doctor’s incomplete or inaccurate understanding of the claimant’s medical history.\r\n\r\nFor more updates on developments in New York workers’ compensation law, stay tuned to our NY WC Blog, please join the New York Workers’ Compensation Forum on LinkedIn, and attend our monthly webinar series, LOMAD &amp; Friends, on the fourth Friday of every month!','Third Deparment Decision: Disputing Causal Relationship','','publish','closed','closed','','third-deparment-decision-disputing-causal-relationship','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/06/third-deparment-decision-disputing-causal-relationship/',0,'post','',0),(46339,25,'2021-06-01 00:00:00','2021-06-01 04:00:00','In a case was established for the right knee, the claimant ultimately underwent right total knee replacement surgery. At a hearing, various awards were made, credit to New York State, and a $3,500 attorney fee was awarded, to be taken out of the reimbursement to the employer.\r\n\r\nThe parties stipulated to a 40% schedule loss of use, with the carrier allowed to take credit for all prior payments, and allowed the carrier to deduct the remaining amount of reimbursement to the employer in the sum of $20,149.34.  A Notice of Stipulated Decision was thereafter filed.\r\n\r\nThe claimant appealed the Stipulated Decision, arguing that there had been no meeting of the minds on the issue of the amount of the prior payments. The claimant alleged that the carrier took credit for the prior $3,500 attorney fee, and also deducted the full amount of the remaining reimbursement. Claimant alleged that he was underpaid by $3,500 as a result.  A Rebuttal was timely filed, noting that all parties had signed the stipulation and had agreed to the figures therein.\r\n\r\nThe Board Panel agreed with the claimant. The remaining amount of the reimbursement to the employer should have been reduced by the $3,500 previously taken from the reimbursement for an attorney fee. The Board Panel directed the carrier to pay the outstanding balance of $3,500 to the claimant. Carriers need to be aware that, even though they are entitled to full reimbursement for wages paid from a schedule loss of use award, they have to be careful not to double count on the prior wages already paid to the employer.','Stipulations, Reimbursements, Underpayments. Oh My!','','publish','closed','closed','','stipulations-reimbursements-underpayments-oh-my','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/06/stipulations-reimbursements-underpayments-oh-my/',0,'post','',0),(46340,25,'2021-07-12 00:13:51','2021-07-12 04:13:51','It’s well known in the Workers Compensation community that the threshold for meeting Prima Facie Medical Evidence (PFME) is extremely low. However, one argument that the Board has found to be quite compelling, is that “pain” is not an injury. There have been some past Board Panel decision which touch upon this argument, but in a very recent Board Panel decision the Board made very clear where they stand on the issue. In EMPLOYER: CONGRGATION MACHNE CHAIM INC, the board found that the diagnosis of “back pain” did not suffice to meet the threshold of PFME. WCB # G281 4719, June 07, 2021. The Board found in that matter that, “The claimant was not diagnosed with a back injury, but rather just with back pain. Pain is a symptom and not a diagnosis and, as such, medical reports that only reference or diagnose pain are not sufficient to constitute PFME of an injury, trauma or illness.” Notably, the Board found that pain was  not sufficient for PFME, despite positive clinical findings, which claimant’s counsel argued were indicative of an injury. Since PFME is an issue which is usually never revisited, as it is interlocutory, it is important to be aggressive at the outset of the claim and recognizing that just because a diagnosis is given with statement of causal relationship, that diagnosis may not be an actual “injury,” and a finding of PFME should be argued against accordingly.','Pain is Not Enough for Prima Facie Medical Evidence','','publish','closed','closed','','pain-is-not-enough-for-prima-facie-medical-evidence','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/?p=46340',0,'post','',0),(46341,25,'2021-05-24 00:00:00','2021-05-24 04:00:00','In a contentious hearing, LOMAD prevailed proving that a claimant voluntarily retired, effectively removing herself from the labor market and the claimant’s subsequent part-time job did not support any claim for reduced earnings. The claimant, who worked at a hospital, was injured and continued to work for a period of time and then took regular retirement. A few months later the claimant got a part-time job at a deli. Claimant was seeking lost time and reduced earnings.\r\n\r\nAt the trial level, claimant testified. Upon conclusion of the testimony, we aggressively argued that the claimant had voluntarily retired – as no doctor suggested or advised to retire, and the claimant testified that it was time for her to retire from the hospital. Further, we argued that the claim for reduced earnings while working at the deli was improper. Specifically, there were no doctors providing any work restrictions and therefore the claimant’s reduced earnings were due solely to the claimant’s own decision to work part-time.\r\n\r\nThe WCLJ agreed with our position and found that the claimant had voluntarily retired from her job at the hospital and was not entitled to lost time. Further, the WCLJ sided with our position that the claim for reduced earnings was based on the claimant’s decision to work part-time, not due to any work restrictions placed on her. Overall, no awards were paid.\r\n\r\nIn this claim, LOMAD took another deep dive into the record which revealed no doctor was advising to retire or provided any work restrictions. With the facts in our corner, we went into the hearing knowing the answers, but needed the claimant to confirm – which she did. This was an excellent win for our client and LOMAD!','Labor Market Attachment and Retirement','','publish','closed','closed','','labor-market-attachment-and-retirement','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/05/labor-market-attachment-and-retirement/',0,'post','',0),(46342,25,'2021-05-17 00:00:00','2021-05-17 04:00:00','This was a controverted claim for chemical exposure for an accident which occurred in 2019. The claimant was working as a bus driver and alleged that she was exposed to fuel additives somehow coming out of the heating vents, and that she has been subject to repeat exposures. The history of the accident provided to each of the claimant’s providers, as well as the independent medical examiner, what that she was exposed to chemicals repeatedly while working and developed certain symptoms each time she was exposed. Given the history provided, it was unanimous among medical providers, including the independent medical examiner, that causal relationship existed. Upon taking testimony of the medical providers, the providers conceded the claimant suffered other medical conditions which may be causing her to be symptomatic but are not necessarily related to work. Then, upon taking lay witness testimony, the various witnesses testified that it was impossible for the claimant to have been exposed to the fuel additive, as she never came in contact with it and the vents are not connected to the gas tank, so it would be impossible for it to have come out of the vents. They also testified the additive was only added once, and would have dissipated the same day, which is inconsistent with the history the claimant was giving which claimed that the additive was added on multiple occasions subjecting her to repeat exposures.\r\n\r\nThe Carrier relied heavily on a recent Third Department decision which have very similar facts and found that “the lack of objective findings to support claimant’s complaints, coupled with the employer’s contrary testimony regarding claimant’s working conditions and the inconsistencies in claimant’s disclosures to [the medical providers], raise issues with claimant’s credibility that the Board was free to resolve against her. For all of these reasons, the Board’s decision finding that claimant failed to meet her burden of establishing a causal relationship between her employment and her claimed disability [was] supported by substantial evidence.” <u>Matter of Collen Hanely v. Trustees of Columbia University</u>, 189 A.D.3d 1847 (3<sup>rd</sup> Dept. 2020).\r\n\r\nThe WCLJ ultimately found that the lay witnesses had direct knowledge of when the fuel additive was added and that the evidence established that there were no additional exposures to explain the claimant’s symptoms. The WCLJ also found that the claimant’s medical providers admitted the claimant had unrelated conditions which could have accounted for claimant’s symptoms. The claim was disallowed as a result.','Claim Disallowance With Unanimous Medical Opinion Giving Causal Relationship','','publish','closed','closed','','claim-disallowance-with-unanimous-medical-opinion-giving-causal-relationship','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/05/claim-disallowance-with-unanimous-medical-opinion-giving-causal-relationship/',0,'post','',0),(46343,25,'2021-05-10 00:00:00','2021-05-10 04:00:00','Workers’ Compensation Law § 18 provides that the claimant must give written notice of an injury to his employer within 30 days of the accident. However, the statute further provides that the failure to give timely written notice may be excused by the Board if it finds that the claimant had a sufficient reason for the failure to provide timely written notice, the employer had actual knowledge of the accident or the employer was not prejudiced by the lack of timely notice. The courts have further found that the claimant has the burden of showing that the delay in notification did not prejudice the employer, particularly where the accident was unwitnessed. (<em>Zraunig v New York Telephone Company</em>, 32 A.D2d 686 [3rd Dept 1969]). The Court has found prejudice when the delay aggravates the injury or prevents the employer from properly investigating the claim. (<em>Yagaloff v Lincoln Hall,</em> 137 AD2d 955 [3rd Dept 1988]; <em>Pierce v New York Telephone Company</em>, 99 A.D.2d 898  [3rd Dept 1984]).\r\n\r\nWe were successful in getting the Board to reverse a finding of the WCLJ who established an untimely noticed claim.  In this claim, it was undisputed that the claimant did not provide any notice of the injury to the employer within 30 days of the accident, either written or oral.  We argued that the delay prevented the employer from properly investigating the claim.  We provided employer testimony that the employer has a procedure for keeping closed circuit video of the specific work area for the 30-day notice period.  When there is an unwitnessed accident that is not accepted, the employer testified that they do preserve and review these videos once notice is provided.  The employer produced clear evidence of prejudice.\r\n\r\nIt was also undisputed that this was an unwitnessed accident.  It was the claimant’s burden to demonstrate that the delay in notification did not prejudice the employer.\r\n\r\nIn an effort to shift the burden of proof claimant’s counsel made a ridiculous argument that the employer should keep all videos on file in perpetuity in case there is a late notification.  Claimant’s counsel further made a circular argument that because there was no surveillance the employer could not prove that there was anything even relevant on the surveillance.  (Honestly, if we knew that there would not be prejudice- that was the entire point of our argument.)  The claimant essentially indicated that his own unreasonable delay should be held against the employer.\r\n\r\nIf that was not enough to get it reversed, we had diligently attempted to obtain medical records from a non-compensation provider who had first treated the claimant since we first learned of their existence. Even though the claim was established by the WCLJ, we did not give up on those records, and those records actually stated there was no accident.  We alleged further prejudice because if the claimant had not delayed in reporting this accident the employer would have been able to review the records and would have been able to see that there was no accident that occurred.\r\n\r\nThe Board admitted the newly obtained evidence as the record was clear that the we had diligently and timely pursued it, and as it was clear they were very relevant.  The Board found that the employer was extremely prejudiced by the late notice, and further noted that if the claim had not been untimely filed the investigation would have demonstrated that there was no accident.','Employers Do Not Have to Prove Prejudice by Late Notice, but it Certainly Doesn’t Hurt To Do So!','','publish','closed','closed','','employers-do-not-have-to-prove-prejudice-by-late-notice-but-it-certainly-doesnt-hurt-to-do-so','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/05/employers-do-not-have-to-prove-prejudice-by-late-notice-but-it-certainly-doesnt-hurt-to-do-so/',0,'post','',0),(46344,25,'2021-05-03 00:00:00','2021-05-03 04:00:00','In the case of <u>Patrick Feeney, WCB G2489270</u>, we recently had a victory in front of Judge Snyder Haas on the issue of causal relationship of the claimant’s left shoulder and elbow injuries.  This is an established claim per an Amended Proposed Conciliation Decision for the left small finger involving a now 62-year-old man as a result of an injury which occurred on 12/27/19. Per his C-3.0, claimant was working as a Parks Utility Worker for the City of Buffalo when he was taking down the tailgate of his dump-truck while raining, slipped, and crushed fingers on his left hand.  The claimant appeared at Buffalo Surgery Center on 01/13/20 and underwent closed reduction and percutaneous pin stabilization of the left small finger middle phalanx shaft fracture with Dr. Callahan.  Six months following surgery, the claimant started reported pain and frozen shoulder in his left shoulder and elbow.  The claimant underwent serious open heart surgery before the pain in the shoulder and elbow began where he was in the hospital for an extended stay and was directed not to move his arms due to complications with his chest wall (surgery on 3/16/20).\r\n\r\nTestimony of the claimant as well as the treating physician and IME consultant were conducted.  The treating physician causally related the shoulder and elbow to the work accident, but also admitted on cross-examination that the injuries could also be caused by the claimant’s open heart surgery as the muscles involved in the shoulder injury align with the chest wall that had to be disturbed for the heart surgery.  The Law Judge noted in a reserved decision that the claimant proceeded on the theory of consequential injuries and not direct injuries.  The Judge noted that it was the claimant’s burden to establish a causal relationship of the consequential injury to the underlying injury and the work accident.  The Judge noted that the treating physician admitted that the injuries could have been caused by immobilization following heart surgery.  Therefore, the Law Judge disallowed the claim for consequential injuries.','The Claimant’s Burden: Proving the Causal Relationship of an Injury','','publish','closed','closed','','the-claimants-burden-proving-the-causal-relationship-of-an-injury','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/05/the-claimants-burden-proving-the-causal-relationship-of-an-injury/',0,'post','',0),(46345,25,'2021-04-26 00:00:00','2021-04-26 04:00:00','When we talk about surveillance, we’re usually talking about investigators staking out a claimant, taking videos, trying to catch them doing something outside their restrictions.  It’s an incredibly useful and important tool in our arsenal, especially when it comes to fraud.  But what about social media?\r\n\r\nWe live in a time when nearly everybody has at least one social media account, and most of us have several: Facebook, Instagram, TikTok, Twitter, the list goes on and grows by the day!  I was once involved in a case where we realized the claimant was working as a clown (no, I’m not kidding!) and although she tried to say it was therapeutic, her social media was full of posts advertising her various gigs and discussing her rates.  On another case, a claimant didn’t disclose that he was selling guns.  His social media was clean – but his wife’s Facebook posts were full of videos of the claimant and his family at gun shows, the claimant sitting behind a sales booth and demonstrating various guns for sale, sales advertisements, and directions to call the claimant’s cell phone to arrange appointments.  The judge was less than amused.\r\n\r\nWe also live in an era when a lot of people may have side gigs which don’t involve working at an actual physical location.  This matters because a claimant who isn’t observed leaving her house may still be engaging in fraudulent activities online, and we may be able to find that out by searching through her social media.  We’ve seen claimants trying to build up a client base for everything from scented melts to homemade items on Etsy.  In one case, the claimant posted about her new carpet-cleaning business on Facebook, trying to drum up interest.  We went digging and were able to turn up further posts about a business the claimant started, which led us to a business license in her name.  Our investigators then set up a sting operation and were able to film the claimant engaging in work activities.  We raised fraud.  The claimant tried to say that she hadn’t disclosed the business because she didn’t think of it as her own business because she had “opened the business for her family” and her brother did the actual cleaning work, but she admitted that the business license was in her name, she had bought tickets to go out of state for training, she had purchased the products and rented storage space to store them, the commercial vehicle was in her name, and she was the only person who could access the business bank accounts.  The judge implemented a lifetime ban.  So check social media – you never know what you’ll find!','Social Media and Fraud – You’d Be Surprised What People Post!','','publish','closed','closed','','social-media-and-fraud-youd-be-surprised-what-people-post','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/04/social-media-and-fraud-youd-be-surprised-what-people-post/',0,'post','',0),(46346,25,'2021-04-19 00:00:00','2021-04-19 04:00:00','We got a win disallowing a right shoulder claim in a 01/18/2020 established claim for the upper back and neck. The claimant’s C-3, filed approximately 3 weeks later, listed the right shoulder as a claimed injury. The right shoulder MRI showed bursitis and a partial tear of the supraspinatus and AC degenerative joint disease. The doctor requested surgery. Our IME disputed causal relationship, stating the claimant’s complaints were really radicular from the cervical spine.\r\n\r\nHowever, on cross-examination, we were able to elicit several highly damaging concessions from the treating provider, who admitted the findings on MRI could be age-related, and that they are common findings even in asymptomatic people. She admitted she could not relate findings on MRI, or the need for surgery, to the 01/18/2020 injury within a reasonable degree of medical certainty. She also admitted that reports closer in time to the date of injury are generally more accurate, that she never reviewed a 02/03/2020 report, finding no evidence of an injury to the right shoulder, and confirmed that would have been relevant in forming her opinion on causal relationship.\r\n\r\nIn defending the file, we did some research on the prevalence of partial tears and bursitis in shoulders, which helped in questioning the doctor on cross-examination. The takeaway here is to not throw in the towel even if there are positive findings on diagnostic imaging studies, and even when the claimed injury is reported relatively soon after the date of injury. Delve into what those findings mean, whether they can truly be distinguished as being related to trauma, and if those findings are prevalent in the general population. Happy Hunting!','Never Give In! Disallowance Win!','','publish','closed','closed','','never-give-in-disallowance-win','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/04/never-give-in-disallowance-win/',0,'post','',0),(46347,25,'2021-04-12 00:00:00','2021-04-12 04:00:00','We recently handled a claim in which we were attempting to get a finding of 50% degree of disability with regard to temporary rates in the record. Our IME had given an opinion of 50% based on her examination, but the treating physician had consistently opined 100%.   We deposed the treating provider, who testified that his recent examinations were done through telemedicine, and that he was able to view the claimant sufficiently  in order to make determinations for his exam report. We were ultimately able to get the treating physician to concede that  telemedicine visits are less credible than in- person visits,  and “compromised” for a variety of reasons – including that they are not “hands-on” with regard to testing for muscle spasm/tension during range of motion measurements, etc.\r\n\r\nAt the hearing which followed, the judge referenced our deposition transcript as “interesting,” and chose not to make any compromise on degree, but rather made a finding of 50% for all TR rates addressed.','An “Interesting” IME Development','','publish','closed','closed','','an-interesting-ime-development','','','2022-08-31 09:17:02','2022-08-31 13:17:02','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/04/an-interesting-ime-development/',0,'post','',0),(46348,25,'2021-04-05 00:00:00','2021-04-05 04:00:00','The claim was established for occupational disease to the bilateral hands and ankles and the claimant, a landscaper, was ultimately awarded a loss of use of 15% for the hands and 10% for the ankles.   In an attempt to invoke Section 44 apportionment, the carrier on risk obtained the claimant’s social security employment records for all employers over the course of 10+ years to alleviate their financial liability.  The Law Judge set the date of contracture based on medical records dating back to 2010, which allegedly reported the claimant’s first complaints of pain in his hands.\r\n\r\nAll employers since that date were then placed on notice, based on a rather speculative IME who could not apportion the occupational disease objectively, rather he was forming an opinion of “fairness” for all carriers.   The claimant testified to the pain in his bilateral wrists and ankles and that the pain didn’t <em>really </em>start until he was hardscaping and working full-time for the originally liable employer.   Moreover, he testified that he was using a jackhammer in 2010, had pain in the bilateral hands for a few days, and then did not have pain again for at least 6 years.  The Law Judge changed the date of contracture based on this new testimony, as it became clear that the 2010 complaints were not related.\r\n\r\nApportionment under Section 44 was not appropriate.  Notably, the same IME who “fairly” apportioned the injuries over the course of 10 years, also indicated he did not know why any loss of use was found for the hands.  In retrospect, the original carrier should have disputed the SLU instead of attempting to apportion.  Hindsight is 2020, not 44.','Section 44: Not Even a Portion of Liability For The Occupational Disease','','publish','closed','closed','','section-44-not-even-a-portion-of-liability-for-the-occupational-disease','','','2022-08-31 09:17:03','2022-08-31 13:17:03','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/04/section-44-not-even-a-portion-of-liability-for-the-occupational-disease/',0,'post','',0),(46350,25,'2021-03-15 00:00:00','2021-03-15 04:00:00','As we approach the one-year anniversary of the beginning of the COVID-19 pandemic, many employers still require their employees to work from home. However, most employers likely do not realize the implications this responsible decision can have on potential workers’ compensation claims.\r\n\r\nOn October 22, 2020, the Third Department overturned the Workers’ Compensation Board’s decision in <u>Matter of Matrix Absence Management</u>, 2019 NY Wrk Comp G1953353, in which the Board Panel held that the claimant did not suffer a compensable accident where his injuries did not arise out of and in the course of his employment. <u>Capraro v. Matrix Absence Management</u>, 187 A.D.3d 1395 (3d Dept., Oct. 22, 2020). In <u>Capraro</u>, the employer hired the claimant to work from home. Thereafter, the claimant requested authorization and reimbursement for office furniture to perform his job, but the employer denied the claimant’s requests. Nonetheless, the claimant ordered the furniture and had it delivered during business hours on a workday, where, on his lunch break, the claimant moved the furniture into his home. Unsurprisingly, the claimant injured himself while moving the furniture into his home office. In holding that the claimant did not suffer a compensable accident, the Board Panel instead ruled that injuries suffered while working from home are only compensable where the claimant was actually performing work (i.e., not away from his/her desk for any reason, including using the restroom).\r\n\r\nSubsequently, the Third Department reversed and remitted the matter to determine whether the claimant injured himself in the scope and course of his employment. In overturning the Board’s decision, the Third Department seemingly was not all that concerned that claimant was working from home, on his lunch break, and moving furniture into his home (i.e., office furniture that was not paid for, nor approved, by claimant’s employer). Instead, the Court relied on longstanding precedent that injuries sustained during brief breaks at work are generally still compensable, unless they were purely personal (i.e., not sufficiently work related). In fact, the Court indicated that it believed that the Board Panel ignored these basic principles in favor of a more stringent standard for employees working from home. That is, the Board Panel only would find claimant’s injuries compensable if they had occurred both during working hours and while performing work activities. Significantly, the Court stated that a consistent pattern of working from home makes the employee’s home a place of employment, equivalent to a traditional workspace.\r\n\r\nHere at LOMAD, we have developed an argument that the Third Department’s decision in <u>Capraro</u> should not apply to employees who work from home solely due to the COVID-19 pandemic. Much of the Third Department’s decision in <u>Capraro</u> hinges on the claimant’s <u>consistent pattern of working from home</u> converting the claimant’s home into the functional equivalent of the employer’s primary place of business. However, the COVID-19 pandemic <u>unexpectedly</u> required most employers to transition to having their employees work remotely, either all or in-part. Employers made this change both to: (a) comply with government directives and recommendations; and (b) ensure their employee’s safety. What is more, many employers either did, or hope to, return to the office as soon as it is safe to do so. Therefore, it would be unfair and inaccurate to characterize employees working from home due to the COVID-19 pandemic as engaged in a “consistent pattern of working from home.” Thus, the Board and the Third Department should not apply the broad standard in <u>Capraro</u>, in which employers face liability for virtually any injuries suffered by claimants working from home, so long as they occur during business hours.\r\n\r\nInstead, we contend that the Board should apply its decision in <u>Matter of Matrix Absence Management</u> to cases where claimants injure themselves while working from home due to the COVID-19 pandemic.  The pandemic placed employers in a difficult situation; requiring them to drastically alter their preferred business models to ensure both their employee’s and the community’s safety. Applying the Third Department’s standard in <u>Capraro</u> will unnecessarily increase the number of workers’ compensation claims that these very same employers will face, despite their best intentions. Conversely, the Board Panel’s underlying decision in <u>Mater of Matrix Absence Management</u> guarantees that employees can still pursue workers’ compensation claims for injuries suffered at work, but not for injuries suffered while, for example, emptying the dishwasher.\r\n\r\nAdditionally, we believe that our argument supports public policy. The Third Department’s decision in <u>Capraro</u> will lead to employers choosing to bring their employees back into the office, despite understandable trepidation in light of the ongoing concerns of community spread. Moreover, while some employers may choose to continue working remotely, they may institute various tracking technologies, such as keystroke trackers and webcams, to ensure that their employees stay at their workstation all day. This invasion of privacy benefits nobody and places an undue burden on employers and employees alike.\r\n\r\nLastly, the long-established case law, pertaining to whether an accident occurred in the scope and course of employment, is implicitly founded upon an understanding that employers maintain significant control over their offices. That is, employers provide ADA compliant facilities that take the needs of various employees into consideration. However, employers maintain no such control over their employees’ homes. What if the claimant’s stairs do not have railings? What happens when the claimant slips while doing laundry? Who is liable when the claimant burns himself making a grilled cheese sandwich? These questions highlight the absurdity of the Third Department’s decision in <u>Capraro</u> and, we believe, support our argument that the Board should apply its more stringent decision in <u>Matter of Matrix Absence Management</u> to claims for workers’ compensation benefits related to injuries suffered at home while working from home to avoid the spread of COVID-19.\r\n\r\nIf you find one (or twenty) of these claims coming your way . . . don’t get angry, <strong><u>GET M.A.D.</u></strong>','When Do Work From Home Accidents Occur in the Scope and Course of Employment?','','publish','closed','closed','','when-do-work-from-home-accidents-occur-in-the-scope-and-course-of-employment','','','2022-08-31 09:17:03','2022-08-31 13:17:03','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/03/when-do-work-from-home-accidents-occur-in-the-scope-and-course-of-employment/',0,'post','',0),(46351,25,'2021-03-08 00:00:00','2021-03-08 05:00:00','Listening to the news earlier today, I heard a talking-head explain she was a member of a law firm which she also described as a “Think Tank.”  Now, this lawyer’s firm had strong political ties as well as, I’m sure, a practice focused on cases with political import.  I wondered, however, why she took the time to identify her law firm as a Think Tank – all good law firms <em>should </em>be Think Tanks, right?\r\n\r\nBy its most basic definition, a Think Tank is a body of experts providing advice and ideas on a specific topic or topics – a law firm takes that concept a step further where we provide advice and ideas and, frequently, bring those to fruition in the courtroom, or in written agreements, or through negotiations.  Law Firms – lawyers generally – have been operating under that definition since before the term “Think Tank” was coined.  Maybe because Think Tanks are have evolved from a political ideology we don’t connect them to other professional ventures.  In reality, aren’t most of the large, well-established consulting practices Think Tanks?  Is it because we expect only advice, and not action, that law firms aren’t offered up in comparison?\r\n\r\nThe funny part is, the term “Think Tank” is packed with undertones of scholarship – the phrase literally includes the work “think”!  In that limited sense, Law Firms should be assessed by their clients in this way – does a  lawyer demonstrate the kind of thoughtfulness, wisdom and scholarship that is evoked by merely uttering the phrase “Think Tank.”\r\n\r\nRhetorical questions aside, the Think Tank concept throws light on what we feel is the most important part of a law practice:  expertise, advice and ideas.  LOMAD’s philosophy is embodied in the “5 C’s” – collaboration, current, creative, comprehensive and candor – elements that establish a deeper client relationship and better communication.  No lawyer can guarantee a result, but they can provide the very best, very latest and most thoughtful approach to practice available there is scholarship to law, and thinking critically is not just reserved for Think Tanks!','Thoughts on Thinking:  A Strange Title About Practicing Law','','publish','closed','closed','','thoughts-on-thinking-a-strange-title-about-practicing-law','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/03/thoughts-on-thinking-a-strange-title-about-practicing-law/',0,'post','',0),(46352,25,'2021-03-01 00:00:00','2021-03-01 05:00:00','By now, we’re all well aware that <u>Matter of Genduso v, New York City Dept. of Edu</u>., 164 A.D.3d 1509 (3d Dept. 2018), affirmed the principle that schedule awards are not given for particular injuries, but rather “for the residual physical and functional impairments”. <u>Matter of Empara v. New Rochelle Sch. Dist.</u>, 130 A.D.3d 1127, 1129, 12 N.Y.S.3d 391 [3d Dept. 2015], <em>lv denied</em> 26 N.Y.3d 911, 2015 WL 7288984 [2015]; <em>see</em> New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity § 1.5, at 10 [2012].\r\n\r\nIn <u>Genduso</u>, the Court elaborated that “consistent with this observation, neither the statute nor the Board’s guidelines lists the ankle or the knee as body parts lending themselves to separate SLU awards. Rather, impairments to these extremities are encompassed by awards for the loss of use of the leg (see Workers’ Compensation Law § 15[3][b]; New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity § 8, at 43 [2012]).” For that reason, The Court determined the Board properly deducted prior schedules for the claimant’s right knee and ankle to arrive at the claimant’s overall schedule loss of use of the right leg.\r\n\r\nThis case has been instrumental in forcing the Judges to account for <em>all</em> prior schedule loss of use awards to a particular extremity, rather than schedules for the same part of the extremity? But what about total joint replacements…?\r\n\r\nThe 2018 Guidelines for Determining Permanent Impairment, for example, state that for a “good result” following a total knee replacement, a claimant could expect a 35% schedule loss of use award. <em>See</em> Workers’ Compensation Guidelines for Determining Permanent Impairment § 7.5, at 44 (2017). Claimant’s attorney frequently argue that these provisions mean the claimant automatically get at least a 35% schedule just for undergoing a total knee replacement. The Guidelines after, all <em>say</em> 35% for a total knee replacement without regard to any other prior schedule. Surely, that means if there was a prior schedule considering other conditions and range of motion deficits, the 35% should be added to it.\r\n\r\nBut NO! DO NOT FALL FOR THAT TRAP! The Board Panel has specifically found that <u>Genduso</u> applies to total replacements. In <u>Matter of State University at Purchase</u>, 2020 NY Wrk. Comp. G07778237, the claimant was previously found to have a 17.5% schedule loss of use of the right leg. The claimant then had a total knee replacement, with his doctor opining a 40% schedule loss of use of the right leg. The Board affirmed the WCLJ’s determination that the claimant was entitled to an overall 22.5% increase in schedule loss of use.\r\n\r\nSo, if a claimant has prior schedule for an extremity and then undergoes a joint replacement, we still get to take credit for the prior schedule to arrive at the overall percentage allowed under the Guidelines. If anyone says otherwise, well, you know where to find us!','Genduso and Total Joint Replacement Schedules','','publish','closed','closed','','genduso-and-total-joint-replacement-schedules','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/03/genduso-and-total-joint-replacement-schedules/',0,'post','',0),(46367,25,'2021-02-15 00:00:00','2021-02-15 05:00:00','This was an established neck and back claim.  The issue for litigation was further causally related lost time.  The claimant sustained an unrelated motor vehicle accident in February involving various body sites, including her neck and back.\r\n\r\nAs we reviewed the file, we realized that the claimant’s medical evidence had changed dramatically after her accident.  Six days before the accident, the claimant’s treating doctor opined that she had a moderate lumbar disability, with mild to moderate motion deficits in her thoracic and low back.   After the accident, she was given a temporary total disability by her doctors.  Her providers testified that that after the accident, the claimant reported tenderness to her spine and her range of motion had decreased in both her neck and her low back.  During cross-examination, they conceded that she had injured her neck and re-injured her back in the MVA and admitted that the MVA had exacerbated her back injury.  They also confirmed that her MRI findings had changed following the MVA. They agreed that it would be difficult to attribute her current condition specifically to her Workers’ Compensation claim.\r\n\r\nWe argued that the claimant had suffered a new and unrelated accident, and that her subsequent disability was not causally related to her Workers’ Compensation claim.  In our memorandum, we cited <u>Employer: Wedgewood Care Center</u>.  In this case, the Board Panel upheld the Judge’s decision that the claimant suffered a new, intervening and superseding back injury as a result of an unrelated motor vehicle accident and found that the claimant did not have a further causally related disability to her back after that accident.  <u>Employer: Wedgewood Care Center</u>, 20401097 New York Work. Comp. Bd. 2009.\r\n\r\nThe Judge agreed with us and found that the claimant had no compensable disability after her MVA.  The judge also found the disputed bills in our favor on the grounds that the treatment was related to the MVA, not the claimant’s Workers’ Compensation claim.','No Further Causally Related Disability Due to Intervening Unrelated Accident','','publish','closed','closed','','no-further-causally-related-disability-due-to-intervening-unrelated-accident','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/02/no-further-causally-related-disability-due-to-intervening-unrelated-accident/',0,'post','',0),(46368,25,'2021-02-08 00:00:00','2021-02-08 05:00:00','One issue that I have come across several times in my legal career is whether or not a claimant qualifies as an independent contractor or an employee.  The Board Panel recently reviewed this issue in the case of <u>Matter of Clare Hayduscko</u>, 219 N.Y. Wrk. Comp. 40708094 (2019).  In that case, the claimant injured her right ankle when she slipped on a wet floor while working as a home health aid.  The claimant indicated that her employer was Clare Hayduscko, who was not insured on the date of accident.  Clare Hayduscko asserted that the claimant was not an employee, but rather an independent contractor.  The claimant was working helping to take care of Clare Hayduscko’s elderly mother 7 hours a day, 5 days a week.  The claimant testified that she originally took care of the elderly mother through her work with another agency, but then Clare Hayduscko approached the claimant and offered to pay her privately, which is what had been happening proceeding the date of accident.  The claimant performed the same duties when working for Ms. Hayduscko as she did when she worked for the agency.  She cooked, cleaned, did light laundry and helped with the elderly mother.  The board panel found that this qualified the claimant as a domestic worker.  The board panel found that the claimant was an employee of Clare Hayduscko and not an independent contractor.  Clare Hayduscko was assessed a fine for not maintaining workers’ compensation insurance.  The board panel noted that home health aids are considered to be domestic workers.','Independent Contractor or Employee','','publish','closed','closed','','independent-contractor-or-employee','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/02/independent-contractor-or-employee/',0,'post','',0),(46369,25,'2021-02-01 00:00:00','2021-02-01 05:00:00','This was a claim which was established in 2018, where despite substantial opportunity with her own medical providers, the claimant failed to report that she had returned to work after the accident of this file. The issue was aggressively litigated for fraud, as the claimant made numerous misrepresentations about her work to the WCLJ and her medical providers. The WCLJ correctly found the evidence submitted overwhelmingly demonstrated claimant was actively earning income and the claimant’s failure to disclose the employment barred the claimant from receiving any future indemnity benefits for the claim\r\n\r\nClaimant then filed an appeal of the decision. Notably, claimant’s counsel resubmitted to the Board Panel the same exact argument which was submitted to the WCLJ by memorandum of law. The Board affirmed the WCLJ’s Decision in a unanimous decision, making any request for review of the Board Panel decision by a Full Board Review discretionary. Of note, upon application for Full Board Review, claimant’s counsel submitted, yet again, the same exact argument which was submitted to both the WCLJ and Board Panel.\r\n\r\nWe argued that where no errors of fact or law are present in the decision below, discretionary Full Board review is must be denied. <em>See e.g. </em><u>Matter of Levine v. Health First</u>, 140 AD3d 1417 [2016].  We further argued the claimant merely suggested that the Board Panel and WCLJ drew incorrect or improper inferences from the largely undisputed facts of the claim and that such a position does not rise to the level of imputing an error of fact or law, and as such, Full Board Review in the matter must be denied. The Full Board ultimately decided that our position that no error of law or fact was made was accurate and denied the discretionary Full Board Review accordingly.','No Error of Law or Fact In An Application For Full Board Review','','publish','closed','closed','','no-error-of-law-or-fact-in-an-application-for-full-board-review','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/02/no-error-of-law-or-fact-in-an-application-for-full-board-review/',0,'post','',0),(46370,25,'2021-02-22 00:30:54','2021-02-22 05:30:54','In <u>Matter of Darcon Construction, Inc</u>., 2011 NY Wrk Comp. G0223167, the Board stated that the liable carrier in an occupational disease situation would be the employer’s general workers’ compensation carrier, thereby relieving carriers on wrap-up policies of liability. Following several cases in which the Board began to chip away at that decision, the Board expressly disavowed the case in <u>Matter of Pinnacle Industries II, LLC</u>, 2019 NY Wrk Comp G2020587. The Board stated,\r\n\r\n<em>In hearing loss cases, pursuant to Workers’ Compensation Law § 49-ee(1), “[t]he last employer in whose employment the employee was exposed to harmful noise … [is] liable for the payment of the total compensation due the employee for his loss of hearing caused by all of his employments in which he was exposed to harmful noise.”(<u>Woodruff v Goulds Pumps/ITT Indus</u>., 18 A.D.3d 1063 [2005]).</em>\r\n\r\n<em>Neither statute indicates that liability is contingent on the type of policy in effect on the date of disablement. Therefore, it is the opinion of the Board that liability in these occupational disease claims is appropriately placed on the carrier whose policy was in effect on the date of disablement, and whose coverage included the site at which the claimant was working on the disablement date, without distinction as to whether the policy in effect on that date was a wrap up policy. Pursuant to the foregoing finding, the Board expressly disavows its prior finding, in Matter of Darcon Construction Inc., to the extent that it found that wrap up policies do not cover occupational disease claims.</em>\r\n\r\nGood news for carriers with the general policy for employers, but bad news for wrap-up carriers. General policy carriers should now be looking for wrap-up policies that cover the claimant’s work location on every occupational disease claim filed. We’ve seen some wrap-up carriers argue that public policy would dictate that the Board should reverse this disavowal, as <u>Pinnacle Industries</u> requires them to take on unfunded liability because their policies would have been written with the understanding that they wouldn’t be liable for occupational diseases, and so they wouldn’t have charged premiums sufficient to cover this liability. We think that’s likely to go nowhere. A similar argument had already been shot down by the Court of Appeals when carriers tried to argue that closing the door on Section 25-a transfer of liability required them to assume unfunded liability. So far, the Board hasn’t taken that bait. But a prudent carrier should have counter-arguments at the ready to defeat such arguments. Namely, that the contract between the carrier and the insured consistently assumes the risk of legislative change and that liability for any benefit required of employers by the WCL ultimately rested with the carrier. At most, the contract became less profitably, and there’s always a risk of premiums being insufficient to cover a carrier’s liability, which is a risk inherent in the insurance market.\r\n\r\nIn other words, them’s the breaks!','Occupational Disease Claims after Matter of Pinnacle Industries II, LLC (2019 NY Wrk Comp G2020587)','','publish','closed','closed','','occupational-disease-claims-after-matter-of-pinnacle-industries-ii-llc-2019-ny-wrk-comp-g2020587','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/?p=46370',0,'post','',0),(46371,25,'2021-01-25 00:00:00','2021-01-25 05:00:00','The claimant injured his back working as a mechanic for a car dealership.\r\n\r\nIn November 2019 his wife’s niece requested on Facebook for recommendations for someone who could remodel her bathroom. The claimant’s wife responds that her husband, the claimant, is really good at it and would be happy to do it. He was receiving benefits at the total rate at the time, unknown to the niece.\r\n\r\nThe claimant’s wife is also currently in the process of purchasing the home they are living in from the niece, under some primitive land contract. The claimant’s wife told her niece that they are having some trouble paying the property taxes, and maybe the claimant could do the work to the bathroom if the niece paid the property taxes.\r\n\r\nThe niece paid the property taxes, and gives an additional $600 in cash to the claimant’s wife.\r\n\r\nThe claimant began work on the bathroom in December 2019 while receiving benefits at the total rate. New tiles were installed. A new vanity was installed. A wall was removed.  Late in December, the claimant and his wife split up. The claimant stopped working on the bathroom. The niece hired another contractor to finish the job.\r\n\r\nThe niece learned that the claimant was receiving Workers’ Compensation benefits when he was working on her bathroom. She contacted the State Insurance Fund fraud hotline. An investigator came to her home and took a statement. She explained the barter/payment situation.  Surveillance was placed on the claimant.\r\n\r\nWe are still waiting for the Judge’s decision on WCL 114-a, but confident in a finding of fraud based on the testimony of the niece, the investigator, and the claimant. The lesson: never underestimate the information that can be obtained from angry family (or former family) members.','Fraud in the Family – Claimant Doing Other Work while Receiving Comp Benefits','','publish','closed','closed','','fraud-in-the-family-claimant-doing-other-work-while-receiving-comp-benefits','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/01/fraud-in-the-family-claimant-doing-other-work-while-receiving-comp-benefits/',0,'post','',0),(46372,25,'2021-01-19 00:00:00','2021-01-19 05:00:00','<em>Matter of Jacobi </em>is a case that drastically altered how change in conditions for classified claimants are handled.  If you recall, for a period of time once a claimant was classified their rate didn’t change to total – even if their doctor said they were totally disabled, or had a surgery.  We all rejoiced, but the Third Department ruined our joy when they decided <em>Sanchez v Jacobi Medical Center </em>on February 20, 2020 and stated that claimants could be Temporarily Totally Disabled, Permanently Partially Disabled, and possibly all matter of in-between.\r\n\r\nThe Board however limited this holding by consistently finding that <em>Matter of Jacobi,</em> only stands for the proposition that a claimant who has been classified as permanently partially disabled is entitled to benefits at a temporary total disability rate following causally-related surgery.”  (<em>NYS Dept of Motor Vehicles, </em>50101459 NYS Wrk Comp 2020).  The Board specifically noted that <em>Jacobi</em> does not apply where the change is not due to surgery.  (<em>Fahs Construction Corp, </em>2020 NY Wrk Comp G0055809).  For example, an exacerbation or a fall does not entitle a claimant to a period of temporary total disability.\r\n\r\nUsing that same logic, the Board reversed a finding of total disability in <em>Employer: CVS.</em>  (49903741 NY Wrk Comp 2020).  In that claim the claimant was classified with a permanent partial disability, and subsequently underwent a surgery.  The Board found that following the initial period from the surgery, “the record contained insufficient evidence to show that the claimant has low back disability greater than that which he had at the time of the . . . PPD finding.  Specifically, neither physician has explained a basis under the Board’s Guidelines for Determining Permanent Impairment, with consideration to the claimant’s permanent disability at the time of the prior PPD finding as compared to the claimant’s present physical condition and disability.”  The Board specifically noted that evidence of this change was the “claimant’s burden.”  The Board noted that the claimant must provider evidence of the change in condition.  (<em>Id.</em>).\r\n\r\nThe Board has also consistently found post-Jacobi that an opinion of total from a doctor’s office post-surgery is meaningless when the doctor continuously opined that the claimant was totally disabled from all employment despite Board decisions to the contrary in the files.  For example, in <em>Ellicott Development, </em>the treating doctor always opined throughout the file that the claimant was totally disabled from all employment.  The Board discussed that the Reserved Decision finding that the uncontroverted opinion of total from that treating was not sufficient to keep the claimant at a total disability for more than a post-surgical period because it was not credible evidence of post-surgery total disability.  (2020 NY Wrk Com G0365096).\r\n\r\nSimilarly, in <em>Buffalo Psychiatric Center, </em>the Board found that for a brief period following surgery the claimant was totally disabled per the medical opinion, but that upon her return to symptomatic treatment the claimant had a less than total disability despite Dr. Roger’s continued <em>and uncontroverted </em>opinion that the claimant has a total disability.  (2020 NY Wrk Comp G0363881]).\r\n\r\nHere, the treating doctors opined a total disability throughout the period the claimant was classified and paid with a permanent partial disability.  The treating doctor’s office opined a total disability in 2014 and the issue of whether the claimant should be reclassified to a permanent total disability was litigated and decided in a 2015 Reserved Decision.  The opinion of the treating doctor of a total disability is not sufficient to continue the awards at total, because the treating doctor’s opinion that the claimant is permanently totally disabled is well-known and unchanged from  before the prior litigation.\r\n\r\nAccording to the claimant’s providers, he is actually better <em>after</em> the surgery than he was prior to the surgery when the 2015 Reserved Decision found there was no change in condition.  The Board has noted that when making this determination the opinion of the doctor, even if uncontroverted must be supported by substantial evidence.  (<em>Bluepoint Concrete, </em>2020 NY Wrk Comp 40604317).  In <em>Bluepoint,</em> the Board found that the “sum of substance of the report [did] not demonstrate a TTD” despite the doctor’s uncontroverted opinion of TTD.','How Change in Conditions for Classified Claimants Changed Drastically','','publish','closed','closed','','how-change-in-conditions-for-classified-claimants-changed-drastically','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/01/how-change-in-conditions-for-classified-claimants-changed-drastically/',0,'post','',0),(46373,25,'2021-01-11 00:00:00','2021-01-11 05:00:00','Recently, we have been successful in getting claims dismissed for failing to comply with WCL Section 18.  As part and parcel of those determinations, the Board has to make a determination that the employer was prejudiced by the late notice.  It is the claimant’s burden to demonstrate that the employer was not prejudiced.\r\n\r\nHowever, in an effort to show prejudice, it is always helpful to be able to demonstrate that normally there is an investigation that would be undertaken after a reported accident.  By being able to demonstrate that a proper investigation was not able to have taken place because of the late notice, we are in a better position to show prejudice.\r\n\r\nBased upon same, we recommend that investigations be completed after reports of an accident and that said investigations be made part of the normal process after each and every report of an accident.','Success with WCL Section 18','','publish','closed','closed','','success-with-wcl-section-18','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/01/success-with-wcl-section-18/',0,'post','',0),(46374,25,'2021-01-04 00:00:00','2021-01-04 05:00:00','What do you do when a claimant makes a claim for both noise-induced hearing loss AND traumatic hearing loss, under the theory of, “well, it’s gotta be one of those two,” and your Independent Medical Examination on causal relationship’s been precluded under §137? The answer is to get the both disallowed. These were, of course medically driven claims, but thankfully the claimant’s doctor testified that they were causally relating the loss to an incident rather than over time, so the noise-induced claim falls away. Disallowed because no doctor was opining causally related noise-induced hearing loss.\r\n\r\nAs for the traumatic hearing loss, the doctor didn’t review any medical reports besides the audiogram, and noted the statements about the claimant having a concussion were “absolutely” based on the claimant’s representations to them. The doctor also testified that, as this type of hearing loss would have precipitated rather early on relative to this type of injury and there isn’t anything she’d expect to cause a delay in the onset, and in our case there was no indicating of hearing loss for well over a year post accident. However, the nail in the coffin was that, of age, genetics, noise, and concussion, claimant’s doctor couldn’t “tease out which one of those things would have caused or combination of those things have led to this audiogram.”\r\n\r\nThe 3rd Department in Johnson v. Borg Warner, Inc, 2020 NY Slip OP 04897 (2020) held that “even an opinion ‘that it was ‘highly possible’ that the injury was causally related to work, falls short of the reasonable probability that is required to establish a causal relationship between the claimant’s employment and his injury.’” Here, not only did the symptom presentation not conform with what the doctor would expect from a trauma, she couldn’t testify that the trauma was even a contributing factor, which led to the Workers’ Compensation Law Judge disallowing this claim as well.\r\n\r\nIt’s cases like these which highlight that an Independent Medical Examination on causal relationship isn’t the end-all and be all of claims defense, and how clever cross-examination can be the key to success.','Doubling Down – 2 Hearing Loss Claims for the Same Claimant Denied on the Same Day','','publish','closed','closed','','doubling-down-2-hearing-loss-claims-for-the-same-claimant-denied-on-the-same-day','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2021/01/doubling-down-2-hearing-loss-claims-for-the-same-claimant-denied-on-the-same-day/',0,'post','',0),(46375,25,'2020-07-26 00:00:00','2020-07-26 04:00:00','This was a controverted claim by an employee for an alleged injury to the left knee. The issue for litigation which ultimately led to a disallowance of the claim was causal relationship. The claimant claimed to have injured his knee while working. The claimant did not seek treatment until 2 years following the alleged accident, and indicated that he did not seek treatment earlier because he avoids doctors, which raised suspicion for the type of injury being claimed and the typical pain and issues that injury would likely cause an individual. As we reviewed the case further, the history of the accident which was being provided to different physicians, as well as the history provided in claimant’s own testimony, began to create even more inconsistencies, as none of the histories appeared to be the same. In one report the claimant alleged he tripped over an object, in another he alleged he twisted his body when his knee was injured, in another he alleged he was squatting down when he injured his knee, and the inconsistencies continued from there. The diagnoses which claimant had were all diagnoses that could have been caused from other preexisting conditions or by other means, such as running or playing basketball, which were also included in reports from various physicians. The treating physician conceded in cross examination that he was only assuming the claimant’s condition was casually related due to the history provided, and then further conceded that there are many other explanations for which claimant could have these knee conditions which would NOT be work related. The IME doctor was able to maintain their position that the claim is not causally related. We highlighted the inconsistencies in both a memo of law and summations. The Judge ended up finding that the claimant had failed to demonstrate his complaints were causally related to a work injury noting the multiple inconsistencies in the claim. The Judge noted that due to the multiple inconsistencies the claimant’s treating doctor’s opinion on causal relationship was not credible. Additionally, the Judge noted that the fact that the claimant waited two years to treat was not credible. As such the claim was disallowed.','Successful Disallowance!','','publish','closed','closed','','successful-disallowance','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2020/07/successful-disallowance/',0,'post','',0),(46376,25,'2020-07-22 00:00:00','2020-07-22 04:00:00','In a Reserved Decision, Judge Balogun ruled that a claimant was not entitled to multiple SLU awards or loss of wage earning capacity as there was no permanency or schedule assignable for the injuries sustained. The claimant suffered work injuries to the neck, back and bilateral shoulders when they were rear-ended. The claimant had minimal lost time, no surgeries, little to no conservative treatment and was managed on over-the-counter medications, and was released back to work three days after the injuries. The Judge reasoned that there was sparse evidence of treatment or lost time on the claim and found the carrier’s IME more credible than the treating physician. We took the deep dive into the file to explore the claimant’s treatment pattern and modalities as well as lost time from work. In doing so we were able to layout for the Judge that the claimant did not have any attributable permanency or schedule loss of uses based on the detailed history outlined in our memorandum of law.','Another Win for The Law Offices of Melissa A. Day!','','publish','closed','closed','','another-win-for-the-law-offices-of-melissa-a-day','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2020/07/another-win-for-the-law-offices-of-melissa-a-day/',0,'post','',0),(46377,25,'2020-07-21 00:00:00','2020-07-21 04:00:00','By Reserved Decision, the presiding Worker’s Compensation Law Judge in the Watertown, NY hearing location found that no employer-employee relationship existed between the claimant and our client, or another individual who owns the property where the alleged injury occurred and for whom our client performs work. In this matter, the claimant filed a Workers’ Compensation claim against our client after alleging multiple injuries after she reportedly fell backwards in May 2019 while performing landscaping services on a specific property where our client was responsible for property management services. Our client did not maintain any Workers’ Compensation insurance as she operated a LLC with no employees under which she maintained her property management services. Our office was retained to defend the matter and immediately pursued an aggressive defense that there was no employee-employer relationship  – i.e. claimant was an independent contractor and not an employee.\r\n\r\nSeveral hearings occurred where multiple parties appeared to properly posture the claim before litigation began, including the owner of the property (our client’s employer) and the Uninsured Employers’ Fund. The parties then engaged in trials where the claimant, our client, and the property owner all testified in length. We also demanded that the claimant produce her tax documents from 2018 and 2019 in order to confirm her income from our client and the property owner – but more importantly from other individuals during the same time period she claimed “employment” by our client. We note that the claimant received a 1099 from our client in 2018 for her services, which included landscaping, gardening, and docent services at a museum operated on one of the properties managed by our client. Throughout lengthy testimony, the record was developed to reflect that while our client told the claimant what services to provide on a certain day, the claimant-maintained control over the manner in which to perform the work. Furthermore, the claimant would set her own hours (with no attendance requirements), use her personal vehicle to get to a specific properly, use mostly her own tools to perform the work, and then would submit an invoice for her services after the work was performed. Significantly, the record was established on the fact that the claimant performed similar services for others in 2018 and 2019 without needing permission to do so from our client or the property owner. The claimant also maintained her own business on the side during the relevant time periods developed in the record. The claimant was paid biweekly and no taxes were withheld from her payments.\r\n\r\nUltimately, the Judge relied upon the above record to find that no employer-employee relationship between the claimant and our client, or the property owner. The claim was disallowed.','A Win for The Law Offices of Melissa A. Day','','publish','closed','closed','','a-win-for-the-law-offices-of-melissa-a-day','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2020/07/a-win-for-the-law-offices-of-melissa-a-day/',0,'post','',0),(46378,25,'2020-06-29 00:00:00','2020-06-29 04:00:00','<strong><u>NEW PROCEDURE FOR RECOUPING OVERPAYMENTS AND EDI</u></strong>\r\nOn 6/10/20, the board published proposed changes to 12 NYCRR 300.22 and 300.23, “to reflect updates to the eClaims process that incorporate EDI version 3.1.”\r\n\r\nThe proposed changes address the procedure following a disability event when compensation controverted and when no controversy (12 NYCRR 300.22) and the Requirements relative to suspension or reduction of compensation benefits (12 NYCRR 300.23).\r\n\r\nThe change to the language in 12 NYCRR 300.22(f) is a change to the Second Reports of Injury that carriers, TPAs and employers file and specific to a situation where there is a resumption of benefits.\r\n\r\nIn 12 NYCRR 300.22(f)(2), the significant change is that if a payor is not making payments in a situation where payments would otherwise be due but for a credit or an overpayment on the file, the payor must indicate on the SROI, “the amount of such total amount claimed and the amount credited by the carrier, special fund or third-party administrator from the payment due.” Hence, where an employer or carrier takes the position that it has an overpayment on the file the SROI which relieves it of an otherwise ongoing obligation to make payments, the SROI must now indicate the amount of the overpayment and how much is being credited against the payment that is otherwise due.\r\n\r\nThe second substantial change to §300.22 addresses summary reports of payments. As was the case before the changes, the reports must include compensation payments, payments for medical care and wages pain instead of compensation where the claim is not disputed.\r\n\r\nThe new language of 12 NYCRR 300.22(f)(3)(i) requires a payor to file an Initial Summary Report:\r\n<ul>\r\n 	<li>Within 180 days of the date of the disability event or, if there is no known date of disability event, the date of the initial first report of injury; or,</li>\r\n 	<li>If the board directed continuing payments prior to 180 days of (A) herein, then within 180 days of such award. If the case is closed with no continuing payments, a summary is due within 180 days of closure. The initial summary shall be due within 180 days of the initial direction to continue payments or the initial closure.</li>\r\n</ul>\r\nHence, the Initial Summary Report must be filed within 6 months of the “disability event” or FROI, or within 6 months of a CCP if the award is before expiration of 6 months after the disability event or FROI, or within 6 months of the closure.\r\n\r\nSubsequent Summary Reports, of 12 NYCRR 300.22(f)(3)(ii), must be electronically filed:\r\n<ul>\r\n 	<li>Every 180 days from the initial award directing payment while such benefits continue.</li>\r\n 	<li>Additionally, following a reopening of the case in accordance with section 300.14 of this Part when payment(s) have been directed pursuant to such reopening, a summary report shall be due within 180 days of the subsequent closing of the case following direction of the Board; or if awards are continuing, every 180 days from the initial award directing payment while such benefits continue.</li>\r\n</ul>\r\nSubsequent Summary Reports must be filed within 6 months of an initial payment and every 6 months thereafter, or within 6 months of the closing of a case that is reopened pursuant to §300.14, or within 6 months of an award after a reopening under §300.14.\r\n\r\nThe proposed change to the requirements relative to suspension or reduction of compensation benefits, (12 NYCRR 300.23), is the addition of a new subsection which creates a regulatory framework for recouping an overpayment.\r\n\r\nThe new 12 NYCRR 300.23(g) provides:\r\n\r\nIn the event that the carrier, self-insured employer or third-party-administrator seeks to recover for an alleged overpayment of benefits to the claimant, such carrier, self-insured employer or third-party administrator must file notice to the Board in the format prescribed by the Chair that identifies the amount of such overpayment. Such prescribed notice shall be due as follows:\r\n<ul>\r\n 	<li>When a request for further action is submitted to the Board by the carrier, self-insured employer or third-party administrator, such prescribed notice requesting recovery of an overpayment shall be submitted on the same day as the request for further action.</li>\r\n 	<li>When a hearing is scheduled and the carrier, self- insured employer or third-party administrator will request recovery of an overpayment at the scheduled hearing, the carrier, self- insured employer or third-party administrator must file the prescribed notice identifying the amount of the overpayment no less than ten days before the date of the hearing. The Workers’ Compensation Law Judge will not consider any requests to direct recovery of an overpayment that are not timely made.</li>\r\n 	<li>When the Board directs recovery of an overpayment, the carrier, self- insured employer or third-party administrator must file the prescribed notice identifying the amount of the overpayment within ten days of such decision.</li>\r\n</ul>\r\nHence, in a situation where there is an overpayment, a Board promulgated form will have to be filed.\r\n\r\nIf the payor is requesting a hearing on the overpayment by filing a Request for Further Action, RFA-2, the overpayment notice must be submitted on the same day as the RFA.\r\n\r\nIf a payor is going to be requesting a recovery at a hearing, the notice identifying the amount of the overpayment must be filed at least 10 days prior to the hearing. Judges are directed not to address overpayments if the requisite notice is not filed at least 10 days prior to the hearing.\r\n\r\nLastly, if the Board directs recovery of an overpayment, the payor must file the notice identifying the amount of the overpayment within 10 days of the decision establishing the overpayment.\r\n\r\nThe proposed changes to the regulations are subject to a public comment period for 60 days after publication.  To submit comments email <a href=\"mailto:regulations@wcb.ny.gov\" target=\"_blank\" rel=\"noopener\">regulations@wcb.ny.gov</a>. The 60 day comment period will end on August 7, 2020.','Proposed Changes to §§300.22 and 300.23 – Overpayments','','publish','closed','closed','','proposed-changes-to-%c2%a7%c2%a7300-22-and-300-23-overpayments','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2020/06/proposed-changes-to-%c2%a7%c2%a7300-22-and-300-23-overpayments/',0,'post','',0),(46380,25,'2019-07-30 00:00:00','2019-07-30 04:00:00','<em>Buffalo Business First Leadership Trust is an Invitation-Only Community for Top Business Decision Makers in the Buffalo Niagara area.</em>\r\n\r\nAmherst, New York, July 29, 2019 — Melissa A. Day, Owner and Managing Attorney of The Law Offices of Melissa A. Day, PLLC, has been invited to join Buffalo Business First Leadership Trust, an exclusive community for influential business leaders, executives and entrepreneurs in the Buffalo Niagara area.\r\n\r\nMelissa was chosen for membership by the Buffalo Business First Leadership Trust Selection Committee due to her experience, leadership and influence in the local business landscape and beyond. Melissa began her practice defending workers’ compensation <a href=\"/about/melissa-a-day/\">insurance carriers</a> and self-insured employers since shortly after she was admitted to the Bar in 1997. She has over 20 years of general workers’ compensation defense experience, and has extensive appellate experience at various appellate divisions, including successfully arguing <a href=\"https://thelomad.com/getmad.today/wp-contentwww.nycourts.gov/reporter/3dseries/2007/2007_07498.htm\" target=\"_blank\" rel=\"noopener\">Burns v. Varialle, 9 N.Y.3d 207, 879 N.E.2d 140, 849 N.Y.S.2d 1.</a> Melissa is extremely well versed in workers’ compensation subrogation issues and general liability defense and also frequently lectures on and blogs about recent developments in Workers’ Compensation Law. She is the Founder, Owner and Moderator of the Linkedin Group, New York Workers’ Compensation Forum which currently boasts nearly 1,600 members. She is a member of several legal professional memberships, including, New York Self Insured Association, Buffalo Clams Association, Self-Insured Association of the Niagara Frontier and Notre Dame Club of Buffalo/Western NY. Melissa’s degrees are from Canisius College where she received a B.A. in English and from Notre Dame Law School where she earned her J.D.\r\n\r\n“Buffalo’s thriving business community is powered by leaders like Melissa,” said John Tebeau, publisher of Buffalo Business First. “We’re honored to be creating a space where the region’s business influencers come together to increase their impact on the community, build their businesses and connect with and strengthen one another.”\r\n\r\nAs an invited member, Melissa will contribute articles to the Buffalo Business First website and participate alongside fellow members in Expert Panels. She will connect and collaborate with a vetted network of local leaders in a members-only directory and a private forum on the group’s mobile app. Melissa will also benefit from leadership and business coaching, an Executive Profile on the Buffalo Business First website, select partner discounts and services and ongoing support from the community’s concierge team.\r\n\r\n<strong>In response to being accepted for membership, Melissa said, “I am grateful to be a member of Buffalo Business First Leadership Trust because I am a firm believer in the power of collective experience and collaborative intelligence and talents.  How exciting to find a place to learn from other entrepreneurs and share my own success – right in our backyard!”</strong>\r\n\r\nThe Buffalo Business First Leadership Trust team is honored to welcome Melissa A. Day to the community and looks forward to helping her elevate her personal brand, strengthen her circle of trusted advisors and position her to further impact the Buffalo Niagara business community and beyond.\r\n\r\n<strong>About Business Journals Leadership Trust</strong>\r\n\r\nBuffalo Business First Leadership Trust is a part of Business Journals Leadership Trust — a collective of invitation-only networks of influential business leaders, executives and entrepreneurs in your community. Membership is based on an application and selection committee review. Benefits include private online forums, the ability to publish insights on bizjournals.com, business and executive coaching and a dedicated concierge team. To learn more and find out if you qualify, visit trust.bizjournals.com.\r\n\r\nMarketing Department\r\nThe Law Offices of Melissa A. Day, PLLC\r\n636 North French Road\r\nSuite 3\r\nAmherst, New York 14228-1900\r\n[nap_phone id=\"LOCAL-REGULAR-NUMBER-1\"]\r\nWebsite: getMAD.today','Melissa A. Day, Esq. invited to join Buffalo Business First Leadership Trust','','publish','closed','closed','','melissa-a-day-esq-invited-to-join-buffalo-business-first-leadership-trust','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2019/07/melissa-a-day-esq-invited-to-join-buffalo-business-first-leadership-trust/',0,'post','',0),(46381,25,'2019-05-31 00:00:00','2019-05-31 04:00:00','In <u>Stone v. Saulsbury/Federal Signal</u>, the carrier argued that upon the claimant’s release from prison following conviction of unlawful manufacture of methamphetamine that the claimant violated WCL §114 – a by failing to report his illegal work activities. The judge found insufficient evidence to establish that the claimant performed any work or made any false statements regarding his work and the Board affirmed that decision.\r\n\r\nThe Third Department affirmed the board’s decision finding that because the definition of unlawful manufacture of methamphetamine doesn’t require the actual manufacture but only the intent to manufacture, that substantial evidence supported the Board’s determination that the claimant was not involved in any work activity and did not receive any type of remuneration. So apparently crime can pay.\r\n\r\n<u>Stone v. Saulsbury/Federal Signal</u>, <a href=\"https://thelomad.com/getmad.today/wp-contentdecisions.courts.state.ny.us/ad3/Decisions/2019/527345.pdf\" target=\"_blank\" rel=\"noopener\">https://thelomad.com/getmad.today/wp-contentdecisions.courts.state.ny.us/ad3/Decisions/2019/527345.pdf</a>','Claimant’s conviction of unlawful manufacture of methamphetamine does not amount to a violation under WCL 114-a.','','publish','closed','closed','','claimants-conviction-of-unlawful-manufacture-of-methamphetamine-does-not-amount-to-a-violation-under-wcl-114-a','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2019/05/claimants-conviction-of-unlawful-manufacture-of-methamphetamine-does-not-amount-to-a-violation-under-wcl-114-a/',0,'post','',0),(46383,25,'2019-05-31 00:00:00','2019-05-31 04:00:00','Amendments to law in 2017, which relieved a PPD claimant from demonstrating LMA  after classification are retroactive if the employee is found attached at the time permanency is established, applies retroactively to a claimant classified with a PPD prior to the amendment if the claimant involuntarily withdrew from the labor market (i.e. – retired due to disability), <em>See </em><u>O’Donnell v. Erie County</u>, 162 AD3d 1280 (3<sup>rd</sup> Dept. 2018), but does not apply retroactively to relieve a claimant who was found to be unattached to the labor market from having to demonstrate attachment to the labor market to be entitled to benefits.\r\n\r\n<u>Scott v. Visiting Nurses Home Care, </u><a href=\"https://thelomad.com/getmad.today/wp-contentdecisions.courts.state.ny.us/ad3/Decisions/2019/527808.pdf\" target=\"_blank\" rel=\"noopener\">https://thelomad.com/getmad.today/wp-contentdecisions.courts.state.ny.us/ad3/Decisions/2019/527808.pdf</a>.','Amendments to 2017 not retroactive if PPD claimant was not attached to labor market','','publish','closed','closed','','amendments-to-2017-not-retroactive-if-ppd-claimant-was-not-attached-to-labor-market','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2019/05/amendments-to-2017-not-retroactive-if-ppd-claimant-was-not-attached-to-labor-market/',0,'post','',0),(46384,25,'2019-05-28 00:00:00','2019-05-28 04:00:00','It must have been 12<sup>th</sup> grade where I first became acquainted with incontinence. And no, it was through studying Dante’s Inferno and not some kind of bathroom emergency; back in the day, incontinence used to refer to the inability to control one’s self. A lack of self-restraint. The 2<sup>nd</sup> through 5<sup>th</sup> circles were thus populated: the panderers and seducers, the gluttons, the greedy and the spendthrifts, the angry and the sullen. It wasn’t until years later that I learned that polite euphemism had overtaken the original definition, such that many people only knew the term incontinence in the context of adult diapers.\r\n\r\nIn Workers’ Compensation, it’s a fact of life that some patients experience damage to the spinal cord, either as a result of their initial injury, an age-based progression thereof, or as a consequence of spinal surgery. As a result, some claimants end up with either diminished or outright loss of control of their bladder and/or bowel. While some claimant’s attorneys believe having such a consequential problem is a golden ticket to a total disability, and incontinence is clearly an aggravating factor, whether the claimant would have a total disability really depends on the other circumstances surrounding the claim.\r\n\r\nIn <u>Aspen Dental</u>, (WCB# G0484701, June 9, 2015), the Board didn’t do much beyond look at the claimant’s severity ranking (G) and the diagnosis of cauda equina syndrome with associated bladder and bowel incontinence before finding a permanent total disability. It probable helped that claimant’s doctor opined it would be reasonable for the claimant not to return to the workforce given her orthopedic, bladder, and bowel impairments, but the Board didn’t even look at the claimant’s age, let along any other mitigating factor despite containing them in the decision.\r\n\r\nOf the 9 Board Panel Decisions since then which provided an opinion on LWEC/TID, 6 cases found a partial disability, 2 found a total disability, and 1 found TID. Citing our sources, the cases indicating a less than 100% LWEC were: <u>Thomas J. Keohane, DDS</u>, (WCB# G0483822, February 26, 2016), <u>School Settlement</u>, (WCB# G0383561, June 2, 2016), <u>The Resource Center</u>, (WCB# 80803428, July 12, 2016), <u>NYC Housing Authority/NYCHA</u>, (WCB# G0305567, August 11, 2016), <u>Starwod Hotels &amp; Resorts</u>, (WCB# G0964480, February 14, 2017), and <u>Episcopal Health Services Inc</u>, (WCB# G0669626, May 24, 2017). In <u>School Settlement</u>, <em>supra</em>, the finding was in spite of the claimant having a bout of urinary incontinence while sitting on the examination table at the permanency exam.\r\n\r\nIn the first case the claimant was found to have a total disability, <u>Mabsota</u>, (WCB# G0304748, April 3, 2017), the claimant was previously classified with a 65% LWEC. A claim for consequential depression was thereafter made, and the carrier asked for an opinion on permanency in addition to causal relationship; their IME gave up a total disability, and neither the WCL or Board would let them wiggle out of it.\r\n\r\nThe second of the PTD cases is <u>Nova Development, Inc.</u>, (WCB# 40604815, November 4, 2016). The claim was established for the back, a right inguinal hernia, consequential neurogenic bladder, urinary incontinence, along with consequential bilateral wrist and hand injuries. What sunk the carrier here was taking the deposition of the claimant’s pain management doctor, who didn’t even file a C-4.3, and opined a total disability on deposition. The Board found that doctor to be most credible because he saw the claimant in the context of all of his injuries. Also, as there was credible medical of a total disability, the Board didn’t have to take vocational factors into consideration.\r\n\r\nIn <u>Collins Building Services Inc</u>, (WCB# G1025058, April 13, 2018), the Board reiterated its prior holdings that a finding of a permanent total disability must be made on the medical evidence alone, and while the claimant had significant problems, he is physically capable of sitting and standing, although for limited periods of time, and can drive for limited periods of time as part of work duties. Turning to the claimant’s LWEC, the 66 year old man was born in Ecuador, where he didn’t finish high school, had limited English proficiency, and didn’t know how to use a computer, all on top of his urinary incontinence. In light of such aggravating circumstances, it’s little wonder a TID finding was made.\r\n\r\nThe most surprising thing from my review of these cases, beyond the low percentage resulting in a PTD or TID finding, was that strategic mishaps resulted in twice the number of findings as otherwise. To me, this is a good thing. It means that if we’re smart about the way we handle our cases, our chances of a total finding at permanency drops from 1:3 to 1:9 even when faced with a claimant with bladder/bowel issues. So play smart and don’t get angry, get MAD.','LWEC & Incontinence','','publish','closed','closed','','lwec-incontinence','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2019/05/lwec-incontinence/',0,'post','',0),(46385,25,'2019-05-21 00:00:00','2019-05-21 04:00:00','I made the mistake of seeing Avengers Endgame twice in a week before doing a major memo involving an LWEC determination (spoiler alert) and had a crazy idea to first map and then analyze the decisional framework that is LWEC. The entire point of stare decisis is so that cases aren’t decided based on an arbitrary interpretation of the statute/regulation each time, but that prior decisions are used to guide future determinations. There are well over a thousand decisions out there within the past 5 years which make findings on LWEC and only a handful are ever used again.\r\n\r\nBut I’m going to see them all, record the relevant information the Board used to reach its conclusion on LWEC, and try to develop a useful tool to help navigate the chaos that is LWEC. There was also the hope of finding some helpful case law around the way, but as I’m starting in 2015 (so there will only be new cases on one side of the analysis) subsequent confirmation will be required.\r\n\r\nOne such tidbit is from the week of 05/25/2015, indicating that Severity E &amp; F for the neck and E for the lumbar spine are all considered in the moderate impairment range. <u>Staples Inc</u> (WCB# G0349242, 05/28/2015), <u>Mcquay</u> (WCB# G0063261, 05/28/2015) &amp; <u>NYCHA</u> (WCB# 00809250, 05/29/2015).\r\n\r\nBe sure to check back for further updates!','A New Quest Begins','','publish','closed','closed','','a-new-quest-begins','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2019/05/a-new-quest-begins/',0,'post','',0),(46386,25,'2018-12-17 00:00:00','2018-12-17 05:00:00','On November 23, 2018, Clarissa M. Rodriguez, Chair of the WCB issued Subject 046-1119, <a href=\"https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/SubjectNos/sn046_1119.jsp\" target=\"_blank\" rel=\"noopener\">https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/SubjectNos/sn046_1119.jsp</a>, touting the Board’s dubious accomplishment in having reduced the appeals inventory to 3,297 applications awaiting a determination and brandishing a statistic that 92% were decided in less than 6 months.\r\n\r\nIn my opinion, and I believe many practitioners would agree with me, the Board primarily accomplished this feat by implementing drastic and Draconian rules providing it with the fodder to deny the parties’ rights to be heard. Over the past year the Board used this cudgel to deny an entire generation of appeals on the back of due process.  It is my understanding that challenges to some of these denials will be adjudicated at the Appellate Division and at least one Commissioner of the Board agrees that when the appeal involves a substantial property right and a minor technical problem, the Board should not elevate form over substance and deny the appeal. We applaud that Commissioner.\r\n\r\nAs the dust settles the Board has changed the RB-89 and RB-89.1 and instructions, AGAIN, to “aid parties” and “eliminate any possible confusion.” It also issued 15 pages of guidance to provide “additional support” to the all parties in complying with the procedures. Undoubtedly, failure to use the new forms will again lead to the denial of appeals filed by the unwary after 2/1/19 and potentially permit the Board to bully its way to its stated goal of deciding all appeals on average in less than 6 months, for the time being.\r\n\r\nHowever, as the parties adjust and bring their procedures into compliance with the Board’s highly technical and persnickety demands, my colleagues and I see no reason that the same number of appeals which the Board must address will increase again unless the Board made changes and improved its ability to decide appeals. If it has not, presumably another backlog will develop.\r\n\r\nAlternatively, the Board could keep changing the rules of the game <em>ad infinitum</em> to continue to avoid addressing the merits of many legitimate challenges and to keep its appeal inventory low. We sincerely hope that this is not the plan.\r\n\r\nMAD 12/17/18','Appeals Inventory and Forms','','publish','closed','closed','','appeals-inventory-and-forms','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2018/12/appeals-inventory-and-forms/',0,'post','',0),(46387,25,'2018-12-17 00:00:00','2018-12-17 05:00:00','The New York State Workers Compensation Board issued updated Workers Compensation Guidelines for Determining Impairment on November 22, 2017. The Board also issued Schedule Loss of Use Frequently Asked Questions on 10/04/18 which can be found on the NYS Workers Compensation Board Website.\r\n\r\nThe 2018 Impairment Guidelines are to be used regardless of the date of injury. If the schedule loss of use examination was done prior to 01/01/18 the 2012 Impairment Guidelines should be used. For Permanency evaluations done after 01/01/18 the 2018 Impairment Guidelines must be used. Even if the claimant was awarded a SLU for the same body part using the 2012 Impairment Guidelines, when a new SLU evaluation is done after 01/01/18 on that same site the doctor must use the2018 Guidelines. If the doctor uses the 2012 guidelines for a permanency exam after 01/01/18, if not challenged, they will be considered. However, the report may be afforded little or no evidentiary value.\r\n\r\nThe doctor is to provide the schedule loss of use opinion only for the work-related injury. If the claimant’s range of motion is limited by a nonoccupational condition such as obesity the doctor should offer an opinion as to the functional loss and resulting SLU that is causally related to the work injury and not other factors. Where a claimant has preexisting osteoarthritis, which is exacerbated by a work injury, the measurement of the contralateral extremity should be used as a baseline whenever possible. Reductions in range of motion for the non-injured contralateral extremity are deducted from the loss of range of motion for the injured extremity. The attending doctor should report the range of motion measurement findings on the contralateral side at the time of the first examination and report those measurements on the C-4 form.\r\n\r\nPer the 2018 Impairment Guidelines the doctor must list range of motion finding for the injured site and range of motion findings for the contralateral side.  The doctor is required to take three measurements for each range of motion and the doctor is to use the highest measurement when calculating the SLU. The three measurements are to include the injured site and the contralateral side. The WCB will not bar reports that do not contain the range of motion findings consistent with the guidelines. However, if the doctor does not provide the correct documentation per the Impairment Guidelines to support his opinion. They will be given little or no evidentiary value.\r\n\r\nThe doctor is required to document the range of motion findings on the contralateral side however if there was prior injury to the contralateral side which affects the range of motion the doctor should use the normal range of motion as indicated in the guidelines as a baseline. If the range of motion on the injured part is limited by other factors such as obesity the doctor should evaluate using his or her judgement and offer an opinion on functional loss and resulting SLU that are causally related to the work injury.\r\n\r\nThe doctors are required to use goniometers when taking range of motion measurements (2018 Impairment Guidelines Section 1.3, p.7). The active range of motion must be used not passive.\r\n\r\nUnder the 2018 Impairment Guidelines SLU’s are based on permanent impairments involving anatomical or function loss, not on the mechanism of injury, absent a Special Consideration in the guidelines.\r\n\r\nRegarding the shoulder if a deficit of both flexion (forward elevation) and abduction are documented, the greater of the two deficits must be utilized, not both. However, if both range of motions are moderate or higher, and the measures are within 10 degrees of each other up to10% may be added to the overall schedule loss of use not to exceed ankylosis. The guidelines allow for an added 10 to 15% for marked defects of rotation and muscle atrophy. In order to add the 10-15% there must be defects in both rotation and muscle atrophy. Internal and external rotation benefits are only considered when no other ROM exists.\r\n\r\nIf the claimant complains of severe pain on the first ROM measurement the examiner should use his or her medical judgement and if reasonable ask the claimant to repeat the maneuver that is acceptable and document the evaluation limitations in detail. The examiner should not push the patient beyond tolerable limits.\r\n\r\nIf the patient was previously awarded a SLU based on the earlier guidelines and subsequently sufferers a new injury, the examining physician should evaluate based on the 2018 guidelines to determine the SLU that resulted from the relevant work-related injury as opposed to other causes. To obtain an increase over the SLU previously awarded and based on the earlier guidelines there must be objective medical evidence that the claimant’s anatomical or functional loss (e.g. ROM) has increased since the prior SLU and the evaluation under the 2018 Guidelines results in a higher SLU than the one previously awarded. No increased SLU should be awarded if claimant’s anatomical or functional loss is substantially the same as it was at the time of the prior SLU, even if an assessment pursuant to the 2018 guidelines would result in a higher SLU percentage.\r\n\r\nIf the claimant has surgery and achieves full range of motion and strength and there is no SLU unless a specific special consideration applies. If the claimant has an injury for an extremity not covered by the guidelines which results in loss of range of motion to an adjacent joint the Guidelines for the affected joint should be consulted. Multiple range of motion deficits when added together should not exceed the total SLU for the affected body site and should be reduced to the total SLU of the body part.\r\n\r\nWith respect to apportionment the examining physician should offer an opinion of the SLU that resulted from the relevant work-related injury, as opposed to other causes. This can be done by using the contralateral side as a baseline and by reviewing reports concerning prior injuries to the same site.\r\n\r\nIf both schedule and non-schedule body parts are involved the IME doctor can give both a SLU opinion and a non-schedule opinion in the same report. The doctor should fill out both the IME-4 A and B forms. If the claimant is non-compliant with ROM testing the examiner should note this belief in there port and may decline to offer a SLU opinion if claimant’s failure to cooperate makes doing so impossible. The Board has previously found that when a claimant is uncooperative or clearly not giving a full effort during the IME evaluation that this is tantamount to refusing to appear for an IME and as a result no schedule loss of use could be made until the claimant fully cooperates with an IME, Montefiore Medical Center, G1027185 (September 19, 2016).\r\n\r\nIt is not acceptable for a nurse practitioner and presumably a physician’s assistant to file out the permanency form C4.3 even if countersigned by the doctor. The permanency evaluation must be conducted by the physician.\r\n\r\nThe claimant’s attending physician is required to use a form C4.3 for a SLU opinion. The provider who has treated the injury is expected to conduct the SLU exam. A treating physician can submit a narrative rather than a C4.3 as long as it contains all of the information requested in the form. If the claimant obtains an IME to comment on SLU, the doctor must use form IME-4 (the report is subject to the provisions of Section 137). For an IME the evaluator must fill out the IME-4 cover sheet along with the appropriate listed attachments for either schedule loss of use and/or non-schedule permanent partial disability. All three elements (form IME-4 with attachments and narrative) are required for a complete IME report.\r\n\r\nThe Workers Compensation Board has also promulgated new forms for permanency evaluations (See Subject No. 046-1067A 05/16/18). The form C4.3 has been revised to include attachments A and B. Attachment A requires the examiner to provide three range of motion measurement, contralateral range of motion, if the contralateral is applicable and if not, the examiner needs to explain why, special considerations and impairment percentages for all affected body sites.\r\n\r\nAttachment B of the new form C4.3 is used for all body parts for which a non-schedule award (classification) is appropriate. The examiner should use both attachment A and B when evaluating a patient with injuries that involve both schedule and non-schedule body parts and/or conditions.\r\n\r\nThe form IME-4 has been modified to capture information on the duration of the exam and medical documentation review. Per the SLU FAQS failure to note the start and end time at present will not result in the report being barred.\r\n\r\nThe IME-5 has been changed to capture the IME entity that is scheduling the exam.\r\n\r\nThe Board Issued an Announcement regarding implementation of the new forms on05/22/18\r\n\r\n<strong>Implementation of Forms Associated with SLU Evaluations</strong>\r\n\r\nDate: May 22, 2018\r\n\r\nThe Board has received a number of inquiries associated with <a href=\"https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/SubjectNos/sn046_1067.jsp\" target=\"_blank\" rel=\"noopener\">Subject Number 046-1067</a>, specifically related to the timing of the implementation of forms associated with Schedule Loss of Use evaluations.\r\n\r\nWe understand that the new forms may take sometime to implement due to programming requirements. However, the guidelines are not new, and the associated requirements were released and effective 1/1/18. Until such time that users can get the new forms programmed into their systems, all required elements should be captured on the existing forms and/or included in the submitted narrative.\r\n\r\nAs you are aware, new paper forms are available for use now and have been posted on the Board’s website. The revised electronic C4.3 should be available by mid-July. We ask that all users totally transition to and utilize the new forms by mid-July. Until that time no forms will be precluded as long as all the required elements are either included on the forms and/or incorporated into the narrative.\r\n\r\nReview of the Boards announcement does not give a solid cutoff date but does indicate that all users transition to and utilize the new forms by mid-July. It has now been over six months since the new forms were issued by the WCB and at this point I think it is safe to say that you can make the argument that a permanency evaluation may be precluded if the provider (IME or attending physician) used the old permanency forms.\r\n\r\nThe carrier should carefully evaluate the ROM findings and determine whether the provider has included all measurement as required under the 2018 Impairment Guidelines and whether the provider properly calculated the SLU opinion based on the 2018 Impairment Guidelines. If the Board issues an EC-81.7 or you receive a doctor’s report which does not properly use the 2018 guidelines you can object to the need to obtain an IME or schedule depositions.\r\n\r\nThe carrier should investigate whether the claimant had prior injuries or conditions that may affect in range of motion. Review the post-employment physical or records from the primary care physician.  The carrier should investigate whether the claimant had any prior work-related or non-work-related injuries/conditions and or SLU’s to the injured extremity. This information should be provided to your IME.\r\n\r\nThere is more information in the Workers Compensation Boards Frequently Asked Questions and you should review those as the FAQS as they are quite helpful. This is only a brief outline of the information contained therein.','Review of Workers Compensation Board Schedule Loss of Use Frequently Asked Questions and New Permanency Forms','','publish','closed','closed','','review-of-workers-compensation-board-schedule-loss-of-use-frequently-asked-questions-and-new-permanency-forms','','','2022-08-31 09:17:21','2022-08-31 13:17:21','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2018/12/review-of-workers-compensation-board-schedule-loss-of-use-frequently-asked-questions-and-new-permanency-forms/',0,'post','',0),(46388,25,'2018-05-25 00:00:00','2018-05-25 04:00:00','Justice delayed is not always justice denied; and waiting can make it more satisfying than you might imagine.  The Law Offices of Melissa Day won a reversal of the Board before the Appellate Division, Third Department on March 28, 2018 in Matter of Yonkosky v. Town of Hamburg, 2018 NY Slip Op 00586, 158 AD3d 860 (3d Dept. 2018) which may be viewed in its entirety here:  <a href=\"https://thelomad.com/getmad.today/wp-contentwww.nycourts.gov/reporter/3dseries/2018/2018_00586.htm\" target=\"_blank\" rel=\"noopener\">https://thelomad.com/getmad.today/wp-contentwww.nycourts.gov/reporter/3dseries/2018/2018_00586.htm</a>.\r\n\r\nClaimant, a seasonal summer worker with the Town’s Highway Department was, apparently, injured while lifting wheelbarrow loads of asphalt and suffered a “rare” rotator cuff tear – rare because the claimant is a young, healthy male.  The claimant treated for this condition, but never reported it to the employer, and even lost time from his employment; and when presenting his doctor’s excuse, did not inform the Town his lost time was related to a work-injury.  Whether the lost time and treatment were, in fact, related to the claimant’s employment could be debated, but the claimant took the position at trial that it was related.  The claimant also sought to prove that, although the condition had allegedly resolved, and then resurfaced months later during a game of basketball with friends, his injury was in the nature of an occupational disease, thus smoothing over the various breaks in temporal causation, and curing a potentially fatal notice defect as the claimant did not notify the Town of his work related injury until at least seven months after the accident occurred, when he filed his C-3 with the Workers’ Compensation Board.  This litigation strategy was certainly thoughtful, but it was equally transparent where the claimant’s own physician could not clearly ascribe causation to a disease process, or even repetitive stress when under intense cross-examination.\r\n\r\nThe WCLJ, and Board, bit at this quite obvious charade, and in both decisions rendered by the Board demonstrated that they didn’t even bother to consider the Town’s argument that the claimant, having reported the case as an accident on his C-3, described an accident to his physician, and testified under oath to a specific happening – and accident.\r\n\r\nThe Third Department, the first Court to actually articulate any analysis on the question of “accident versus OD” agreed with the Town that the claimant’s effort to characterize the claim as an OD was not supported by the record, and that the injuries sustained by the claimant, even assuming they were the result of work activity, supported the conclusion that they were not the result of a disease process, or even repetitive stress, and could not be characterized as an occupational disease, but rather the result of an obvious accident.\r\n\r\nIt was a long haul, but dogged determination and confidence between client and counsel can win the day.  It  is worth noting as a practice point that under the WCL, the Board is obligated to reimburse employers/carriers/SIEs for claims that are, like this one,  established by the Board, but later quashed by higher judicial review since WCL Sec. 23 does not permit a stay on benefits during the pendency of an appeal to the Third Department.   Closing this post, we wonder how many poor decisions rendered by the WCB, decisions begging for higher appellate review, go un-appealed to the Third Department, owing to the time and cost involved.  How many of these poor decisions, by virtue of remaining unchallenged, and thus wrongly reinforced as “settled precedent.”','You’re claiming what?!?','','publish','closed','closed','','youre-claiming-what','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2018/05/youre-claiming-what/',0,'post','',0),(46413,25,'2018-05-23 00:00:00','2018-05-23 04:00:00','Here are some questions that were answered, and some that were not, during the Board’s presentation on the new SLU Guidelines.\r\n\r\n<strong><u>Question:</u></strong>\r\n\r\nPlease clarify – should claimant’s attorneys and carriers provide both of the new C-4.3 forms to doctors to avoid an appearance that they are suggesting a permanency outcome to the medical provider?\r\n\r\n<strong><u>Answer:</u></strong>\r\n\r\nDr. Sobol-Berger suggested that this was not necessary.  However, this would make me nervous.  I think all forms should be provided to avoid the appearance that we are suggesting an outcome.\r\n\r\n<strong><u>Question:</u></strong>\r\n\r\nIf a claim includes injuries for both schedulable and non-schedulable injuries, which forms should the doctor use?\r\n\r\n<strong><u>Answer:</u></strong>\r\n\r\nDr. Sobol-Berger said that both forms should be used.  It is up to the judge to take information regarding the SLU injury and the classifiiable injury and make rulings on that information (presumable about LWEC).\r\n\r\n<strong><u>Question:</u></strong>\r\n\r\nIf a medical record provides the ROM of a contralateral side which is not “available” at the time of the permanency evaluation, i.e., because of recent non-causally related injury or surgery, can a previous measurement of the ROM of the contralateral side, or the injured side, be used as a baseline?\r\n\r\n<strong><u>Answer:</u></strong>\r\n\r\nThis question was not answered.\r\n\r\n<strong><u>Question:</u></strong>\r\n\r\nThe Board has held in Board Panel decisions that suggesting to an IME doctor in a cover letter that permanency should result in a SLU is an improper attempt to influence the doctor’s opinion on permanency.  Hence wouldn’t providing a doctor with only the SLU forms be an improper attempt to influence the doctor’s opinion?  The doctor could conclude that an extremity condition should be classified?\r\n\r\n<strong><u>Answer:</u></strong>\r\n\r\nThis question was not answered.\r\n\r\n<strong><u>Question:</u></strong>\r\n\r\nIf a claimant has multiple injuries to extremities from one claim should the doctors use a SLU form for each schedulable body part?\r\n\r\n<strong><u>Answer:</u></strong>\r\n\r\nDr. Sobol-Berger noted that Part B to the C-4.3 has room for multiple extremities and SLU values.\r\n\r\n<strong><u>Question:</u></strong>\r\n\r\nIf a doctor reviews the permanent impairment guidelines and decides that the decision should be classifiable instead of scheduled should he or she change forms?\r\n\r\n<strong><u>Answer:</u></strong>\r\n\r\nThis question was not answered.\r\n\r\n<strong><u>Question:</u></strong>\r\n\r\nHow are doctors supposed to assess the severity of an impairment to an extremity which he or she decides should be classifiable instead of scheduable?\r\n\r\n<strong><u>Answer:</u></strong>\r\n\r\nThis question was not answered.','New SLU Guidelines Presentation by the Board','','publish','closed','closed','','new-slu-guidelines-presentation-by-the-board','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2018/05/new-slu-guidelines-presentation-by-the-board/',0,'post','',0),(46414,25,'2018-05-23 00:00:00','2018-05-23 04:00:00','Plaintiffs in the <a href=\"https://thelomad.com/getmad.today/wp-contentwww.supremecourt.gov/DocketPDF/17/17-1179/25081/20171226172748924_Liberty%20Mutual%20-%20APPENDIX%20-%20cert.%20extension%20application.pdf\" target=\"_blank\" rel=\"noopener\"><em>American Economy Insurance Company</em></a> case have filed a <a href=\"https://thelomad.com/getmad.today/wp-contentwww.supremecourt.gov/DocketPDF/17/17-1179/36170/20180221174511203_17-____%20--%20AEIC%20v.%20NY%20--%20cert.%20petition.pdf\" target=\"_blank\" rel=\"noopener\">Petition for a Writ of Certiorari in the United States Supreme Court</a>.  The petition is the mechanism by which plaintiffs request Supreme Court review of the Court of Appeals’ decision finding that the amendment to the statute in 2013 which closed the fund for reopened cases to any claim after 1/1/14 was constitutional.\r\n\r\nPlaintiffs seek to present their arguments to the Supreme Court that the 2013 amendment violates the U.S. Constitution in the following ways:\r\n<ul>\r\n 	<li>The amendment violates the contracts clause by impairing pre-existing contractual relationships between carriers and employers;</li>\r\n 	<li>The amendment violates due process as it bears no rational relationship to a legitimate government purpose and amounts to a simple transfer of wealth; and,</li>\r\n 	<li>The amendment amounts to an unconstitutional taking as carriers face liabilities for which they were unable to charge premiums.</li>\r\n</ul>\r\nIn addition to providing the court with a synopsis of the arguments that plaintiffs intend upon presenting to the Supreme Court, plaintiffs are required to provide a rationale for why the court should accept the case for review. Plaintiffs note the following with respect to why the court should grant certiorari:\r\n<ul>\r\n 	<li>There is a dispute among the lower circuits regarding laws which expand liability under pre-existing insurance policies; and,</li>\r\n 	<li>The issues are important to the insurance industry and other highly regulated industries as a result of the “massive and disruptive economic consequences threatened by the amendment”.</li>\r\n</ul>\r\nAccording to information on the Supreme Court’s website, <a href=\"https://thelomad.com/getmad.today/wp-contentwww.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-1179.html\" target=\"_blank\" rel=\"noopener\">the case has been distributed for Conference on 5/31/18</a>.\r\n\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentwww.supremecourt.gov/about/images/CourtBuilding.jpg\"><img src=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2018/05/CourtBuilding-300x167-1.jpg\" /></a>','United States Supreme Court is Considering a Petition for a Writ of Certiorari Of the American Economy Decision','','publish','closed','closed','','united-states-supreme-court-is-considering-a-petition-for-a-writ-of-certiorari-of-the-american-economy-decision','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2018/05/united-states-supreme-court-is-considering-a-petition-for-a-writ-of-certiorari-of-the-american-economy-decision/',0,'post','',0),(46415,25,'2018-03-31 00:00:00','2018-03-31 04:00:00','I am so tired of seeing claimants get schedule loss of use awards. They do not represent lost time. They are windfalls. I am in the process of drafting a stipulation for a woman who is going to get $15,000 when she had no lost time from work. It’s a gift to her.\r\n\r\nI will be having left CTS release in a couple of weeks. I also had the right done 3 years ago. I didn’t miss any time from work. The surgery made me better. I proably won’t miss any time from work this time either. I did not file a claim – I have the risk factors for CTS – I am a 51 year old overweight woman. If I put this through workers’ compensation, and I believe I could have established a compensable claim if I sought to, I would receive awards for approximately $53,000. (Two 15% SLU awards at $850.00) Why? I am not going to ever lose time from work for this condition. I am typing now and I will continue to type. It will not affect my ability to earn a living.\r\n\r\nAnd then there are some people with conditions that are schedulable who end up worse off because of this crazy system. I believe that those people should be able to continue to get payment if their condition keeps them from being able to work. Disability exceeds the schedule? How is that possible? It is possible because the SLU process is completely divorced from realty. It is a fiction that really needs to be changed.','Schedule Loss of Use Awards – Grrrrrrrrr','','publish','closed','closed','','schedule-loss-of-use-awards-grrrrrrrrr','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2018/03/schedule-loss-of-use-awards-grrrrrrrrr/',0,'post','',0),(46416,2461,'2021-08-18 01:03:07','2021-08-18 05:03:07','','CourtBuilding-300x167-1','','inherit','closed','closed','','courtbuilding-300x167-1','','','2021-08-18 01:03:07','2021-08-18 05:03:07','',46414,'/wp-content/uploads/sites/1503150/2018/05/CourtBuilding-300x167-1.jpg',0,'attachment','image/jpeg',0),(46418,25,'2018-03-31 00:00:00','2018-03-31 04:00:00','Rick Costner, Sr. honors the life of his 18 year old son and co-worker, Ricky Costner Jr., after he was murdered in front of him at work by creating and raising funds for the Ricky Costner Jr. College Scholarship Fund\r\n\r\nI have had the pleasure of attending a benefit at the Buffalo, NY home of Rick Costner, Sr., to raise money for the Ricky Costner Jr. College Scholarship Fund for a number of years now.\r\n\r\nI met Rick Costner, Sr., sometime near the end of January, 2010. I never had the pleasure of meeting Ricky Costner, Jr. because he was murdered at work on January 16, 2010 by a deranged coworker in front of his father who was also shot twice.\r\n\r\nRick Costner, Sr. was the manager of Merge Restaurant in Buffalo, NY, and his only son, Ricky, Jr., had recently started working with him as a sous chef. Ricky, Jr., just 18 years old at the time and full of life, was an aspiring chef planning on attending Erie Community College’s Culinary Arts Program. He liked to flirt and play video games and had dreams of opening his own restaurant one day. See “Teen’s tragic death leads to triumph for other students: Teen’s slaying is impetus for scholarship program”, Buffalo News, By Jay Rey, News Staff Reporter on March 10, 2013, https://thelomad.com/getmad.today/wp-contentwww.buffalonews.com/apps/pbcs.dll/article?AID=/20130310/CITYANDREGION/130319954/1010.\r\n\r\nJanuary 16, 2010 started like many others, until Ernesto Arechavaleta-Taureaux, at the time a 51 year old dishwasher at the restaurant, arrived at work. Shortly after getting to the restaurant Arechavaleta-Taureaux opened fire with a 9 mm hand gun, shot Ricky, Jr. once, and Rick, Sr. twice. Ricky, Jr. collapsed. While wounded and bleeding from two gunshot wounds to the chest, Rick, Sr. watched his only son as he lay dying right before his eyes.\r\n\r\nTwo NY compensation claims arose out of this tragedy for the Costner family: Rick Costner, Sr.’s claim and the claim for the estate of Ricky, Jr. If the purpose of workers’ compensation is to award, “that sum of money which will put the party who has been injured in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation…” that obviously was not possible in this case. See Livingstone v. Rawyards Coal Co., (1880), 5 App.Cas. 25, 39.\r\n\r\nThe criminal justice system has proven equally ineffectual as Ernesto Arechavaleta-Taureaux was found mentally ill and not responsible for these heinous acts.\r\n\r\nInstead of wallowing in their grief and railing at the systems’ impotency to redress these wrongs, Rick, Sr. and his wife Catalina, their children, grandson Ricky Costner, III, family, friends and neighbors, transcend their sorrow and celebrate and honor Ricky, Jr.’s life by raising money for students to pursue the dream that Ricky, Jr. was denied: pursuit of a degree at Erie Community College’s Culinary Art’s Program. I have had the privilege of attending the yearly benefit for this scholarship at the Costner’s home and am always filled with gratitude as I contemplate the event.\r\n\r\nI am grateful for the obvious. My 21 year old son has worked with me in my office. He may want to finish his college career someday. He likes to flirt with girls and play video games. He has dreams about becoming an electronic music producer. I am grateful that no psychotic mad man has forcibly dispossessed my son of his dreams and taken part of my heart with him.\r\n\r\nI am also grateful in a less selfish way. I am humbled by the Costners’ response to their loss in choosing to help other students achieve what their son was denied. I am filled with gratitude at having a peripheral vantage point to observe the love and perseverance of a remarkable family. The scholarships are a testament to a young man who inspires not only those who knew him before January 16, 2010, but also many who have seen what a remarkable young man he was through the selfless efforts of his family and friends.\r\n\r\nIf you too feel some gratitude about the blessings in your life, and would like to express it through a donation to the Ricky Costner Jr. College Scholarship Fund, please click on the link below:\r\n\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentwww.crowdrise.com/rickycostnerjrculina/fundraiser/melissaday1/setup_success/member\" target=\"_blank\" rel=\"noopener\">https://thelomad.com/getmad.today/wp-contentwww.crowdrise.com/rickycostnerjrculina/fundraiser/melissaday1/setup_success/member</a>.','Ricky Costner Jr., 18 Year Old Slain by a Deranged Co-Worker, Honored by Family and Friends','','publish','closed','closed','','ricky-costner-jr-18-year-old-slain-by-a-deranged-co-worker-honored-by-family-and-friends','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2018/03/ricky-costner-jr-18-year-old-slain-by-a-deranged-co-worker-honored-by-family-and-friends/',0,'post','',0),(46419,25,'2018-05-25 01:03:24','2018-05-25 05:03:24','On May 23, 2018 in the published New York State Register, the Workers’ Compensation Board submitted proposed changes to Section 302-1.6 of 12 NYCRR in an effort to try and expand its legal internship program. The purpose of these changes is to allow for a more expansive group of law students and legal interns to represent parties in Board proceedings. The Board’s rationale behind these amendments, as provided with the proposed changes, is to decrease the total number of unrepresented claimants, especially in cases where only medical benefits are being sought as opposed to indemnity benefits.\r\n\r\nThe commentary provided by the Board with the proposed amendments state: “The proposed regulation will permit the Board to directly hire and supervise law school and legal interns, who will represent parties of interest in Board proceedings.” The Board goes on to state it intends to hire these interns through work-for-credit programs working with law schools, and there would not be monetary compensation.\r\n\r\nCurrently, the regulations allow for legal or law school interns associated with a legal aid organization to represent a party in Board proceedings. However, currently the definition of “legal or law interns” is subject to the Third Department Appellate Division’s rules. Part of the proposed amendment would allow for the Appellate Department where the intern’s activities are taking place to make the determination about whether or not to permit the intern to practice.  However, this raises an interesting question for this author – how does this proposed amendment account for the growing accessibility to a statewide Workers’ Compensation practice due to introduction of virtual hearings? Theoretically, a legal intern’s practice activities could encompass appearances in each Appellate Division. Neither the proposed amendments nor the commentary provided by the Board seems to address this jurisdictional question.\r\n\r\nAdditionally, the proposed amendments would now provide a definition for “legal aid organization”, which is not currently defined under the existing regulation. The specific language of the proposed amendment defining this term is as follows: <em>“including programs that provide assistance to persons who are financially unable to pay for legal services and are eligible to qualify for free legal services in accordance with the standards and guidelines of the organization or program in which they are engaged.”</em>\r\n\r\nLastly, the proposed amendments explicitly expand the range of services these interns can provide. Specifically, the amendments would allow the interns – under general supervision of an attorney – to fully participate in informal proceedings, prepare and enter into stipulations other than waiver agreements, and prepare and file applications for review/full board review or rebuttals. The regulations would allow these interns to enter into waiver agreements under immediate supervision of an attorney – which is already defined by the regulation to mean that the attorney be personally present with the intern throughout the hearing. The regulations already allow these interns to perform numerous activities in front of the Board under both general and immediate supervision of an attorney.\r\n\r\nThere is a 60-day public comment period from the day of the publication of this notice.','Proposed Changes Submitted Seeking to Expand the Board’s Legal Internship Program','','publish','closed','closed','','proposed-changes-submitted-seeking-to-expand-the-boards-legal-internship-program','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/?p=46419',0,'post','',0),(46420,25,'2017-10-26 00:00:00','2017-10-26 04:00:00','On October 24, 2017, the Court of Appeals in <u>American Economy Insurance Co. v. State of New York</u>, — N.E.3d —-, 2017 WL 4779421 (N.Y. Ct. of App., Oct. 24, 2017), effectively marked the end of The Fund for Reopened Cases by holding the 2013 amendment to WCL § 25-a is constitutional in light of any retroactive effect the amendment could have on prior cases or issued Workers’ Compensation policies.\r\n\r\nThis case initially arose as a result of the New York Legislature’s enactment of an amendment to WCL § 25-a in 2013, which mandated The Fund for Reopened Cases would be closed to new applications after January 1, 2014. Shortly thereafter, approximately twenty insurance companies who issued Workers’ Compensation policies in New York (hereinafter “Plaintiffs”) banded together to challenge the constitutionality of the 2013 amendment. Specifically, the Plaintiffs argued that the amendment retroactively imposed unfunded liability upon them in connection with future reopened cases in violation of the Contract Clause of the Federal Constitution and the Takings Clause and Due Process Clause of the Federal and State Constitutions. At the Supreme Court level, the State of New York as defendant motioned to dismiss the complaint. The Supreme Court granted the State’s motion, concluding that the amendment to § 25-a operated prospectively as it closed the Fund only to new applications, and rejected Plaintiffs’ constitutional arguments. On appeal, the Appellate Division, First Department reversed, and held that the 2013 amendment to § 25-a was unconstitutional “as retroactively applied to policies issued before October 1, 2013.” Additionally, the First Department held that the amendment, applied retroactively, violates the Contracts Clause and the Takings Clause, but did not address the Due Process arguments.\r\n\r\nSubsequently, the State appealed as of right (pursuant to CPLR § 5601(b)(1)) to the Court of Appeals. The issue on appeal was whether the 2013 amendment to WCL § 25-a created a retroactive effect which is unconstitutional in light of the Contracts Clause, Takings Clause, and the Due Process Clause. Justice Fahey, writing for a unanimous Court, reversed the First Department and held that the amendment is constitutional in light of any retroactive effect.\r\n\r\nThe Court initially examined whether or not the amendment had a retroactive effect. Without affirmatively holding either way, the Court proceeded with their analysis assuming Plaintiffs’ argument was accurate insofar as there was a retroactive effect which would impose additional liability on the Plaintiffs.\r\n\r\nMoving to the constitutional arguments, the Court first addressed the Contracts Clause. The Court acknowledged that there is a three-part initial inquiry when analyzing a Contracts Clause constitutionality issue: “whether there is a contractual relationship, whether a change in law impairs that contractual relationship, and whether the impairment is substantial.” The Court found that the amendment does not impair the contractual relationship between the Plaintiffs and their insured, and therefore the amendment does not violate the Contracts Clause. Specifically, the court noted that the amendment did not change the legal enforceability of the insurance contracts and the parties still have the same ability to enforce the bargained-for terms of the contracts that they did prior to the amendment. Additionally, the insurance policies at issue expressly assumed the risk of legislative change.\r\n\r\nNext, in analyzing Plaintiffs’ Takings Clause argument, the Court identified that the threshold analysis is to determine whether a vested property interest has been identified. Plaintiffs asserted that they have a protected interest in the value of their contracts with their insured, and the alleged diminution in the value of those contracts would be a taking. However, the Court found that “as a general matter, the government does not ‘take’ contract rights pertaining to a contract between two private parties simply by engaging in lawful action that affects the value of one of the parties’ contract rights.” Accordingly, since the Plaintiffs could not identify any vested property interest impaired by the amendment, the Court held that their argument fails.\r\n\r\nFinally, the Court addressed the Plaintiffs’ Due Process argument. In the context of a substantive due process challenge to retroactive legislation, the Court applies a rational basis scrutiny test. This test requires a “legitimate legislative purpose furthered by rational means.” For retroactive legislation, this test “is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.” Accordingly, the Court held that the State’s contention that the amendment’s retroactive effect was to prevent substantial liabilities for many years after the effective date of the amendment constituted a sufficient showing that the retroactive effect was justified by a rational legislative purpose. Therefore, the Court rejected this argument.\r\n\r\n—\r\n\r\nThe entire <u>American Economy</u> decision can be found here:   <a href=\"https://thelomad.com/getmad.today/wp-contentwww.nycourts.gov/ctapps/Decisions/2017/Oct17/96opn17-Decision.pdf\">https://thelomad.com/getmad.today/wp-contentwww.nycourts.gov/ctapps/Decisions/2017/Oct17/96opn17-Decision.pdf</a>','Court of Appeals Upholds 2013 Amendment to Section 25-a – Marking the End for The Fund for Reopened Cases','','publish','closed','closed','','court-of-appeals-upholds-2013-amendment-to-section-25-a-marking-the-end-for-the-fund-for-reopened-cases','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2017/10/court-of-appeals-upholds-2013-amendment-to-section-25-a-marking-the-end-for-the-fund-for-reopened-cases/',0,'post','',0),(46421,25,'2017-10-12 00:00:00','2017-10-12 04:00:00','Happy Friday the 13<sup>th</sup> to all! First off, I would like to introduce myself, as this is my first contribution for this blog. My name is Rob Caggiano, and I was recently brought into the LOMAD family as a Law Clerk as I await my bar results and (hopefully) my pending admission to the New York State Bar. Now that we have introductions out of the way, my goal today is to provide some insight into many of those pesky time constraints which both sides of the aisle should be mindful of while handling a New York State Workers’ Compensation claim. If I do my job right, all of my readers will walk away being able to avoid stepping on any “cracks” in the system which will undoubtedly break their client’s back.\r\n\r\n<u>WCL § 18 – Employee’s Obligation to Report an Injury </u>\r\n\r\nOh no, an employee just walked under a ladder at work – and well, it fell on him. Looks like his bad luck did not waste any time coming. This employee will now have an impending Workers’ Compensation claim, however, he must comply with WCL § 18. This section of the WCL statute places a burden on an employee who sustains an injury at work to report said injury to his employer <strong><u>within 30 days of its occurrence</u></strong>. Now technically, § 18 requires that this notice be in writing, with certain enumerated requirements. However, the Board will often find no harm, no foul, if the employer was found to be put on sufficient notice of the accident via oral notice from the injured employee, notice from another employee, or witnessed the accident themselves. Hey claimant’s attorney, your client’s luck is already turning around!\r\n\r\n<u>WCL § 28 – Employee’s Requirement for Reporting to the Board</u>\r\n\r\nBack to that injured employee with a ladder bruise. Having already given notice to his employer within 30 days, he must also inform someone else – the Board. WCL § 28 requires that all claims for Workers’ Compensation be filed with the Chair of the Board <strong><u>within two years after the date of the accident</u></strong>.  This injured employee may have dodged his back luck from the ladder if he did not strictly comply with § 18 notice, but he may want to clean up his act dealing with § 28. A failure to comply with this two-year requirement will bar an injured worker from claiming any benefits.\r\n\r\n<u>WCL §§ 18 and 28 for Occupational Diseases – WCL § 45</u>\r\n\r\nNext, we have a pretty superstitious employee. She is so superstitious in fact, for years she chucks bags of salt over her shoulder at work in order avoid some bad mojo. Well, unsurprisingly, her back seems to hurt a lot, so she wants to claim an occupational disease. You may be thinking about that 30 day notice requirement, but the WCL handles § 18 notice in a more lax way for occupational diseases. WCL § 45 states that the § 18 notice period is extended to <strong><u>two years after the claimant becomes disable, or after the claimant knew or should have known the disease was due to the nature of the employment, whichever is later</u></strong>. Please note, this time constraint <strong>is the same to comply with § 28</strong> in the context of making a claim to the Board for occupational diseases. All of that salt swingin’ protected this employee for an additional 23 months, not bad.\r\n\r\n<u>FROI-04/SROI-04 Notice of Controversy – WCL § 25(2)(b)</u>\r\n\r\nSo my carrier readers out there, you happened to get a Notice of Indexing for a claim, let’s say 26 calendar days ago. Well, I am willing to bet you also crossed paths with an ominous-looking black cat on your way to work that morning, because you just missed your WCL § 25(2)(b) window. Pursuant to §25(2)(b), a carrier is required to file a response (aka SROI-04 Notice of Controversy) to a Notice of Indexing with the Board <strong><u>within 25 days of receipt of a Notice of Indexing</u></strong>. Unfortunately, that black cat gets the last laugh, because on Day 26 the carrier just lost the ability to raise the defenses that no employee-employer relationship existed, no accident occurred, and the injury did not arise out of and in the course of employment.\r\n\r\n<u>Sub-Annual Report Filing – SROI-SA</u>\r\n\r\nHey defense attorneys and carriers; let’s put our heads together to figure out who broke a mirror. Someone must of, because the Board has rolled out a brand new filing requirement as part of its eClaims system – SROI-SA. This filing is a new sub-annual report, pursuant to 12 NYCRR §300.22(f)(3), which is due on all open cases, or closed cases with continuing indemnity payments. These reports are <strong><u>due 180 days from the date of accident </u></strong>(or date of FROI filing where date of accident is partial or unknown); and <strong><u>then every 180 thereafter</u></strong>. The SROI-SA must include summary of all payments made to a claimant during the preceding 180 days. I’m thinking the broken mirror belonged to the Chair of the Board . . . .\r\n\r\n<u>Board Directed and WCL § 25(1) Payments</u>\r\n\r\n. . . Yeah . . . the mirror definitely belonged to the Chair of the Board. How do I know you ask? Elementary, my dear Watson – let’s look at another addition of the eClaims system. When directed by the Board or payments are made pursuant to § 25(1), a carrier must submit a SROI filing following certain events: a modification to a claimant’s indemnity payments or wages paid by the employer, a suspension of payments or wages, or payments following acquisition of the claim from another carrier. This requirement, codified as 12 NYCRR § 300.22(f)(1), states these filing be done <strong><u>within 16 days following the aforementioned events</u></strong>. It must have been an expensive mirror.\r\n\r\n<u>FROI-00 and SROI-IP </u>\r\n\r\nPreviously, when a carrier received a Notice of Indexing from the Board for a case it had already accepted, the carrier need not do anything short of forwarding all relevant documents to the Board. However, here we are, in the world with eClaims, short one expensive mirror, and the carrier is now responsible for a few more filings. Now, when a carrier receives a Notice of Indexing for a case it has accepted, it must file a FROI-00 and a SROI-IP (if payments have already been made). These filings are to be made <strong><u>on or before the 18<sup>th</sup> day after the disability event, or within 10 days after the employer has knowledge of the event, whichever period is greater</u></strong>. Apparently breaking a mirror gets you 7 new filings!\r\n\r\n<u>Suspending Payments – WCL § 25(1)(d) </u>\r\n\r\nAs we wrap up here, beware carriers! That black cat from way back when is still running around causing all kinds of bad luck shenanigans (she has exceptional cardio). This time, you see her walking while on your way to the parking lot after work – <em>17 days</em> after ceasing payments on a Workers’ Compensation claim. That cat has a crooked smile, and here’s why: WCL § 25(1)(d) requires a carrier who ceases payments on a claim for any reason to file with the Board a SROI announcing this action <strong><u>within 16 days</u></strong>. When you get back into work on that 18<sup>th</sup> day, you won’t see the black cat, but rather a penalty from the Board in the amount of $300.','How to Avoid Bad Luck in Your Comp Claims This Friday the 13th – Some Basic Time Constraints for New York State Workers’ Compensation Claims to Keep in Mind','','publish','closed','closed','','how-to-avoid-bad-luck-in-your-comp-claims-this-friday-the-13th-some-basic-time-constraints-for-new-york-state-workers-compensation-claims-to-keep-in-mind','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2017/10/how-to-avoid-bad-luck-in-your-comp-claims-this-friday-the-13th-some-basic-time-constraints-for-new-york-state-workers-compensation-claims-to-keep-in-mind/',0,'post','',0),(46422,25,'2017-06-07 00:00:00','2017-06-07 04:00:00','In a stunning <em>sua sponte</em> reversal of its prior decisions, the Board has found that the Medical Treatment Guidelines apply to out of state treatment.\r\n\r\nIn the case, <u>Hospice Inc.</u>, WCB# 5951 3410, the workers compensation law judge found objections to medical treatment in favor of the providers. The carrier appealed that finding conceding that the Medical Treatment Guidelines do not apply to out-of-state treatment based on the Board’s previous interpretation of application of the guidelines.\r\n\r\nThe Board, on its own motion and pursuant to its continuing jurisdiction under WCL §123, revisited its prior decisions finding that the Medical Treatment Guidelines did not apply to medical treatment provided to claimants living outside the state. Noting that the guidelines had previously been found to be “instructive” for treatment rendered to claimants living outside the state, and relying on the decision in <em>Kigin v. State of New York Worker’s Compensation Board</em>, 24 NY3d 459 (2014), the board expressly overruled any prior authority to the contrary and found that the guidelines applied to a nonresident claimant’s treatment out-of-state.\r\n<p style=\"padding-left: 30px;\">The MTGs provide an evidence based medical standard for appropriate medical care. The standards for treatment contained in the MTG ensure that claimants receive the most effective medical care as recommended by best practices in the medical community, and as adopted by the Board in consultation with medical specialists. Such recommended treatment and care should be rendered without regard to the location of the claimant’s home or the medical provider’s practice. As such, the Board Panel finds that the MTGs apply regardless of where or by whom the treatment is rendered.</p>\r\nGiven this holding, the board also found that the variance procedure also applies to out-of-state treatment although it refused to require out-of-state providers to use New York Worker’s Compensation board forms. While those are certainly preferred, treatment should not be denied solely as a result of the failure of an out-of-state provider to use the proper form.\r\n\r\nObviously this is favorable from a defense perspective as we can now challenge out-of-state treatment which does not comply with the medical treatment guidelines. Additionally, a provider must satisfy our authorization or variance procedures even though they will not be held to strictly comply with filing of the proper forms.\r\n\r\nFor a copy of the decision please click on the following link: <a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2017/06/EBRB-1-finding-that-MTGs-apply-out-of-state_Redacted.pdf\" target=\"_blank\" rel=\"noopener\">EBRB-1 finding that MTGs apply out of state_Redacted</a>.','Board Finds that Medical Treatment Guidelines Apply to Out of State Claimants','','publish','closed','closed','','board-finds-that-medical-treatment-guidelines-apply-to-out-of-state-claimants','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2017/06/board-finds-that-medical-treatment-guidelines-apply-to-out-of-state-claimants/',0,'post','',0),(46423,25,'2017-02-05 00:00:00','2017-02-05 05:00:00','<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2017/02/image002.jpg\"><img src=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2017/02/image002.jpg\" /></a>By – Melissa A. Day and James B. Cousins\r\n\r\nRight now, WCL §35 is a unknown quantity for WC practitioners.  Section 35(3) allows for an “Extreme hardship redetermination” which allows any claimant, classified with an LWEC of “greater than 80 percent” to apply “within the year prior to the scheduled exhaustion” of the cap, and ask that the Board “reclassify the claimant to permanent total disability or TID due to factors reflecting extreme hardship.”    Notably too, §35(2) states specifically that no provision of the section shall be read to “derogate or impair”  existing case law on TID, nor a claimant’s right to obtain such a status.\r\n\r\nThe effect of this amendment is unknown because the panel has reported no cases discussing such a redetermination, and it is fair to assume, based on the age of the amendment, that cases are not yet, or only just now, becoming ripe on this issue (the cap is 8.65 years, and LWEC, and §35, apply for all claims after 2007 – so allowing for time for treatment, surgery, etc, plus the litigation time for classification, in theory, 81% claimants may just now be approaching the end of their caps.)\r\n\r\nIn our opinion, §35(3) is going to have many of the same growing pains that the rest of the reforms have had.  From our view, we think the two clearest factors of relevance are the (1) timing of the application and (2) burden of proof resting on the claimant.  Reading the statute, we think any application made after the caps expire is late and thus not actionable.  Further, we think it will be up to the claimant to prove “extreme hardship.”\r\n\r\nSheldon Silver wrote a Memorandum in Support for Bill A6163 (2007 Reforms) which was dated 03/13/2007 and in relevant part it stated:\r\nSection 5 of the bill adds a new section 35 to the Workers’ Compensation Law to establish a safety net for permanent partial disability claimants who surpass their number of maximum benefit weeks. Section 35 requires the Commissioner of Labor to survey and recommend best practices for return-to-work programs. In addition, this section incorporates existing case law on total industrial disability. For those with loss of wage earning capacity of 80 percent or greater, <strong>the bill additionally allows claimants to seek an exemption on extreme hardship grounds. This provision provides an exemption for extreme financial hardship, while allowing judges to take into account factors in addition to claimants’ income and other available resources.</strong> Finally, the Commissioner of Labor is directed to track those who are classified as permanently partially disabled over time.\r\nThis makes us believe the inquiry will look at the claimant’s financial status which seems to be a necessary component of proving an entitlement to the safety net but that “factors in addition to claimants’ income and other available resources”, such as change in medical condition, non-occupational medical conditions, aging and other factors can also be considered in proving “extreme hardship.”\r\n\r\nLooking to way other laws have used that term may be useful in preparing a defense and shaping the application of the law in terms of developing favorable case law driven factors.  “Extreme hardship” is used in immigration law, and those courts have rejected “common results” of deportation as extreme hardship saying that the to qualify, the results would need to be unusual or beyond what would normally be expected.  Federal bankruptcy law carries the term “undue hardship” which, if proved, allows the debtor to discharge student loans.  It is also a very high standard which considers near penury to not be “undue” and that a hardship is only “undue” is repayment would require the debtor to live below a “minimal” standard of living for a long period of time.  It also requires evidence that the debtor made a good faith effort to repay the loan before declaring bankruptcy.  New York criminal law allows conditional driver’s licenses for those convicted of drug and alcohol crimes if they show “extreme hardship.”  In that context, extreme hardship cannot be based entirely on the licensee’s testimony – he or she must give some corroborating evidence.  Generally, the licensee must show that they have employment, or schooling to attend that would be otherwise harmed by an inability to travel.  In that way, quite a few people likely qualify for, and receive, such conditional licenses.\r\n\r\nConsidering those few examples (we are sure there are more, but this is a quick review of low-hanging fruit) we would argue that the claimant’s burden should meet several tests/factors like those above, and that the claimant be required to produce vocational data, and some other corroborating proof including the possibility of medical evidence reflecting a deterioration, to establish entitlement.  Our analysis reflects that financial hardship will be a threshold test.\r\n\r\nThat said, expect the Board and WCLJs to apply the section liberally, because as a “remedial statute serving humanitarian purposes, the Workers’ Compensation Law should be liberally construed (see Matter of Merchant v Pinkerton’s Inc., 50 N.Y.2d 492, 495; Matter of Husted v Seneca Steel Serv., 41 N.Y.2d 140, 145; Matter of Wolfe v Sibley, Lindsay Curr Co., 36 N.Y.2d 505, 508).” Burns v. Miller Contruction, Inc., 55 N.Y.2d 501 (1982), and that proper standards won’t be set until there are at least a handful of appellate rulings on the matter.  We suspect that if the claimant can establish that they live at or below the poverty level that it is quite likely that the Board will grant ongoing benefits to the person.','Permanent Partial Disability “Safety Net”…What to Expect from WCL §35','','publish','closed','closed','','permanent-partial-disability-safety-netwhat-to-expect-from-wcl-%c2%a735','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2017/02/permanent-partial-disability-safety-netwhat-to-expect-from-wcl-%c2%a735/',0,'post','',0),(46424,2461,'2021-08-18 01:03:59','2021-08-18 05:03:59','','EBRB-1-finding-that-MTGs-apply-out-of-state_Redacted','','inherit','closed','closed','','ebrb-1-finding-that-mtgs-apply-out-of-state_redacted','','','2021-08-18 01:03:59','2021-08-18 05:03:59','',46422,'/wp-content/uploads/sites/1503150/2017/06/EBRB-1-finding-that-MTGs-apply-out-of-state_Redacted.pdf',0,'attachment','application/pdf',0),(46426,25,'2017-01-18 00:00:00','2017-01-18 05:00:00','The Board’s now-longstanding process re-engineering has hit on some very good ideas (Desk 32s for example) and some duds (Binding Arbitration). That being said, at their own admission, the Board has been seeking out cases where hearings are unnecessary and trying, with as much success as failure in this author’s experience, to resolve cases using Proposed Decisions and administrative “orders” as much as possible. The number of EC-81.7s — so-called “scheduling orders” — for litigation on permanency (usually SLUs) has noticeably increased; as has the Board’s use of PD-NSLs to resolve medical objections, even sometimes in cases where the issue is more complex than simply MTG compliance.\r\nWhen used properly, these tools can cut back on unnecessary hearings and reduce the cost of workers’ compensation claims for both parties and the WCB.\r\nThe increased activity in PD-NSLs has also resurrected an old problem: when a medical provider tries to intervene in the legal proceedings before the Board.\r\nBecause the Board has selected medical issues as one topic for increased use of Proposed Decisions, and because medical providers are copied on those decisions, the provider, having a copy of the decision in hand, and sometimes reading it through, thinks he or she can lodge an objection. Any why shouldn’t they? The language of the decision seems clear:\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2017/01/image001.png\"><img class=\"aligncenter wp-image-1674 size-full\" src=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2017/01/image001.png\" /></a>\r\nIn fact, the last page of these decisions contain a handy blank where the objecting party can write in their objection and return it to the Board:\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2017/01/image002.png\"><img class=\"size-full wp-image-1675 aligncenter\" src=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2017/01/image002.png\" /></a>\r\n\r\nHowever, this text is not meant for the medical provider, it is meant for the claimant or the carrier/SIE, and it seems clear that the provider, no matter how much actual interest he or she has in the decision, has no standing to object to it.\r\n\r\nWCL Section 25(2-b)(f) permits “any party” to object to a conciliation (proposed) decision provided the format and timeliness criteria are met. However, the Board has clearly stated, on more than one occasion, that a medical provider is neither a party, nor a “party in interest” (a WC term of art for these purposes). Indeed, the Board calls the case law “well settled” that a medical provider is not a party pursuant to WCL Sec. 23 and thus cannot appeal, or rebut an appeal, from a WCLJ’s decision. <u>Matter of Bausch &amp; Lomb</u>, 2000 NY Wrk Comp 79613525. The Board has held that a medical provider is not a “party” for the purpose of WCL Sec. 114-a(3) and thus cannot be penalized for presenting a frivolous argument to the Board through a variance or authorization request. , 2016 NY Wrk. Comp. 1500020. In fact, the Board has gone so far as to say that a medical provider, even when his or her own treatment is at issue, need not be served a copy of an appeal relating to that treatment. <u>Metropolitan Hospital</u>, 2014 NY Wrk. Comp. 0428844. If you are not subject to the jurisdiction of the Board for the purpose of a penalty for a frivolous objection, and if for all other enumerated purposes you are not a “party” or a “party in interest,” then you cannot lodge an objection to a Proposed Decision.','Back to the Future:  The Return of WCL 25(2-b): Fact-Finding without Judges and Legal Reasoning without Lawyers','','publish','closed','closed','','back-to-the-future-the-return-of-wcl-252-b-fact-finding-without-judges-and-legal-reasoning-without-lawyers','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2017/01/back-to-the-future-the-return-of-wcl-252-b-fact-finding-without-judges-and-legal-reasoning-without-lawyers/',0,'post','',0),(46427,2461,'2021-08-18 01:04:05','2021-08-18 05:04:05','','image002','','inherit','closed','closed','','image002','','','2021-08-18 01:04:05','2021-08-18 05:04:05','',46423,'/wp-content/uploads/sites/1503150/2017/02/image002.jpg',0,'attachment','image/jpeg',0),(46429,2461,'2021-08-18 01:04:10','2021-08-18 05:04:10','','image001','','inherit','closed','closed','','image001','','','2021-08-18 01:04:10','2021-08-18 05:04:10','',46426,'/wp-content/uploads/sites/1503150/2017/01/image001.png',0,'attachment','image/png',0),(46431,25,'2016-12-08 00:00:00','2016-12-08 05:00:00','It’s the Holiday Season!  Pay Your 32s Early Without Worry!  (Or Another Rhyme at Christmas Time)\r\nWorkers’ Compensation Settlements rev up this time of year; claimants and carriers/SIEs are looking to close files and the volume of 32 approvals from October through January is noticeably up.  A friendly reminder from the team at LOMAD that the Board recently finalized a series of amendments under 12 NYCRR 300.36 one of which opened up the option to early payment of 32 proceeds during, or even at the beginning, of the 10-day cooling off period.\r\n300.36(e)(3) now states that “A claimant who cashes or deposits a check made pursuant to the agreement may not request that the agreement be disapproved by the board” but goes on to note that the claimant remains entitled to recourse for late or incorrect payments.\r\nWe’ve had clients come to us, especially during the holidays, telling us that the payment window for a 32 was opened when they were on vacation, or otherwise unavailable.  This amendment now offers you the safety of paying before the payment window opens because the claimant’s “acceptance” by cashing the check, ends the 10-day waiting period, and thus closes the case earlier.','It’s the Holiday Season!','','publish','closed','closed','','its-the-holiday-season','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2016/12/its-the-holiday-season/',0,'post','',0),(46432,2461,'2021-08-18 01:04:16','2021-08-18 05:04:16','','image002','','inherit','closed','closed','','image002-2','','','2021-08-18 01:04:16','2021-08-18 05:04:16','',46426,'/wp-content/uploads/sites/1503150/2017/01/image002.png',0,'attachment','image/png',0),(46433,25,'2016-10-31 00:00:00','2016-10-31 04:00:00','HAPPY HALLO-WEAN!\r\n\r\nToday the Board issued Subject Number 064 – 892 which creates a “hearing process” for addressing opioid weaning issues. In support of this new process the Board recognizes that the Non-Acute Pain Medical Treatment Guidelines clearly indicate that long-term opioid use is recommended in only limited circumstances, involves constant clinical monitoring and reevaluation, and requires best practices for safe weaning of workers from opioid medications. To further effectuate this goal the Board has created a process for hearings addressing opioid medications.\r\n\r\nInitially, the process is commenced with the filing of an RFA-2 for which the Board has created a new checkbox, which indicates opioid weaning under Non-Acute Pain Medical Treatment Guidelines.  Attached to the RFA-2 must be either an IME or record review, which addresses weaning goals, a weaning program, or weaning resource.\r\n\r\nClaimants are now directed to submit a medical report in response to the carrier’s RFA-2 within 45 days after of the Board’s notice to the claimant.\r\n\r\nTranscripts of testimony of both the independent medical examiner and the claimant’s treating provider, if contrary medical evidence is submitted, are due to the Board prior to the opioid hearing.\r\n\r\nOnce the record has been fully developed, the Judge will issue a decision finding either:\r\n\r\n<img class=\"alignleft size-full wp-image-1594\" src=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2016/10/pic.png\" sizes=\"(max-width: 1607px) 100vw, 1607px\" alt=\"pic\" width=\"100%\" height=\"auto\" />\r\n\r\nFinally, once there is a ruling that weaning is required the insurer is to cover the costs of the claimant’s addiction treatment program, weaning protocol, and medications through the duration of the weaning process.\r\n\r\nThis effectively places whether a claimant’s opioid medication treatment is within the Non-Acute Pain Medical Treatment Guidelines on the expedited hearing calendar.  A link to the subject number is below.\r\n\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/SubjectNos/sn046_892.jsp\" target=\"_blank\" rel=\"noopener\">https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/SubjectNos/sn046_892.jsp</a>','HAPPY HALLO-WEAN!','','publish','closed','closed','','happy-hallo-wean','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2016/10/happy-hallo-wean/',0,'post','',0),(46435,2461,'2021-08-18 01:04:30','2021-08-18 05:04:30','','pic','','inherit','closed','closed','','pic','','','2021-08-18 01:04:30','2021-08-18 05:04:30','',46433,'/wp-content/uploads/sites/1503150/2016/10/pic.png',0,'attachment','image/png',0),(46436,25,'2016-10-25 00:00:00','2016-10-25 04:00:00','<strong>TO WEAN, OR NOT TO WEAN, THAT IS THE QUESTION.</strong>\r\n\r\nThe Board Panel, in a recent October 2016 Decision, considered the issue of whether a Claimant’s opioid medications were appropriate.\r\n\r\nSignificantly, in this case the claimant was classified with a permanent total disability. He was also on opioid medications since the inception of the claim in 2002.  He had rotated through a number of pain management treatment providers with the most recent provider, Dr. Salcedo, starting treatment in 2011. While with this practice group, the claimant was rotated through numerous opioid medications with none providing any objective functional improvement in his condition.  The claimant’s current medications were: Soma 250mg, Lunesta 3mg, Exalgo 16mg, Fentora 800mg, and Klonopin.\r\n\r\nA record review was completed by Dr. Grammar, which found that the claimant’s treatment deviated from the NAP Guidelines for a number of reasons, but most significantly that the Morphine equivalent dose was in excess of 100mg per day.  The recommendation was to wean the opioid medications with a two-month extinction, along with the discontinuance of the muscle relaxer, Soma.\r\n\r\nInterestingly, Dr. Salcedo sought authorization for Evzio, which temporarily reverses the side effects of opioid medications in situations of overdose.\r\n\r\nDr. Salcedo’s testimony was taken, and he indicated that the claimant had chronic opioid use and pain tolerance, along with dependency.  The doctor indicated he was in the process of weaning, but then described a generic plan to reduce the claimant’s intake. He also testified that the claimant failed to demonstrate any functional gains. The described plan was to circulate and rotate new opioids to determine claimant’s best functionality.\r\n\r\nAt a hearing in January 2016, the judge found that weaning was medically necessary and directed Dr. Salcedo to implement a weaning program or refer the claimant to an appropriate rehabilitation program. An appeal was filed to this decision.  The basis of the appeal was that the judge should have directed a weaning program in conformity with the consultant’s weaning recommendation.\r\n\r\nThereafter, Dr. Salcedo recommended rotating the claimant’s opioid medications by shifting the claimant from Exalgo to Belbuca and then weaning the claimant off of Fentora.  The provider’s reasoning for the transition of medications was that the current regimen does not provide any functional gains.\r\n\r\nAn addendum was sought from Dr. Grammar, who reiterated his opinion that the medications deviated from the NAP Guidelines, and that weaning could take six to eight weeks, with prolonged weaning taking a period of six to eight months.\r\n\r\nA second record review was sought by a new consultant, who indicated the opioids could be weaned at a rate of 10% to 15% per month over six to nine months.\r\n\r\nAt a hearing in June 2016, the Judge found that Dr. Salcedo’s plan to rotate medications addresses the current concerns of tolerance and escalation of symptoms due to opioid tolerance.  The judge then directed Dr. Salcedo to continue with the weaning program. Again, an appeal of this decision was filed. The basis for this appeal was that opioid rotation was inappropriate in the absence of objective functional improvement from the use of opioid medications.\r\n\r\nAfter a thorough review of the facts of both appeals, the Board noted, importantly, that long term opioid users, although given the protection of Subject Number 046 – 457, were still required to come into compliance with the NAP Guidelines.  The Board specifically held that the Subject Number and the Guidelines are not in conflict with each other, but rather the Guidelines make clear that the goal for long-term opioid users is to be transitioned into the standards of care set forth within the NAP Guidelines.\r\n\r\nThe Board specifically indicated there was not enough evidence to demonstrate that Dr. Salcedo was transitioning this claimant’s care into the standards set forth within the NAP Guidelines.  The Board also held that the Guideline’s standards of care require a multi-disciplinary approach to pain management that is function-oriented and goal-specific.  The goal of opioid therapy is functional restoration – not merely pain elimination.  The Board discussed that the NAP Guidelines provide that weaning from opioids can be done at a decrease of 10% per week without significant health risks to the claimant.  It was also discussed that in complicated cases, a referral to an addiction specialist should be made to assist with detoxification and withdrawal symptoms.\r\n\r\nWhen rendering a final conclusion in this claim, they noted that the Office of Alcoholism and Substance Abuse Services in the State of New York provides a list of certified inpatient and outpatient treatment facilities for addiction management.  They directed the carrier to cover the costs of the claimant addiction treatment program, 30 days’ worth of medication fill following the Decision, and payment for any narcotic prescription thereafter, only if written by an addiction treatment program provider.\r\n\r\nThe Board specifically found the claimant’s current medications were not in compliance with NAP Guidelines, that any further opioid use must be consistent with the NAP Guidelines, and that compliance must be insured through urine screening.\r\n\r\nSo what is our take away?\r\n<ol>\r\n 	<li>Well, to answer our initial question regarding whether to wean or not, the Board is clearly moving toward weaning when there is no functional improvement from the opioid medications.</li>\r\n</ol>\r\n<ol>\r\n 	<li>If you have a claimant who is a long-term opioid user, you should review the medical records to determine whether there is objective functional improvement being demonstrated from the continued use of opioid medications. If not, obtain a record review to determine if the claimant’s medications are in compliance with the NAP Guidelines.</li>\r\n</ol>\r\n<ol>\r\n 	<li>Push for weaning that is in compliance with the NAP Guidelines. The Board is standing by the criteria within the NAP Guidelines even when the claimant has been prescribed opioid medications for an extensively long period of time.</li>\r\n</ol>\r\n<ol>\r\n 	<li>The Board is directing claimants to take action on behalf of themselves for their own care. The Decision also indicates that once non-compliance with the NAP Guidelines has been found that Carriers are liable for the payment of one last time-specific fill, and only for scripts filled by an authorized addiction specialist thereafter, along with the cost of the addiction treatment program.  Based on the language of this Decision, payment of the program and the scripts through the program, even if it is not a WC authorized provider, is required.</li>\r\n</ol>\r\nBelow are links to both the Decision, as well as the New York State Office of Alcoholism and Substance Abuse Services’ list of certified treatment facilities.\r\n\r\nhttps://thelomad.com/getmad.today/wp-contentwww.oasas.ny.gov/providerDirectory/index.cfm?search_type=2\r\n\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2016/10/Opioid-Decision.pdf\" target=\"_blank\" rel=\"noopener\">Decision</a>','TO WEAN, OR NOT TO WEAN, THAT IS THE QUESTION.','','publish','closed','closed','','to-wean-or-not-to-wean-that-is-the-question','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2016/10/to-wean-or-not-to-wean-that-is-the-question/',0,'post','',0),(46438,2461,'2021-08-18 01:04:39','2021-08-18 05:04:39','','Opioid-Decision','','inherit','closed','closed','','opioid-decision','','','2021-08-18 01:04:39','2021-08-18 05:04:39','',46436,'/wp-content/uploads/sites/1503150/2016/10/Opioid-Decision.pdf',0,'attachment','application/pdf',0),(46439,25,'2016-04-15 00:00:00','2016-04-15 04:00:00','THE NEWLY REOPENED FUND FOR REOPENED CASES – THE FIRST DEPARTMENT DECLARES THE RETROACTIVE APPLICATION OF 25-A UNCONSTITUTIONAL!\r\n\r\nYesterday, in a dramatic reversal, the First Department declared retroactive application of the sunsetting of the Fund for Reopened Cases created under WCL 25-a unconstitutional under both the US and New York Constitutions.\r\n\r\nIn the declaratory judgment action brought by plaintiff insurers, the First Department found that because premiums prior to 10/1/13, when the Department of Financial Services authorized an increase in the amount that insurers could charge in light of the closing of the Fund for Reopened Cases, were calculated based on the availability of funds from the Fund for Reopened Cases, elimination of insurers’ right to seek reimbursement from the fund was an unconstitutional taking under the US and New York Constitutions and violated the Contracts Clause of the US Constitution.\r\n\r\nThe Fund for Reopened Cases is reopen again.\r\n\r\nContact us to discuss how we can use this information to your advantage!!!  We have three former Special Funds attorneys on staff and our entire team is itching to see how we can use this to your advantage!\r\n\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2016/04/25-a-Unconstitutional.pdf\" target=\"_blank\" rel=\"noopener\">THE NEWLY REOPENED FUND FOR REOPENED CASES – THE FIRST DEPARTMENT DECLARES THE RETROACTIVE APPLICATION OF 25-A UNCONSTITUTIONAL!</a>','Reopened Cases','','publish','closed','closed','','reopened-cases','','','2022-08-31 09:17:36','2022-08-31 13:17:36','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2016/04/reopened-cases/',0,'post','',0),(46441,2461,'2021-08-18 01:04:48','2021-08-18 05:04:48','','25-a-Unconstitutional','','inherit','closed','closed','','25-a-unconstitutional','','','2021-08-18 01:04:48','2021-08-18 05:04:48','',46439,'/wp-content/uploads/sites/1503150/2016/04/25-a-Unconstitutional.pdf',0,'attachment','application/pdf',0),(46442,25,'2015-11-28 00:00:00','2015-11-28 05:00:00','NY Allows Employer to Utilize a Preferred Provider Organization (PPO) for the First 30 Days of Treatment\r\n\r\nIn NY either the carrier or self-insured employer may contract with a PPO and care is limited to the PPO for treatment within the first 30 days.\r\n\r\nThe employer cannot create the panel but it can choose a PPO with which it contracts if it is self-insured or obtain insurance from a carrier which has a contract with a PPO.\r\n\r\nPursuant to 12 NYCRR § 325-8.2(a), the employer must notify its employees in writing “of the preferred provider organization arrangement for the treatment of all workers’ compensation injuries and illnesses. Such written notice shall also advise potential claimants that they may obtain more detailed informational materials regarding the preferred provider organization from the employer.”  <em>See </em><span style=\"text-decoration: underline;\">Headway Corporate Staffing,</span> 2002 NY Wrk. Comp. 9926360, 2002 NY Wrk. Comp. LEXIS 96994 (10/23/2002).  “In addition, the record is completely devoid of any evidence regarding whether the employer properly provided the claimant with written notice that she was covered by a PPO prior to her accident.” The regulation does not specifically state when the notice should be provided but it seems that one could infer from the language requiring that notice be given to all employees that it is disassociated from the occurrence of an accident and therefore should be provided before an injury.\r\n\r\nAlso, proof of the notice should be retained to challenge treatment obtained outside the network.  A link to the active PPOs can be found <a href=\"https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/hcpp/PrefProviderOrg/ActivePPOList.pdf\" target=\"_blank\" rel=\"noopener\">here</a>.','NY Allows Employer to…','','publish','closed','closed','','ny-allows-employer-to','','','2022-08-31 09:17:37','2022-08-31 13:17:37','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/11/ny-allows-employer-to/',0,'post','',0),(46444,25,'2015-11-23 00:00:00','2015-11-23 05:00:00','FULL BOARD HOLDS THAT AN EMPLOYEE CANNOT BE CONSIDERED A SIX-DAY WORKER MERELY BECAUSE HE HAS WORKED MORE THAN 270 DAYS\r\n\r\nIn a recent Mandatory Full Board Appeal filed by the Law Offices of Melissa A. Day, PLLC, the Board held that when deciding a claimant’s average weekly wage the initial determination in any case is whether an employee is deemed to be a five or six day worker. Although this is not a new concept in the Workers’ Compensation arena the Full Board has made one significant clarification: whether an employee is deemed to be a five or six-day worker is a determination that is made independently based on the facts of the case prior to determining which multiple under WCL § 14 is appropriate for calculating the average weekly wage.\r\n\r\nThis is an excellent decision from the Full Board on this issue. The Full Board has specifically found within this Decision that “[i]n so far as this decision is in conflict with any earlier decision addressing this issue, the board disavows such other decisions in favor of the explanation and interpretation contained herein.” The significance of the Decision lies in the specific facts of the case and the prior Board Panel Decisions.\r\n\r\nPreviously, there were numerous Board Panel decisions that were summarily relying upon the number of days worked by an employee as reflected on the C-240 to make the determination of whether a worker was a five or six day worker. <u>Rosina Foods</u>, 2013 NY Wrk. Comp. 0602001 (NY Wrk. Comp. 2013). In <u>Rosina Foods,</u> the Board affirmatively stated:\r\n<blockquote>[T]he C-240 provides a guideline that the 260 multiple is to be used for claimants who worked at least 234 days and the 300 multiple is to be used for claimants who worked at least 270 days in the 52 weeks prior to the date of the accident.</blockquote>\r\n<u>Id</u>. <em>See also</em>, <u>Nutreco USA, Inc.,</u> 2014 NY Wrk. Comp. 0416882 (NY Wrk. Comp. 2014).\r\n\r\nIn <u>Kistner Concrete</u>, the C-240 indicated that the claimant worked 271 days the year preceding the accident.  A closer review of the C-240 illustrated that in the 52 weeks preceding the injury of record, the claimant worked a five-day week for 41 weeks, and 11 six-day weeks.  When setting the AWW the WCLJ noted that the claimant had “past two seventy, he gets the three hundred multiple” and set the average weekly wage using a 300 multiple.\r\n\r\nOf note, and raised on Appeal, only 10 weeks of reported payroll exceed the 300 multiple AWW set by the WCLJ. For the balance of 42 weeks, the claimant earned an average of $100 less than the 300 multiple calculation used by the WCLJ.   Despite these facts, the two members of the Board Panel still <em>affirmed</em> the WCLJ’s use of a 300 multiple. In affirming, the two member Panel noted the that C-240 creates a “guideline that the 300 multiple is to be used for claimants who worked at least 270 days in the 52 weeks prior to the date of accident.” The one member dissent felt this was a misinterpretation of the plain language of the form C-240 that created an overinflated average weekly wage.\r\n\r\nOn Mandatory Appeal to the Full Board it was argued successfully by the self-insured employer that this is an erroneous interpretation of the plain language contained within the C-240. It was argued by the self-insured employer that the above referenced decisions, along with their progeny, misinterpret the instructions on a form C-240. The form makes clear that similar worker payroll is necessary when a five-day worker has worked less than 234 days in a 260 day work year and that similar worker payroll is necessary when a six-day worker has worked less than 270 days in a 300 day work year. There is no conclusion drawn nor guideline created by the C-240 that an employee who is a five-day worker is entitled to a six-day worker calculation.  Rather, the C-240 provides instruction as to what constitutes a substantial portion of the year for a five-day worker and a substantial portion of the year for a six-day worker so that similar worker payroll can be provided, if necessary. However, the guideline for when to submit similar worker payroll is not a mandate of the Board in determining when a 260 multiple or 300 multiple pursuant to WCL § 14 (1) is applicable. Instead, determination as to the appropriate multiple is required on a case by case and fact by fact basis.\r\n\r\nThe Full Board has resolved this erroneous interpretation of the C-240 by this decision and specifically noted that the first test is an independent review of the facts to determine whether an employee is a five or six-day worker.  Although the C-240 is a factor to be reviewed in that determination of whether an employee is a five or six-day worker it is not the sole factor.  Once there is a determination of the claimant’s status as a five or six-day worker then the calculation of the average weekly wage using the appropriate multiple can be completed.\r\n\r\nLinks to the decision is below:\r\n\r\nhttps://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/wclaws/Decisions/2015July/KistnerConcreteProductsInc.jsp','An Employee Cannot be…','','publish','closed','closed','','an-employee-cannot-be','','','2022-08-31 09:17:37','2022-08-31 13:17:37','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/11/an-employee-cannot-be/',0,'post','',0),(46445,25,'2015-10-27 00:00:00','2015-10-27 04:00:00','WHEN DOES VOCATIONAL AND FUNCTIONAL CONSIDERATIONS, SUCH AS A CLAIMANT’S AGE, EDUCATION, TRAINING, EXPERIENCE, ETC. HAVE AN INFLUENCE ON A CLAIMANT’S BENEFITS?\r\n\r\nIn <em>Matter of Canales</em> the claimant argued that her vocational factors should have been considered in combination with her medical impairment to determine the compensation rate for her temporary disability and as such would have rendered her unemployable. However, it was found that the 2007 reforms were not intended to change the Board’s reliance on the claimant’s actual earnings or degree of physical impairment as supported by the medical evidence to determine wage earning capacity for the purposes of WCL 15 (5) (a). In fact, the phrase “loss of wage earning capacity” was added to WCL §15(3)(w) with the specific intention to establish a new duration limit on non-schedule permanent partial disability benefits and was therefore relevant only to the determination of the duration of permanent partial disability benefits at the time of classification. Thus, vocational and functional factors should not be considered to determine the compensation rate for temporary disability. Matter of <em>Canales v. Pinnacle Foods Group LLC</em>, 117 A.D.3d 1271\r\nHowever, it is well established that vocational factors are considered to determine loss of wage earning capacity in PPD claimants. What is less clear is the difference between claimants that returned to work and is consequently earning wages and claimants that did not return to work at the time of the classification.\r\nIn case of permanent partial disability when the claimant did not return to work, it is up to the WCLJ/Board to determine the claimant’s wage earning capacity. In <em>Matter Weinhart v Motors Holding</em>, 245 A.D.2d 577 (1997) The Board considers the nature and degree of the claimant’s disability, vocational opportunities and corresponding salaries available to the claimant, the claimant’s work restrictions etc. to determine the loss of wage earning capacity. Thus, for the non-working claimant vocational factors are considered to determine the loss of wage earning capacity and consequentially the wage earning capacity to calculate the weekly rate. “The loss of wage earning capacity will determine the maximum number of benefit weeks available pursuant to WCL §15(3)(w), and its inverse, the wage earning capacity will be used to calculate the weekly rate. <em>Matter of Buffalo Auto Recovery</em>, 2009 NY Wrk Comp 80703905.\r\nHowever, it seems that things get murky when a claimant is working at the time of classification. When a claimant remains attached to the labor market a claimant’s wage earning capacity for a permanent partial disability, according to <em>Buffalo auto</em>, should be determined based on the difference between the claimant’s earnings at the time of his classification and his former average weekly wage. <em>Matter of Buffalo Auto Recovery</em>, 2009 NY Wrk Comp 80703905. Thus, according to <em>Matter of Buffalo</em>, there are two different methods for calculating the loss of wage earning capacity of a claimant with permanent partial disability, depending on whether the claimant was working or not.\r\nHowever, in <em>Matter of Longley Jones</em>, the Full Board found that a distinction should not be drawn between a working and non-working claimants. It found that considering a working claimant‘s temporary sometimes partial job earnings, could ultimately lead to an unjust result between working and non-working claimants with exactly the same impairment. Thus, the Full Board did not favor a distinction between working and non-working claimants, but did emphasize that a claimant’s wages at the time of classification remains an important factor that should be considered with all the other factors in determining a claimant’s loss of wage earning capacity. <em>Matter of Longley Jones Management Corp,</em> 2012 NY Wrk. Comp. 60704882.\r\nIn <em>Matter of Baczuk</em> it was recently found that, where actual earnings during a period of disability are established, wage earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more/less during such a disability period. Vocational and functional considerations must be considered with respect to loss of wage earning capacity and as such are only relevant as to the duration of a claimant’s permanent partial disability benefits. <em>Matter of Baczuk v. Good Samaritan Hosp</em>., 2015 N.Y. App. Div. LEXIS 7255. This decision is consistent with Buffalo Auto. It supports again a distinction between working and non-working claimants.','Vocational and Functional…','','publish','closed','closed','','vocational-and-functional','','','2022-08-31 09:17:37','2022-08-31 13:17:37','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/10/vocational-and-functional/',0,'post','',0),(46446,25,'2015-09-19 00:00:00','2015-09-19 04:00:00','<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2015/09/Crossword-EXF-Puzzle-and-Clues.png\"><img src=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2015/09/Crossword-EXF-Puzzle-and-Clues.png\" alt=\"Crossword EXF Puzzle and Clues\" /></a>\r\n\r\nFor a copy of the answers, please email Elana Fourie at efourie@getmad.today.','Challenge Yourself','','publish','closed','closed','','challenge-yourself','','','2022-08-31 09:17:37','2022-08-31 13:17:37','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/09/challenge-yourself/',0,'post','',0),(46447,2461,'2021-08-18 01:05:36','2021-08-18 05:05:36','','Crossword-EXF-Puzzle-and-Clues','','inherit','closed','closed','','crossword-exf-puzzle-and-clues','','','2021-08-18 01:05:36','2021-08-18 05:05:36','',46446,'/wp-content/uploads/sites/1503150/2015/09/Crossword-EXF-Puzzle-and-Clues.png',0,'attachment','image/png',0),(46448,25,'2015-09-16 00:00:00','2015-09-16 04:00:00','To demonstrate attachment to the labor market, a Claimant must submit evidence consistent with the requirements laid out in <u>American Axle</u>, 2010 WL 438153, 2010 NY Wrk. Comp. LEXIS 2560, WCB # 8030 3659 that he is:\r\n<ol>\r\n 	<li>Actively seeking work within her restrictions that is timely diligent and persistent;</li>\r\n 	<li>Actively participating in a vocational rehabilitation program;</li>\r\n 	<li>Actively participating in a job location search service such as a One-Stop Career Center; or,</li>\r\n 	<li>Actively participating in a job service commonly used to secure work within a specific industry.</li>\r\n</ol>\r\n<u>Erie County Medical Ctr. Corp.</u>, <a href=\"https://thelomad.com/getmad.today/wp-contentadvance.lexis.com/Auth/Replay?targetUrl=/ContentViewExternalAccess%3FdocId%3D%2Fshared%2Fdocument%2Fadministrative-materials%2Furn%3AcontentItem%3A539Y-D7R0-01WV-S0YJ-00000-00%26Hcsi%3D271075%26title%3D2011%20NY%20Wrk.%20Comp.%20LEXIS%202999%26vendorreportId%3D%26pageno%3D10%26activeRptr%3DPAGE_7559\" target=\"_blank\" rel=\"noopener\">2011 NY Wrk. Comp. LEXIS 2999, 10-14</a>.\r\n\r\n<strong><u>1.) The claimant has failed to produce evidence that she is actively seeking work within her restrictions that is timely, diligent and persistent.</u></strong>\r\n\r\nIf the independent job search is <strong><u>in person</u></strong> documentary evidence should provide\r\n<ul>\r\n 	<li>the day, month, and year of the contact;</li>\r\n 	<li>the name and address of the employer;</li>\r\n 	<li>the name and telephone number of the person with whom employment was discussed;</li>\r\n 	<li>the type of job sought; and</li>\r\n 	<li>the response of the potential employer.</li>\r\n</ul>\r\n<u>American Axle</u>, at p. 7.\r\n\r\nIf the contact was <strong><u>written</u></strong>,\r\n<ul>\r\n 	<li>copies of the resume submitted if any;</li>\r\n 	<li>the inquiry letter or e-mail communication; or</li>\r\n 	<li>the application completed is necessary along with the day, month, and year submitted,</li>\r\n 	<li>the nature of employment sought,</li>\r\n 	<li>name and address of the employer and</li>\r\n 	<li>the response of the potential employer.</li>\r\n</ul>\r\n<u>American Axle</u>, at p. 7.\r\n\r\n<strong><u>2.) The claimant has not produced any evidence that she is actively participating in a vocational rehabilitation program.</u></strong>\r\n\r\nAs is noted in <u>Erie County Medical Ctr. Corp.</u>:\r\n\r\nA claimant may be found to be attached to the labor market if she is actively participating in a vocational rehabilitation program through VESID\r\n\r\nIn the instant case, there is no evidence that the claimant is actively participating in a vocational rehabilitation program.\r\n\r\n<span style=\"text-decoration: underline;\"><strong>3.) </strong></span><u style=\"font-weight: bold;\"><strong>The c</strong>laimant has not actively participated in a job location service such as a One-Stop Career Center</u>.\r\n\r\nA claimant may be found to be attached to the labor market if she is actively participating in a job location service such as a One-Stop Career Center (Matter of American Axle, 2010 NY Wrk Comp 80303659).\r\n\r\nActive participation with a One-Stop Career Center “… means\r\n<ul>\r\n 	<li>calling for an appointment;</li>\r\n 	<li>attending an orientation session;</li>\r\n 	<li>meeting with a One-Stop counselor to develop a resume;</li>\r\n 	<li>registering a resume in the One-Stop system;</li>\r\n 	<li>following up to determine whether there were any job matches; and</li>\r\n 	<li>following up on all job referrals and matches</li>\r\n</ul>\r\n<u>Erie County Medical Ctr. Corp.</u> <em>citing </em><u>American Axle</u>.\r\n\r\n<strong><u>4.) The claimant has not produce sufficient documentation that she is actively participating in a job service used to secure work within a specific industry</u></strong>.\r\n\r\nJust like it sounds.','Labor Market Attachment Refresher','','publish','closed','closed','','labor-market-attachment-refresher','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/09/labor-market-attachment-refresher/',0,'post','',0),(46450,25,'2015-09-07 00:00:00','2015-09-07 04:00:00','Seasonal Employees Back to Work – Or Not : Part 2 on Calculating AWW\r\n\r\nWelcome to the second installment of our serial blog on the issue of Average Weekly Wages!  When we last left our intrepid hero, he had plummeted to his apparent death in the Reichenbach Falls grappling with his mortal enemy and mastermind criminal, Professor James Moriarty… wait … wrong serial … sorry.\r\n\r\nActually, when we signed off last time we left you with a quiz question to illustrate the finer points of the “multiple method” of AWW calculation with the following fact-pattern:\r\n\r\nThe C-240 filed indicated that the claimant was a four-day a week hourly worker. Out of the 52 weeks preceding his injury, the claimant work four-days a week for 36 weeks; six-days a week for 8 weeks; five-days a week for 4 weeks; three days a week for 2 weeks; two-days a week for 1 week; and 0 days for 1 week. The gross amount paid to the claimant was $28,782.88. The total number of days worked was 220 days.  There are no other facts relevant to the issue of AWW in the record.\r\n\r\nThe Board in <u>VIP Health Care Services Inc.</u>, 2015 NY Wrk. Comp. 0810813 held that the worker described above was entitled to an average weekly wage based off of a “224 multiple” after reminding the carrier that “there is no statutory authority supporting the calculation of the claimant’s average weekly wage” using a “divsor.”  In support of its ruling, the Board noted that it agreed with the carrier that the claimant “did not work substantially the whole of the year pereceidng his accident” and that the use of the 224 multiple “reasonably represents the claimant’s annual earning capacity in the year immediately before the injury.”  The keen reader will recognize that the fact-pattern her recounts on 220 days worked in the year preceding the accident and calculating out the figures specifically denoted in the decision still gives us a 220-day work-year.  How the Board Panel got 224 days is beyond comprehension given the limited analysis in the decision except the Board notes that “the carrier, by requesting a $564.37 average weekly wage, has essentially conceded a 224 multiple for the claimant in its application for review.”  Does that mean that the carrier here did its math wrong on the Application for Review?  That’s a mystery that even Mr. Holmes might not be able to solve.\r\n\r\nThe other mystery left by our first installment was the use of the 300 and 200 multiples.  When we started that post you were told that the 200, 260 and 300 multiples were the three most common methods of calculating an AWW and that drives us right into the heart of our next topic:  part-time-seasonal and sporadic workers, which generally fall under the same case-law driven analysis.\r\n\r\nWCL § 14(1) gives us the 260  multiple-method of calculation.  § 14(2) provides the option of a “similar worker” payroll (which we will get to later on in our serials) and § 14(3) is the statutory provision that gives us the starting line for today’s topic.\r\n\r\nIn the event that neither of the methods provided in WCL § 14(1) and § 14(2) can be reasonably and fairly applied, WCL § 14(3) provides that the annual average earnings shall be such sum as:\r\n\r\n<em>having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment…shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident, provided, however, [her] average annual earnings shall consist of not less than [200] times the average daily wage or salary which [s]he shall have earned in such employment during the days when so employed…</em>\r\n\r\nSection 14(3) is an archetypal legal “catchall” favored by lawmakers that, with broad stokes, closees loopholes and otherwise sets thresholds: ceilings or floors.  Although § 14(3) grants what seems to be broad discretion to set a wage without any reference to the means of calculation provided it “reasonably represent[s]” the workers’ earning capacity, it also sets a floor: <em>in no event shall an AWW work out to less than a 200 multiple.</em>\r\n\r\nWhen part-time, seasonal and sporadic workers are injured, this provision of § 14(3) is most often in play, whether the parties realize it or not.  What you may not realize, however, is that this “floor” is also subject to a massive exception that seems to be under-utilized.  Namely, the Board has held that the 200-multiple minimum can only be employed “where there has been a finding that the employee was ‘fully available’ for the employment at issue.”  <u>Matter of Pease v Anchor Motor Frgt.</u>, 158 AD2d 820 (3d Dept. 1990) <em>lv dismissed</em> 76 NY2d 772 (1990), <em>quoting</em> <u>Matter of Pfeffer v Parkside Caterers</u>, 42 NY2d 59 (3d Dept. 1977).  We’re talking Third-Department case-law here, not the more malleable and far less reliable Board Panel opinions scattered throughout our first installment.\r\n\r\nA ready example where a 200 multiple may not apply is an already-retired worker taking on a post-retirement job for a few days a week.  Provided the employer can establish that the claimant’s work-schedule was driven more by the claimant’s request for work hour than the employer’s needs or offer of work, a 200 multiple may not be applied.\r\n\r\nWhat is also very notable is that the law requires an affirmative finding that the claimant was “fully available” for more employment.  Using a 200 multiple, or even a 260 multiple for a part-time worker may be should be reversed by the Board where a finding regarding the worker’s availability is absent from the record.  <em>See </em><u>NEWSDAY, LLC</u>, 2015 NY Wrk Comp 0816290 (189 days worked with only 11 five-day weeks, imposing a 260 multiple is not warranted and case is remanded for additional proofs including testimony on claimant’s availability for work with the employer).\r\n\r\nWhen getting down to the nitty gritty of evidence, testimony from the claimant is of course vital, but so is employer testimony.  Some very recent examples of cases where a claimant was found “not fully available should illustrate this point nicely:\r\n\r\n<u>John R. Kearney, M.D., P.C.</u>, 2014 NY Wrk. Comp. 0556851:\r\n\r\nClaimant was a <em>per diem</em> employee called in when he was needed by the employer.  The employer witness testified by letter to the Court that the claimant had no set hours or schedule and that “many times the claimant did decline our offer of work” sometimes because it was on too short notice, but sometimes because the claimant didn’t like the particular assignment offered.  Claimant testified that he had never refused work from the employer, but also conceded that his job was “primarily for the purpose of supplementing his Social Security income and that he was not allowed to exceed the $10,000 supplemental income limit although he denied that this limit played any role in his work schedule.  The WCLJ found the claimant did not self-limit but the Board reversed:  <em>“Here, contrary to the statement by the employer, the claimant testified that the he did not refuse work. However, the claimant also indicated that through his employment he “probably wouldn’t have” exceeded the $10,000.00 Social Security threshold. As such, the Board Panel finds that while the claimant may not have refused work, he cannot under these circumstances be characterized as fully available for the employment in question.”</em>\r\n\r\n<u>University Of Rochester</u>, 2012 NY Wrk. Comp. 47370:\r\n\r\nClaimant’s C-240 showed a “sporadic” work pattern and that the claimant typically worked one or two days per week for 29 of the 52 weeks preceding the accident.  The claimant conceded that ” I generally worked one day a week when I was available and if they needed extra days like if someone . . . was scheduled to work and had an unexpected emergency or sick call, I would work additional shifts to fill in.” The claimant denied self-limiting her hour, but on cross she conceded that when she applied for her job she specifically sough only <em>per diem </em>work but that she specifically was hire to work one day a week and she was generally availbe to work on the other week days and that when she applied for the job she was not interested in part-time or full-time work.  The Board Panel agreed with the WCLJ that the claimant was not fully available for more work and that the 200-multiple minimum did not apply:  <em>“The claimant’s own testimony demonstrates that she had applied for and accepted per diem work. She testified that she was not interested in a full-time or more traditional part-time schedule. As noted above, the C-240 further indicates that the claimant worked sporadically during 29 weeks out of the 52-week period in question. Further, the C-240 reflects that the claimant typically worked one to two days per week during those 29 weeks.</em>”\r\n\r\n“Intermittent” employment can also be described as employment under contract for a set-term (college TAs, election workers etc.).  Specifically, workers in an election monitoring position, which generally lasts only a few days or a few weeks do not get the benefit of a 200-multiple and must instead rely on the prevailing statutory minimum.  <em>See </em><u>Matter of Jacob v Town of Glenville</u><em>, </em>43 AD2d 409 (3d Dept. 1974).\r\n\r\nMoreover, the proper analysis of whether a claimant is “self-limiting” or “available” for employment is not to be limited to the specific job in question, but instead to the labor market in general. <u>Matter of Kellish v Kellish Tire Sales, Inc.</u>, 12 AD3d 804 (3d Dept. 2004).  As such, an employer need not necessarily have made more hours available to the employee, nor must the employee have refused such an offer.  If the terms of the employment are fairly well defined by the parties, the Board (and Appellate Division) can find that an employee was “not fully available” if they did not take steps to supplement their work for the insured to fill in their empty hours/days.\r\n\r\nFor example, a claimant hired for a job that will last only a short time cannot claim “full availability” by suggesting that, had the position been of longer duration or more hours they could have worked more.  Instead, the claimant must show that he or she was looking for work outside the hours/days of the employment in question.  <em>See also </em><u>NYC Board of Election</u>, 2015 NY Wrk. Comp. 0519004; <u>Matter of Winter v. Camp Scatico</u>, 7 AD2d 812 (3d Dept. 1958)(Summer camp worker who did 10-weeks over the summer every year for six straight years not entitled to 200 multiple where he testified that he no other work because “I’m too old.).\r\n\r\nIn at least one recent case, the Board held that where the employer established that a claimant, an otherwise full-time worker, habitually took off summers to go travel outside the country, the claimant was self-limiting her employment and could not avail herself of a 200-multiple calculation because “the claimant would reap the benefit of a higher average weekly wage . . . during a time period when she typically removes herself from employment and has no wages to loss” <u>The Unity Hospital</u>, 2015 NY Wrk. Comp. 0674976.\r\n\r\nFinally, we will talk about teachers and the 10-month work-year that I personally covet (just ask my wife!).  Working 10 months of the year, and considering holidays, most teachers generate a C-240 hovering right around, but usually below, 200 days worked in the preceding work-year.  Moreover, every year they work, they are off for roughly two months.\r\n\r\nWhen one of the ‘known and recognized incidents’ of a claimant’s job is the fact that he or she is predictably laid off for several months each year, due to the nature of the particular employment, that factor should be taken into account in determining the claimant’s average annual earnings pursuant to Workers’ Compensation Law 14 .  <u>Matter of Littler v Fuller Co.</u>, 223 NY 369 (1918).  When such an employment circumstance exists, the formula outlined in Workers’ Compensation Law § 14(1), which is based on the approximate number of days worked by a five or six-day employee during an entire year, cannot ‘reasonably and fairly be applied’ to determine the claimant’s earnings . . . Accordingly, [the] average weekly wage must be calculated pursuant to subdivisions (3) and (4) of Workers’ Compensation Law 14.” <u>Matter of Till v Opportunities, Inc.</u>, 252 AD2d 619 (3d Dept. 1998).\r\n\r\nAvailability is usually not at issue in this matters because a 200 multiple or an actual multiple are generally very close, and, of course, <u>Till</u> appears to have created a case-law driven exception for teachers. Chosing a 200-multiple as against a “actual multiple” (the sly way the Board imposes divisors while still chiding us lawyers for calling it a divisor) will depend upon the number of days worked and whether the result is favorable to the claimant.  A seasonal payroll showing more than 200 days worked gets a “divisor” and less than 200 days gets the threshold multiple.  <u>Matter of Atlantic Express Escorts</u>, 2009 NY Wrk Comp 649820; <u>Floral Park-Bellerose Union</u>, 2015 NY Wrk. Comp. 1071162.\r\n\r\nWe will end on a point that many of you might be thinking about in the context of a teacher or other seasonal employee:  can the collect comp for the months/times of year where they would otherwise have been unemployed?  Can we suspend during the “off months?”\r\n\r\nThe short answer is, mostly probably not:\r\n\r\nWhere an employment is seasonal, a carrier cannot suspend compensation benefits during the summer months when the claimant would not usually be receiving wages because the averaging provisions that determine AWW spread seasonal wages over an entire year.  Having properly calculated the claimant’s average weekly wage under the statutory formula provided by <a href=\"https://thelomad.com/getmad.today/wp-contentwww.lexis.com/research/buttonTFLink?_m=4a71373fc4286b3769bffee9b62c30db&amp;_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2015%20NY%20Wrk.%20Comp.%20LEXIS%205965%5d%5d%3e%3c%2fcite%3e&amp;_butType=4&amp;_butStat=0&amp;_butNum=7&amp;_butInline=1&amp;_butinfo=NY%20WORK%20COMP%2014&amp;_fmtstr=FULL&amp;docnum=3&amp;_startdoc=1&amp;wchp=dGLzVzB-zSkAb&amp;_md5=7d957a56f4603e2ea6acfc6d96284951\" target=\"_blank\" rel=\"noopener\">WCL § 14(3)</a> and <a href=\"https://thelomad.com/getmad.today/wp-contentwww.lexis.com/research/buttonTFLink?_m=4a71373fc4286b3769bffee9b62c30db&amp;_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2015%20NY%20Wrk.%20Comp.%20LEXIS%205965%5d%5d%3e%3c%2fcite%3e&amp;_butType=4&amp;_butStat=0&amp;_butNum=8&amp;_butInline=1&amp;_butinfo=NY%20WORK%20COMP%2014&amp;_fmtstr=FULL&amp;docnum=3&amp;_startdoc=1&amp;wchp=dGLzVzB-zSkAb&amp;_md5=75bec0b2ce1d16a3c6da61614f25c57b\" target=\"_blank\" rel=\"noopener\">WCL § 14(4)</a> for calculating an employee’s average weekly wage, seasonal periods of unemployment, such as are customarily experienced by school teachers and other school district employees, are fully accounted for by using a 200 multiple, instead of the 260 multiple or 300 multiple provided by <a href=\"https://thelomad.com/getmad.today/wp-contentwww.lexis.com/research/buttonTFLink?_m=4a71373fc4286b3769bffee9b62c30db&amp;_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2015%20NY%20Wrk.%20Comp.%20LEXIS%205965%5d%5d%3e%3c%2fcite%3e&amp;_butType=4&amp;_butStat=0&amp;_butNum=9&amp;_butInline=1&amp;_butinfo=NY%20WORK%20COMP%2014&amp;_fmtstr=FULL&amp;docnum=3&amp;_startdoc=1&amp;wchp=dGLzVzB-zSkAb&amp;_md5=26730495bb8eb27dee66bf357766c397\" target=\"_blank\" rel=\"noopener\">WCL § 14(1)</a> for full time, year round five or six day workers. If the employee was denied compensation benefits during the summer months, the fact that a claimant was not regularly employed during that time period would be accounted for twice; once in the calculation of average weekly wage, and then again in determining the compensable periods of disability. Thus, even if the claimant did not work during the summer months immediately preceding the injury of this file, the claimant would be entitled to compensation benefits during the summer months.\r\n\r\n<u>Mt. Vernon Central School</u>, 2015 NY Wrk. Comp. 0774783; <u>Marlboro CSD</u>, 2015 NY Wrk. Comp. 0977561; <u>Floral Park-Bellerose Union</u>, 2015 NY Wrk. Comp. 1071162.','Summer is Almost Over!','','publish','closed','closed','','summer-is-almost-over','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/09/summer-is-almost-over/',0,'post','',0),(46478,25,'2015-08-23 01:41:29','2015-08-23 05:41:29','COMPLIANCE MONITORING, AKA “CLAIMS HANDLING PERFORMANCE” – THE BOARD IS WATCHING YOU PART I\r\n\r\nThe board has created a new Monitoring Unit with a stated mission of promoting excellence and claims handling practices and to provide system participants in the general public with information as to claims handling performance.\r\n\r\nRole of the Board’s newly created Monitoring Unit which will be monitoring the following\r\n<ul>\r\n 	<li>Timeliness of the First Report of Injury (FROI)</li>\r\n 	<li>Timeliness of Initial SROI showing Initial Payment</li>\r\n 	<li>Timeliness of Initial Payment of Compensation</li>\r\n 	<li>Timeliness of Controversy</li>\r\n 	<li>Percentage of Claims Controverted</li>\r\n</ul>\r\n<strong><u>Timeliness of the First Report of Injury (FROI)</u></strong>\r\n\r\nWCL § 110(2):\r\n\r\nAn employer…shall file with the..board and with the carrier if the employer is insured, upon a form prescribed by the chair, a report of any accident resulting in personal injury which has caused or will cause a loss of time from regular duties of one day beyond the working day or shift on which the accident occurred, or which has required or will require medical treatment beyond ordinary first aid or more than two treatments by a person rendering first aid…\r\n\r\nThis is the C-2F.\r\n\r\nRule 300.22 also requires a FROI:\r\n\r\nThe First Report of Injury, FROI, must be filed electronically:\r\n\r\nOn or before the 18th day after the <strong>disability event</strong> or within 10 days after the employer has knowledge of the <strong>disability event,</strong> whichever period is the greater\r\n\r\n300.22(a)(1) defines “disability event”\r\n\r\n…any accident, including death resulting therefrom, occurring in the course of employment or any alleged accident, including death resulting therefrom, that results in personal injury which has caused or will cause a loss of time from regular duties of one day beyond the working day or shift on which the accident or alleged accident occurred, or which has required or will require medical treatment beyond ordinary first aid or more than two treatments by a person rendering first aid; or any disease or alleged disease, including death resulting therefrom, claimed to have been caused by the nature of the employment and contracted therein.\r\n\r\nThe Board will only be measuring timeliness of the FROI on <strong><u>lost time claims</u></strong> and is interpreting the time limitations from 300.22 as giving up to the <strong><u>GREATEST</u></strong> following to file the FROI when there is lost time:\r\n<ul>\r\n 	<li>18 days from Date of Accident</li>\r\n 	<li>10 days from Date Employer had Knowledge of Injury</li>\r\n 	<li>10 days from Initial Date of Disability,</li>\r\n</ul>\r\nHence on lost time cases it appears that the Board will not be finding a FROI untimely if the claim results in lost time and the FROI is filed within 10 days of when the employer knew there was lost time even though it might be filed more than 18 days after the disability event or more than 10 days after the employer knew that the injury was going to “require medical treatment beyond ordinary first aid or more than two treatments by a person rendering first aid.”\r\n\r\nThe fields on the FROI that capture these dates are:\r\n<ul>\r\n 	<li>DN0040 Date Employer Had Knowledge of the Injury and</li>\r\n 	<li>DN0281 Date Employer Had Knowledge of Disability.</li>\r\n</ul>\r\nIt also appears that the Board will impute knowledge based on the filing of a Notice of Case Assembly and Notice of Indexing.\r\n\r\nHere is the math measured from the received date of the FROI:\r\n<ul>\r\n 	<li>Date Of Accident + 18 Days;</li>\r\n 	<li>DN0040 Date Employer Had Knowledge of the Injury + 10 Days;</li>\r\n 	<li>DN0281 Date Employer Had Knowledge of Disability + 10 Days;</li>\r\n 	<li>Assembly Notice Date + 10 Days;</li>\r\n 	<li>Index Notice Date + 10 Days;</li>\r\n 	<li>DN0056 Initial Date Disability Began + 10 Days.</li>\r\n</ul>\r\nThe latest of these days will be used to determine of the FROI is timely.\r\n\r\n<strong>PRACTICE TIP:  “Disability” should be narrowly construed.</strong>','Claims Handling Performance','','publish','closed','closed','','claims-handling-performance','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/?p=46478',0,'post','',0),(46479,25,'2015-08-10 00:00:00','2015-08-10 04:00:00','<strong>Test Your NY Workers’ Compensation Chops</strong>\r\n\r\n<strong>As promised, here are the answers to the quiz posted last week.  How did you do?  Do you have M.A.D. skills?</strong>\r\n\r\n1.  What is the Special Funds WCL § 15(8)(d) reimbursement form and what are the time frames for seeking reimbursement once WCL § 15(8)(d) is established?\r\n<ul>\r\n 	<li>C-251 is the request for reimbursement</li>\r\n 	<li>When § 15(8) is established the carrier has one year from the date of establishment to submit a claim for all post 260 week benefit</li>\r\n 	<li>Thereafter, Carrier pays and then submits reimbursement every six months if requesting reimbursement</li>\r\n 	<li>Claims are not allowed if it is for an illegally employed minor.</li>\r\n</ul>\r\n2.  What is the percentage of medical impairment for a claimant whose provider has opined a class II severity E impairment?\r\n<ul>\r\n 	<li>33% medical impairment. <em>See</em>, <u>Nastasi &amp; Associates Inc.</u>, 2014 NY Wrk. Comp. 0005952, 2014 NY Wrk. Comp. LEXIS 5088 (NY Wrk. Comp. 2014) the Board specifically noted that<strong> “</strong>an E lumbar spine permanent impairment severity ranking . . . equates to a 33.33% medical impairment . . .pursuant to theMedical Impairment Severity Crosswalk.”)</li>\r\n</ul>\r\n3.  What are the three exceptions to written notice under WCL § 18?\r\n<ul>\r\n 	<li>There was no reason for failing to provide timely notice;</li>\r\n 	<li>The employer had actual knowledge of the event; and</li>\r\n 	<li>There was no prejudice to the employer due to the lack of notice.</li>\r\n</ul>\r\n4.  When do the medical treatment guidelines apply?\r\n<ol>\r\n 	<li>When claimant lives in state and the doctor treats in state?</li>\r\n 	<li>When claimant lives out of state and the doctor treats in state?</li>\r\n 	<li>When claimant lives in state and the doctor treats out of state?</li>\r\n 	<li>When claimant lives out of state and the doctor treats out of state?</li>\r\n</ol>\r\n<ul>\r\n 	<li>a, b, and c.</li>\r\n</ul>\r\n5.  What is needed in a Chiropractor’s report for there to be a well-documented exacerbation to allow for treatment in the absence of a variance?\r\n<ul>\r\n 	<li>When and how the exacerbation occurred;</li>\r\n 	<li>Objective changes from the baseline function;</li>\r\n 	<li>Expected type and frequency of treatment believed necessary to return the patient to baseline function; and</li>\r\n 	<li>The response to treatment through measures of objective functional improvement.</li>\r\n</ul>\r\n6.  Under what circumstances can a carrier deny a variance without contrary medical evidence?\r\n<ul>\r\n 	<li>Not an established injury site;</li>\r\n 	<li>Burden of proof not met</li>\r\n 	<li>Substantially similar request</li>\r\n</ul>\r\n7.  If the carrier commences payment of temporary compensation, how much time do they have to electronically file a notice of controversy before they would be deemed to have admitted liability for the claim and a decision would be issued establishing the claim?\r\n<ul>\r\n 	<li>Within one year from the commencement of payment.</li>\r\n</ul>\r\n8.  An IME report must be filed within 10 business days after the examination with the Board. Does a holiday within the period count as a business day and does only a holiday that falls on the 10<sup>th</sup> day count as a holiday that requires that the IME report be submitted on the next business day?\r\n<ul>\r\n 	<li>A holiday is not a business day.</li>\r\n</ul>\r\n9.  If the claim is not controverted, when is a SROI late and what is the penalty?\r\n<ul>\r\n 	<li>The 18/10/ day rule: Pay and report to chair within 18 days of disability or 10 days after employer first has knowledge of the alleged accident, which ever period is greater. Failure to comply will result in a penalty of $50 pursuant to §25(3)(e).</li>\r\n</ul>\r\n10.  What is the significance of the filing of notice of indexing?\r\n<ul>\r\n 	<li>If the claim is going to be controverted, it must be controverted no later than within 25 days of the filing of the notice of indexing.</li>\r\n</ul>\r\n11.  When the employer or carrier is under a direction to continue payments to the claimant following a hearing or issuance of a decision pursuant to rule 300.23, it is permissible to suspend benefits without a hearing under certain circumstances. True or false?\r\n<ul>\r\n 	<li>Normally the carrier has to file an RFA-2 notice to suspend/reduce accompanied by supporting evidence.  Copy to claimant/his/her attorney/licensed representative within 1 day if submitted electronically to Board.</li>\r\n</ul>\r\n<ul>\r\n 	<li>The Rule provides 4 exceptions when payments can be suspended without a hearing.</li>\r\n</ul>\r\nNotwithstanding any provision to the contrary in this subdivision, the employer or carrier upon the filing of an electronic notice as prescribed in section 300.22(f) of this Part may suspend or reduce such payments:\r\nWhere a notice of return to work, or other written substantial legal evidence of claimant’s return to work, has been submitted to the board in the format prescribed by the chair together with or on the same day that the notice to suspend or reduce is electronically filed; or\r\nWhere the supporting evidence submitted to the board in the format prescribed by the chair together with or on the same day that the notice to suspend or reduce is electronically filed includes payroll records for at least two calendar weeks which warrant such suspension or reduction; or\r\nWhere the claimant’s medical evidence indicates that the claimant has no disability. When such medical evidence is not part of the official board file, it shall be submitted to the board in the format prescribed by the chair together with or on the same day that the notice to suspend or reduce is electronically filed; or\r\nWhere supporting evidence submitted to the board in the format prescribed by the chair together with or on the same day that the notice to suspend or reduce is electronically filed includes proof of incarceration upon conviction of a felony.\r\n12.  How are actual reduced earnings calculated?\r\n<ul>\r\n 	<li>(AWW – RTW wages) * 2/3 not subject to the minimum.</li>\r\n</ul>\r\n13.  When can MMI be determined?\r\n<ul>\r\n 	<li>In cases that do not involve surgery or fractures, MMI cannot be determined prior to 6 months from the date of injury or disablement, unless otherwise agreed to by the parties.</li>\r\n</ul>\r\n14.  How long does a self-insured employer have to make the mandatory deposit into the ATF following classification with a PPD for a claim with a date of accident after 7/1/07?\r\n<ul>\r\n 	<li>None because self-insureds do not have to make payment into the ATF.</li>\r\n</ul>\r\n<strong>Oh ho!  A trick question at the end!  Hope you enjoyed brushing up on/confirming your comp chops.</strong>','Answers to the Quiz','','publish','closed','closed','','answers-to-the-quiz','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/08/answers-to-the-quiz/',0,'post','',0),(46480,25,'2015-08-07 00:00:00','2015-08-07 04:00:00','Average Wages?  Cost-Containment by Controlling the Fundamentals\r\n\r\nThis posting began with the goal of presenting a simple primer on calculating average weekly wages.  We spend a great deal of time looking for cost-containment and mitigation measures in every claim that crosses our desks, and sometimes the fundamentals, like AWW, are the best place to start reigning in costs.\r\n\r\nSimple enough of a topic, right?  Well, after writing for a while, and then writing some more, it became clear that this issue, like almost every issue in New York workers’ compensation claims may be basic, but it nevertheless carries around a lot of baggage in the form of rules, exceptions to rules, unique circumstances and even sometimes exceptions to exceptions of rules.  The legal aspects of calculating and setting an AWW don’t fit into a neat box, and the topic sprawls without any hope of control.\r\n\r\nWe changed gear and, like the serials of the 1900s, we intend to present this issue in installments throughout the year beginning with basic calculations (today) and moving on to part-time, seasonal and sporadic workers, including teachers with known and regular periods of unemployment (summers off!) and then moving into vacation pay and holiday pay, similar workers and their payrolls, concurrent employment, and ending with Minor’s Wage Expectancy.  We hope you enjoy!\r\n~\r\nThe Average Weekly Wage (“AWW”) is one of the most basic, and often-times overlooked findings made in a workers’ compensation claim.  Given the skyrocketing maximum rates, huge schedule awards and, of course, the often-present ATF deposit, controlling and minimizing an average weekly wage findings can pay dividends down the road when benefits are awarded in periods of weeks, months or even years.\r\n\r\nMy elementary school math classes tell me that to average a dataset, we take the gross value of that dataset and divide by the number of data points: simple addition and division.  Could you imagine something so basic, or rational, making its way into New York law?  I certainly can’t, and of course that’s not what we’ve got here.  But let’s take a half-step back before hurtling into a political commentary.\r\n\r\nFrom a claims handling perspective, the jumping-off point for calculating an AWW is always a C-240.  This ubiquitous form shows up in nearly every claim before the Board:\r\n\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/forms/c240.pdf\" target=\"_blank\" rel=\"noopener\">https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/forms/c240.pdf</a>\r\n\r\nExperienced claims-handlers will tell you that obtaining a C-240 can sometimes be a slow and painful process, and obtaining a fully-completed form can oftentimes be impossible.\r\n\r\nForm C-240 requires not only gross yearly wage, as well as the weekly wages for each of the 52 weeks preceding the accident, it also requires a weekly tally of “days worked” which, as we will see, is the basic metric for calculating an AWW.\r\n\r\nUnder WCL § 14, a claimant’s wage is calculated using a “multiple” method of averaging a claimant’s wages by using the wage data provided by the employer/carrier to first determine a claimant’s average daily wage.  Once the daily wage is established, a “multiple” is selected from among the three available depending upon the “type” of worker in question.\r\n\r\nWCL § 14(1) states that if a worker was hired to work 6 days a week, than his or her daily wage is to be multiplied by 300 and then 1/52 of that wage is to be calculated (under WCL §14(4)) to generate the correct AWW.\r\n\r\nTo those of you who have seen AWWs set by “divisor” and who may be asking “what is this multiple nonsense?”  the Board has taken great pains to repeatedly, and often with overtones of frustration, remind us that “there is no provision under WCL § 14 to calculate a claimant’s average weekly wage by using straight division of a claimant’s gross yearly earnings by the number of weeks worked.”  <u>Atlantic Express,</u> 2014 NY Wrk Comp. 0728592.\r\n\r\nDespite this admonition, the Board has repeatedly utilized WCL § 14(3) to generate AWWs which, mathematically, match the use of a divisor.  WCL § 14(3) permits the calculation of an AWW “based on the claimant’s previous earnings . . . during the year before the injury”  if the use of a multiple “cannot be fairly applied.”  For example, in <u>Waterfront Health Care</u> <u>Center</u>, 2014 NY Wrk. Comp. 0601971 the AWW was set, over the carrier’s objection, using a 260 multiple.  On appeal, the carrier argued that the use of a 260 multiple artificially inflated the claimant’s average weekly wage rendering a 260 multiple an “unfair” representation of the claimant’s earnings.  Ruling for the carrier on appeal, the Board Panel invoked WCL § 14(3) to institute a “205-day multiple” which just-so happened to be the exact number of days worked by the claimant on her C-240.  Applying this multiple, then applying the 1/52 provision of WCL § 14(4) resulted in an AWW identical to the AWW obtained by using a 52-week divisor.\r\n\r\nAt this point you must be asking (because I’m asking it myself all the time!) what does all this nonsense about multiple have to do with keeping workers’ compensation costs down?  The simple answer is: sometimes everything.  Calculating an AWW using a daily-rate multiple can artificially inflate, or deflate, a claimant’s AWW in an ironic way.  A typical 5-day a week worker, if he worked 5-days a week for the entire year, would work 260 days.  However, most 5-day workers take a vacation, get sick leave, bereavement, you name it.  The result?  They work less, and sometime far less, than 260 days in the year preceding their accident, but they benefit from their time off when the file a comp claim.  And if they do file that claim, you’re going to pay for those 260 full days anyway when the AWW is calculated unless you take steps to defend yourself.  The opposite is true for the worker who manages to put in more than his or her 260 days, they actually lose credit for those days using a multiple calculation.  Let’s look at a common example:\r\n\r\nEmployee A, a five-day worker, is injured on the job, and in the 52 weeks preceding the accident she worked 237 days and earned $35,000.00.  To use a 260 multiple, we would first calculate a daily wage ($35K/237 days) which is $147.68.  We then multiple that daily wage by 260 to generate an adjusted gross yearly wage of $38,396.80 and; then divide by 52 to generate an AWW of $738.40.\r\n\r\n<em>Employee A is getting an average weekly wage that is premised on an annual income here that is artificially (mathematically) inflated by crediting the claimant for some 23 days of work (and extra $3,396.64)  that he simply didn’t perform and he simply didn’t earn</em>.  Imposing a straight divisor (or WCL § 14(3)) on the same facts generates an AWW of $673.08.\r\n\r\nThe increase in an employer/carrier’s exposure to Employee A is an increase in the effective maximum rate of $43.55/week.  In the long run, this difference can be substantial.  Just take a look at the costs added to the claim of Employee A by this increased effective rate in several very common case results:\r\n\r\nModerate Permanent Partial Disability :  Increased Exposure of $6,532.50\r\n\r\n25% Schedule Loss of Use of an Arm:  Increased Exposure of $3,396.90\r\n\r\n25% Schedule loss of Use of a Leg: Increased Exposure of $3,1365.60\r\n\r\nIf you aggregate the benefits awarded across an entire desk of claims, the enhanced exposure of a miscalculated or unfavorable AWW calculation can be potentially staggering.  What’s more, exposure on a week-to-week basis for all awards of temporary disability (not counted as a credit against an ultimate PPD award) will add to a carrier/employer’s exposure.\r\n\r\nSo, if we’re going to be using this multiple-method of averaging wages, how do we know which method to use?  How can we use the method most beneficial?  Not all workers neatly fit into three categories of workers considered under WCL § 14 and, we want to keep the rates as low as reasonably possible.\r\n\r\nMany of you might jump to form C-240, which carries a nifty reference for guiding employers and carriers about which method of calculation they should use:\r\n\r\n<img src=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2015/08/poop.png\" />\r\n\r\nDon’t be fooled into thinking there is some legal basis for these “instructions.”  Neither the WCL, nor the entire Code of Rules and Regulations make any reference to any of the figures or guideposts.  The threshold of 234 days for a 5-day worker is not a creature of statute, and the best we can say is that it is a guideline followed by Board case law; but as with so much case law published by the Board, there is little pattern to their application of these “instructional” figures.  <em>See</em> <u>Matter of New Era Cap</u>, 2007 NY\r\n\r\nWrk Comp 80600990; <em>citing</em> <u>Matter of Wegmans Food Markets, Inc.</u>, 2006 NY Wrk Comp 70410307.\r\n\r\nWhat the Board can, and oftentimes does, do, is look deeper into the claimant’s wage statement to see if the claimant’s pattern of employment matches the schedule of a five-day or six-day worker.  Usually, and as you might expect, this deeper analysis predominantly gives the claimant a benefit, and the Board has disregarded its own guidelines to grant a 260 multiple to workers who didn’t even come close to their own guidelines.  <u>New Era Cap</u>, 2007 NY Wrk Comp 80600990 (223 days worked gets a 260 multiple); <u>Matter of Carrier Coach Inc.</u>, 2008 NY Wrk Comp 80702783 (226 days gets a 260 multiple);<u> Norampac Industries</u>, 2014 NY Wrk. Comp. 0605684 (216 days gets a 260 multiple).\r\n\r\nIn each of these cases the Board’s analysis turned on the number of five-day, four-day, three-day etc. weeks worked by a claimant.  In <u>Norampac</u>, for example, the Board reported that the claimant’s payroll showed 29 “five-day” weeks, 13 “four-day” weeks and 4 “three-day weeks” while the balance of the payroll was absence due to disability or vacation.  The Board held that “clearly the majority of the weeks worked by the claimant during the year preceding his work accident were five-day weeks” and imposed a 260 multiple.\r\n\r\nOkay, so that’s admittedly a lot of case law, and you’re eyes might be glazing over; but don’t leave yet.  All that law was cited to illustrate the point that AWW is an issue literally chocked-full of exceptions, unique circumstances and oftentimes contradictory results.  In 2014 alone the Board reviewed and ruled on the issue of AWW in no fewer than 80 decisions and through August of 2015 another 47 decisions have been published.\r\n\r\nIn our next installment we’ll cover part-time, seasonal and sporadic workers and the so-called “200-multuiple minimum” method of calculation.  For now, we leave you with a quiz based on one of the Board’s more recent rulings.  Which method of calculation should apply here?\r\n<em>The C-240 filed indicated that the claimant was a four-day a week hourly worker. Out of the 52 weeks preceding his injury, the claimant work four-days a week for 36 weeks; six-days a week for 8 weeks; five-days a week for 4 weeks; three days a week for 2 weeks; two-days a week for 1 week; and 0 days for 1 week. The gross amount paid to the claimant was $28,782.88. The total number of days worked was 220 days.  There are no other facts relevant to the issue of AWW in the record. </em>\r\nIf you can’t wait until the next installment for the answer, <em>see</em> <u>VIP Health Care Services Inc.</u>, 2015 NY Wrk. Comp. 0810813.','Average Wages?','','publish','closed','closed','','average-wages','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/08/average-wages/',0,'post','',0),(46481,2461,'2021-08-18 01:41:56','2021-08-18 05:41:56','','poop','','inherit','closed','closed','','poop','','','2021-08-18 01:41:56','2021-08-18 05:41:56','',46480,'/wp-content/uploads/sites/1503150/2015/08/poop.png',0,'attachment','image/png',0),(46482,25,'2015-08-05 00:00:00','2015-08-05 04:00:00','WE NOW HAVE THE NON-ACUTE PAIN TREATMENT GUIDELINES BUT WHAT DOES THAT MEAN?\r\n\r\nYou may be asking, why would the implementation of the Non-Acute Pain Treatment Guidelines even matter?  Why would you want to ensure a pain management treatment provider comes into compliance with the Non-Acute Pain Guidelines?  The answer is easy – it matters because of the cost.\r\n\r\nSignificantly, the Workers Compensation Research Institute (WCRI) reported in its publication <u>Interstate Variations In The Use Of Narcotics</u>, Second Edition, following an investigation of 25 states, that it found that New York and Louisiana had the highest amount of narcotic use within Workers’ Compensation cases.<a href=\"#_ftn1\" name=\"_ftnref1\">[1]</a>   A July 2014 report by the CDC indicates that each day 46 people die from an overdose of prescription painkillers in the United States.<a href=\"#_ftn2\" name=\"_ftnref2\">[2]</a>  Finally, as reported by the CDC in 2007, the costs of opioid abuse totaled “about $55.7 billion with 46% attributable to workplace costs (i.e. lost productivity), 45% to healthcare costs (i.e. abuse treatment), and 9% to criminal justice costs.” <a href=\"#_ftn3\" name=\"_ftnref3\">[3]</a>  Even the introduction to the Non-Acute Pain Guidelines indicates that the Guidelines were drafted in response to the dramatic increase in use of opioids to treat chronic non-cancer pain.  The significant cost of opioid medications is not only borne by carriers, but also by claimants.  The medication itself is expensive, the risks of use of these medications are significant; add to that the possibility of overdose, and the personal and financial costs become immeasurable.  All of these reasons fashioned the backdrop for the implementation of the Non-Acute Pain Treatment Guidelines.\r\n\r\nInitially, case files should be reviewed to determine whether or not a particular claimant is being treated for acute pain (treatment following an injury or surgery) or non-acute pain (pain that lasts longer than what would be considered normal healing).\r\n\r\nIf the claimant is currently being treated for acute pain, treatment is governed by the body-site-specific Medical Treatment Guideline.  By way of example, when the claimant undergoes a lumbar surgical procedure, Medical Treatment Guidelines for the low back provide that narcotics should be primarily reserved for the treatment of severe back pain with the optimum duration of 3 to 7 days and a maximum duration of two weeks, with use beyond this period only in appropriate cases and any use beyond the maximum two weeks should be documented and justified based on the diagnosis and/or invasive procedures.  <em>See</em>, <u>New York State Workers’ Compensation Board, Mid And Low Back Injury Medical Treatment Guidelines</u>, Third Edition, September 15, 2014, Section D.7.g.  Pursuant to section D.7.g.i, routine use of opioids for acute, subacute, or chronic pain is not recommended.  However, the Guidelines do provide for limited use of opioids in acute situations when there is severe pain and, in conjunction, two or more efficacious treatment modalities.  <em>See</em>, § D.7.g.ii.  Finally, the body-site-specific Medical Treatment Guidelines specifically address when discontinuation is appropriate with one of the factors noted to be use beyond two weeks.  See, § D.7.g.ii.  The body-site-specific Guidelines also reference brief use following postoperative pain management, but again, note that use beyond 2 to 3 weeks for minor procedures, and 6 weeks for extensive surgical procedures, is the outside limit for use of opioids to treat acute pain.  <em>See</em>, § D.7.g.iii.\r\n\r\nBased upon the body-site-specific Medical Treatment Guidelines, pain management that lasts longer than 2 weeks in nonsurgical claimants, 2 to 3 weeks in minor surgical claimants, and 6 weeks for invasive surgical candidates would be governed by the Non-Acute Treatment Guidelines.  Arguably, there is a gray area for the few week period following the outer limits of allowed treatment based upon the provision in § D.7.g stating, “use beyond two weeks is acceptable in appropriate cases.”  Any use beyond maximum should be documented and justified based on the diagnosis and/or invasive procedures.”  However, once you reach the specific outer limits of the acute treatment phase, the treating provider that is prescribing the opiates should be contacted by written correspondence and advised that compliance with the Non-Acute Pain Treatment Guidelines is required.\r\n\r\nThis correspondence to the prescribing provider should be copied to all necessary parties and the Workers’ Compensation Board so there is compliance with WCB Subject No. 046-124 (November 24, 2003), which provides in relevant part, as follows:\r\n<blockquote>“Guidelines for Communications with Health Care Professionals”\r\nIn addition to strictly complying with the requirements of WCL § 13-a(6), 137(1)(b) and (c) and Board Rule 300.2(b)(11), parties and their representatives should make every effort to avoid even the appearance that they are attempting to influence the opinion of a health care professional.  Contact with health care professionals should be limited to relevant inquiries pertaining to a claimant’s condition and treatment.  Questions should be carefully crafted so as not to be ambiguous or suggest the response desired.\r\nAlso, to avoid even the appearance that they are not acting in good faith, parties and their representatives are required to send a copy of any written communication with a health care professional to the opposing parties and their legal representative.\r\n\r\nWCB Subject No. 046-124.</blockquote>\r\nTo ensure compliance with all appropriate statutory provisions, be sure to copy all necessary parties to the action (claimant, claimant’s counsel, Workers’ Compensation Board, etc.) and request information related to the provider’s pain management treatment being rendered.  To this end we recommend a few paragraphs addressing:\r\n<ul>\r\n 	<li>Who you are and why you’re writing the letter (demand the claimant’s treatment be brought into compliance with the Non-Acute Pain Medical Treatment Guidelines);</li>\r\n 	<li>Brief explanation of the Non-Acute Pain Guidelines, their effective date, and where the doctor can locate the Guidelines on the Board’s website;</li>\r\n 	<li>The specific provisions regarding existing prescriptions being brought into compliance with the new Guidelines (§ F.2.b.i), and the requirements for an examination under the new Guidelines (D.1 <em>et seq</em>.); and,</li>\r\n 	<li>A specific request that the next scheduled visit be a full assessment pursuant to the Non-Acute Pain Guidelines, and indicate that failure to comply will result in objections to the visit bill, as well as the prescribed medications, as allowed pursuant to Workers’ Compensation.</li>\r\n</ul>\r\nNow comes the fun part – you’ve sent your letter to the treating provider requesting compliance with the Non-Acute Pain Medical Treatment Guidelines and you’ve received your first billed treatment from that provider since your letter was sent.  So, it’s time to review the medical report for compliance with the Non-Acute Pain Guidelines.\r\n\r\nInitially, all providers, whether treating a claimant who has been prescribed opioid medications for the last 20 years or treating a newly injured claimant with pain management, are required to bring claimants into compliance with the Non-Acute Pain Guidelines.  <em>See</em>, Section F.2.b, New York State Workers’ Compensation Board, New York Non-Acute Pain Medical Treatment Guidelines, First Edition, September 15, 2014.  This is important because an objection can be filed to the treatment and the continuing medications based upon the provider’s failure to comply with the Non-Acute Pain Medical Treatment Guidelines.  However, it is important to keep in mind that the Guidelines do not provide for complete cessation of opioids, but rather a transition of the claimant’s prior medication regime to one that is in compliance with the standards of the Non-Acute Guidelines.  <em>See</em>, § F.2.b.i.  As such, although you can raise issue to continued medications by filing the appropriate objection, you cannot just stop payment of these medications in the absence of a judicial order.  (<strong><em>Practitioner’s point:</em> </strong>At this point, objections can be made to the doctor’s bill for noncompliance with the Non-Acute Pain Medical Treatment Guidelines, as well as any script the claimant seeks to fill following this appointment, if the provider has not indicated whether the treatment is for acute or non-acute pain.)\r\n\r\nSo, with that, we begin our review of the provider’s medical report to determine whether the provider is in compliance with the Non-Acute Pain Treatment Guidelines.  Initially, the provider is required to perform a medical evaluation that consists of three components: 1) history taking and physical examination; 2) personality/psychological and psychosocial; and, 3) diagnostic studies.\r\n\r\nWhen reviewing the medical report for the history taking and physical examination, the doctor should address: 1) pain history, history of present illness; 2) past medical history; and, 3) conduct a physical examination.  <em>See,</em> § D.1, <em>et seq</em>.  The Guidelines specifically state, “medical records should document the following,” and then layout 16 criteria for pain history and history of present illness – 13 criteria for past medical history and 9 criteria for the physical examination.  Based upon the specific language in the Guidelines that, “the medical records <strong><u>should</u></strong> document the following,” the provider should comment on substantially all of the criteria within his or her report.  (<strong><em>Practitioner’s point:</em></strong> At this point, objections can be made to the doctor’s bill for noncompliance with the Non-Acute Pain Medical Treatment Guidelines, as well as any script the claimant seeks to fill following this appointment, if the provider fails to document the required criteria.)\r\n\r\nWhen reviewing the medical report for personality/psychological and psychosocial, the Guidelines state, “a psychiatrist or psychologist should perform a clinical evaluation, which includes” a history of the injury (nine separate criteria); health history (five separate criteria); psychosocial history (11 separate criteria); mental status exam; assessment of danger posed to self or others; test results from psychological testing if same are performed; current psychiatric diagnosis; pre-existing psychiatric conditions; and treatment recommendations with “specific goals, frequency, time frames, and expected outcomes.”  <em>See</em>, § D.2.a.  The Guidelines even go so far as to make recommendations in Appendix B for specific psychometric testing to assist in a patient assessment.  (<strong><em>Practitioner’s point:</em></strong> At this point, objections can be made to the doctor’s bill for noncompliance with the Non-Acute Pain Medical Treatment Guidelines, as well as any script the claimant seeks to fill following this appointment, if the provider fails to document the required criteria.)\r\n\r\nWhen reviewing the medical report for diagnostic studies, obviously existing tests should be referenced, or recommendations for further testing stated, pursuant to the body-site-specific Medical Treatment Guidelines.  <em>See</em>, § D.3.  (<strong><em>Practitioner’s point:</em></strong> At this point, objections can be made to the doctor’s bill for noncompliance with the Non-Acute Pain Medical Treatment Guidelines, as well as any script the claimant seeks to fill following this appointment, if the provider fails to document the required criteria.)\r\n\r\nOnce the provider has properly done a full evaluation, the provider should state what method of treatment the provider plans to pursue, i.e. nonpharmacological, pharmacological, or surgically-implanted pain control.\r\n\r\nEach of the above treatment options is specifically governed by the Non-Acute Pain Treatment Guidelines with specific requirements for goals, frequency, time frames, and expected outcomes.  For the sake of brevity, these will not be restated herein, but should be referenced for each specific treatment a provider wishes to pursue per the Non-Acute Pain Treatment Guidelines.\r\n\r\nSome significant changes made by the Guidelines are that nutraceuticals (vitamins), topical, oral, and/or systemic compound medications are not recommended.  Moreover, the Guidelines make clear that brand-name drugs have no proof of increased efficacy over those of generic.  Skeletal muscle relaxants are not recommended unless for acute treatment, and hypnotics and sedatives are generally not recommended.  (<strong><em>Practitioner’s point</em></strong>: if the doctor seeks to treat with any of these, a variance will be required.  If the provider fails to submit a variance, same can be denied outright as not within the Guidelines.)\r\n\r\nA significant change to the Guidelines is that when considering opioid use in an opioid-naïve patient, certain criteria <u>must</u> be met before an opioid trial can be commenced.  The patient must fail pain management alternatives before opioids can be considered.  Specifically, § F.2.a.iv states:\r\n\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2015/08/pic-1.jpg\"><img src=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2015/08/pic-1-300x115-1.jpg\" alt=\"pic 1\" /></a>\r\n\r\nAs such, in the situation of a new-to-opiates claimant, there must be failed pain management alternatives attempted by the provider prior to moving to pharmacological treatment with opioid medications.  (<strong>Practitioner’s point</strong>: Failure of the provider to make such a showing, or if the claimant has not undergone appropriate alternatives, an immediate objection to the billed treatment and an objection to any attempt to fill opioid medication should be filed.)\r\n\r\nIf the claimant has undergone pain management alternatives which have been unsuccessful and opioid medications are pursued, a trial is to be conducted.  <em>See,</em> § F.2.  A trial lasts 30 to 60 days, at which time there is to be demonstrated sustained improvement in function and pain with the patient monitored weekly.  The goal is a 30% reduction in pain, return to work, an increase in activities of daily living, no significant adverse side effects, and no aberrant drug-related behaviors.  <em>See</em>, § F.2.a.ii.  Significantly, this section makes clear that if the goals are not met within the 30 to 60-day period, the trial should be discontinued and opioids tapered/discontinued and an alternative approach taken to treating the pain.  The Guidelines further make clear that discontinuance should be done as soon as it becomes clear the patient is not responding to the treatment modality and that there is no requirement of a full 60-day trial period.  (<strong><em>Practitioner’s point</em></strong>: If the reports do not demonstrate improvement using the criteria noted above, an objection to treatment should be filed and the carrier should push for discontinuance/tapering if no improvement is demonstrated.)\r\n\r\nWhen a provider considers an opioid trial, they must determine the opioid risk for that particular patient by utilizing Table 2 at page 41 of the Guidelines.  The risk assessment consists of five questions, which yield a score depending on the answers.  That score creates a claimant’s risk assessment for opioid use.  Importantly, if the doctor is considering an opioid trial or even continued use of opioids in a patient that is being brought into compliance with the Non-Acute Guidelines, the assessment should be referenced in the provider’s medical report.  (<strong>Practitioner’s point</strong>: Failure to provide the opioid risk assessment in the medical report would be a proper basis to file an objection to the treatment and deny any opioid medication claimant attempts to fill per that evaluation/provider.)\r\n\r\nThe Guidelines also require that the patient complete a “Patient Informed Consent for Opioid Treatment Form” contained at Appendix F, which is signed by both the patient and the doctor.  Additionally, the Guidelines require the “Patient Understanding for Opioid Treatment Form” contained at Appendix G, which is again signed by the patient and the physician.  These forms are both required documents per the Non-Acute Pain Treatment Guidelines.  As these are Board-required forms, these forms should be filed with the Workers’ Compensation Board at the time the provider seeks to begin the opioid trial or continue opioid medications for a claimant being brought into compliance with the Guidelines.  (<strong>Practitioner’s point</strong>: A provider’s failure to submit one or both of these forms would be a proper basis to file an objection to the treatment and deny any opioid medication claimant attempts to fill per that evaluation/provider.)\r\n\r\nThere should also be indication in the report that I-STOP (NYS Internet System for Tracking Over-Prescribing-Prescription Monitoring Program).  This is as simple is indicating that I-STOP/PMP was consulted.  A provider, as of August 27, 2013, when writing prescriptions for schedule II, III, and IV controlled substances, is required by New York State to consult and report medications in these classes which are being prescribed.\r\n\r\nIf a trial is effective, the provider can then begin the transition from trial to long-term treatment with opioid medications.  At the time of the transition from trial to long-term use, a full reassessment/reevaluation is to be completed.  The failure of the provider to do a reassessment/reevaluation would be a valid basis to file an objection to the treatment and raise objection to continuing and transitioning the patient from trial to long-term opioid use.  Section F.2.b.ii provides the criteria necessary for a full reevaluation, which includes but is not limited to: physical and psychological assessment; appropriate referrals based upon complications of the clinical presentation; identifying concurrent non-opioid therapies which are appropriate; a schedule for monitoring and reevaluating the opioid use; compliance with federal and state standards; and, consideration of appropriate referrals for co-morbidities.\r\n\r\nThe Guidelines specifically limit the use of opioids to a maximum of two, consisting of a long-acting and short-acting opioid medication.  See, § F.2.c.ii.  When there is consideration of more than two opioids, a second opinion from a specialist who is Board-certified in addiction medication or pain medicine is strongly recommended.  (<strong>Practitioner’s point</strong>: there is no indication as to who is to obtain a second opinion, so arguably the carrier can schedule and demand compliance with this provision).\r\n\r\nPer the Guidelines, buccal-delivered medications (drugs which diffuse through tissues lining the mouth and enter directly into the bloodstream) “should not be used in this population.”  (<strong>Practitioner’s point</strong>: a denial should be filed if the practitioner fails to seek this treatment by variance.)\r\n\r\nOnce a patient has been on chronic opioid therapy, there should be a regular monitoring as well as reevaluation at each patient visit to measure the patient’s adherence and progress with treatment goals.  <em>See</em>, § F.3.a.  The Guidelines then lay out the criteria and factors a doctor should assess when performing this reevaluation.  See, § F.3.b.i.  Evidence of significant adverse effects requires the physician to reduce the opioid dose and reassess the patient.  See, § F.3.b.ii.  The Guidelines also provide, at page 50, Table 3, a detailing of adverse effects from opioids.  Obviously, a failure to decrease and reevaluate in the presence of these adverse effects, as well as a failure to complete reevaluations at each visit, would be a valid basis for objection to the treating provider’s medical bill and continued medication.  It would also be a valid basis to raise objection and seek litigation on continued opioid medications.\r\n\r\nFinally, depending on the risk assessment results, the doctor is required to do urine toxicology screenings.  The risk assessment determines how frequently the screenings are to be completed. Per the Non-Acute Guidelines, the provider must affirm the findings of the urine toxicology screening in his report, but the screening is not to be released to the carrier, employer, or the Workers’ Compensation Board.  <em>See</em>, F.3.d.ii.  Finally, a patient can refuse a urine drug test, but once refused, will receive no further prescriptions for opioid medications as a consequence of the refusal.  (<strong>Practitioner’s point</strong>: If a claimant refuses a urine toxicology screening, medications should be denied if prescribed at that appointment.)\r\n\r\nIt is significant that Section F.3.d.ii specifically notes that the results are not be disclosed, as this demonstrates that the other required forms and assessments are required to be disclosed, as there is no such specificity stated in the Guidelines for those forms and tools.\r\n\r\nHere, it is clear that there is significant room for error when a provider is treating for non-acute pain.  The reports of these providers should be reviewed carefully, and any and all objections raised immediately.  It is easier to ensure a claimant never receives opioid medications for non-acute pain than it is to attempt to limit, taper, or discontinue opioids once they have been started to treat non-acute pain.\r\n\r\nFinally, Section F.3.e.iii details the reasons to discontinue opioid medications, and Section F.3.e.iv provides the process to be followed for discontinuing and tapering a claimant’s opioid medications.  If a provider indicates that discontinuing and tapering of the claimant’s opioids is an appropriate process, then that weaning should be in compliance with the Non-Acute Pain Guidelines.\r\n\r\nIf you have any questions about the information contained in this article, or about the Non-Acute Pain Guidelines, please do not hesitate to contact me.\r\n\r\n<a href=\"#_ftnref1\" name=\"_ftn1\">[1]</a> https://thelomad.com/getmad.today/wp-contentwww.wcrinet.org/result/use_narcotics2_result.html.\r\n\r\n<a href=\"#_ftnref2\" name=\"_ftn2\">[2]</a> https://thelomad.com/getmad.today/wp-contentwww.cdc.gov/vitalsigns/opioid-prescribing/\r\n\r\n<a href=\"#_ftnref3\" name=\"_ftn3\">[3]</a> https://thelomad.com/getmad.today/wp-contentwww.cdc.gov/drugoverdose/data/overdose.html','Non-Acute Pain Treatment Guidelines','','publish','closed','closed','','non-acute-pain-treatment-guidelines','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/08/non-acute-pain-treatment-guidelines/',0,'post','',0),(46483,1251,'2021-08-18 01:41:58','2021-08-18 05:41:58','','AdobeStock_448704256_Preview','','inherit','closed','closed','','adobestock_448704256_preview','','','2021-08-18 01:41:58','2021-08-18 05:41:58','',6,'/wp-content/uploads/sites/1503150/2021/08/AdobeStock_448704256_Preview.jpg',0,'attachment','image/jpeg',0),(46485,2461,'2021-08-18 01:42:06','2021-08-18 05:42:06','','pic-1-300x115-1','','inherit','closed','closed','','pic-1-300x115-1','','','2021-08-18 01:42:06','2021-08-18 05:42:06','',46482,'/wp-content/uploads/sites/1503150/2015/08/pic-1-300x115-1.jpg',0,'attachment','image/jpeg',0),(46486,25,'2015-08-03 00:00:00','2015-08-03 04:00:00','Here is a quiz to test your NY Workers’ Compensation knowledge.  Do you have MAD skills?  Answers will be published as a separate post in one week.  To obtain an answer key immediately, contact <a href=\"mailto:mday@getMAD.today\" target=\"_blank\" rel=\"noopener\">mday@getMAD.today</a>.\r\n<ol>\r\n 	<li>What is the Special Funds WCL § 15(8)(d) reimbursement form and what are the time frames for seeking reimbursement once WCL § 15(8)(d) is established?</li>\r\n 	<li>What is the percentage of medical impairment for a claimant whose provider has opined a Class II severity E impairment?</li>\r\n 	<li>What are the three exceptions to written notice under WCL § 18?</li>\r\n 	<li>When do the medical treatment guidelines apply?\r\n<ol>\r\n 	<li>When claimant lives in state and the doctor treats in state?</li>\r\n 	<li>When claimant lives out of state and the doctor treats in state?</li>\r\n 	<li>When claimant lives in state and the doctor treats out of state?</li>\r\n 	<li>When claimant lives out of state and the doctor treats out of state?</li>\r\n</ol>\r\n</li>\r\n 	<li>What is needed in a chiropractor’s report for there to be a well-documented exacerbation to allow for treatment in the absence of a variance?</li>\r\n 	<li>Under what circumstances can a carrier deny a variance without contrary medical evidence?</li>\r\n 	<li>If the carrier commences payment of temporary compensation without admitting liability pursuant to WCL § 21-a, how much time does it have to electronically file a notice of controversy before it would be deemed to have admitted liability for the claim and a decision would be issued establishing the claim?</li>\r\n 	<li>An IME report must be filed within 10 business days after the examination with the Board. Does a holiday within the period count as a business day and does only a holiday that falls on the 10<sup>th</sup> day count as a holiday that requires that the IME report be submitted on the next business day?</li>\r\n 	<li>If a claim is not controverted, when is a SROI late and what is the penalty?</li>\r\n 	<li>What is the significance of the filing of notice of indexing?</li>\r\n 	<li>When the employer or carrier is under a direction to continue payments to the claimant following a hearing or issuance of a decision pursuant to rule 300.23, it is permissible to suspend benefits without a hearing under certain circumstances. True or false?</li>\r\n 	<li>How are actual reduced earnings calculated?</li>\r\n 	<li>When can MMI be determined?</li>\r\n 	<li>How long does a self-insured employer have to make the mandatory deposit into the ATF following classification with a PPD for a claim with a date of accident after 7/1/07?</li>\r\n</ol>\r\nGood luck and have fun!','Test Your NY Workers’ Compensation Chops','','publish','closed','closed','','test-your-ny-workers-compensation-chops','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/08/test-your-ny-workers-compensation-chops/',0,'post','',0),(46488,2461,'2021-08-18 01:42:12','2021-08-18 05:42:12','','pic-1','','inherit','closed','closed','','pic-1','','','2021-08-18 01:42:12','2021-08-18 05:42:12','',46482,'/wp-content/uploads/sites/1503150/2015/08/pic-1.jpg',0,'attachment','image/jpeg',0),(46489,25,'2015-07-21 00:00:00','2015-07-21 04:00:00','WCL §13-f only permits treatment of workers compensation claimants by physicians or other qualified individuals authorized by the statute.  WCL §13-m(2)(a) identifies individuals who are considered qualified to provide psychological care to injured workers and limits that treatment to persons who are qualified licensed psychologist upon the referral from a physician.  Hence, the board has repeatedly held that social workers are not authorized medical providers under the WCL.\r\n\r\nNonetheless, social workers may treat and be paid for their services if performed under the direct supervision of a medical doctor/psychiatrist.  <em>See</em> Office of Children and Family, 2014 NY Wrk Comp G026 8017 (June 13, 2014).\r\n\r\nWhat if the social worker performs the services under the supervision of a psychologist?\r\n\r\nWhether bills for the treatment will be found compensable appears to hinge on whether the referral to the psychologist in the first instance complied with WCL §13-m(2)(a) .  That section requires that psychotherapy be initiated upon the referral of an authorized physician. As a result, where a chiropractor referred a claimant for psychotherapy, and a licensed social worker then treated the claimant under the supervision of that psychotherapist, objections to medical bills were found in favor of the carrier because a chiropractor is not an authorized physician pursuant to WCL §13-m(2)(a). <em>See </em>Bletsas Plumbing &amp; Heating, 2014 N.Y.Wrk.Comp. G042 6651 (7/2/14).','Liability for Treatment by Social Workers','','publish','closed','closed','','liability-for-treatment-by-social-workers','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/07/liability-for-treatment-by-social-workers/',0,'post','',0),(46492,25,'2015-07-13 00:00:00','2015-07-13 04:00:00','A work-related injury that prevents a claimant from working could qualify the claimant for awards at the temporary total disability (TTD) rate.  The claimant’s treating provider is expected to establish if the claimant is temporary totally disabled and should express his opinion in his medical reports.\r\n\r\nShould the carrier disagree with the treating provider’s opinion the carrier can schedule an IME, in compliance with WCL § 137 and 12 NYCRR § 300.2, to reassess the claimant’s degree of disability.\r\n\r\nTemporary total disability becomes especially relevant when the claimant suffered a schedulable injury.  WCL § 15 provides for an enhanced schedule loss of use award when the claimant’s temporary total period of disability exceeds that what is considered the normal healing period for the injury to the claimant’s body part.\r\n\r\nTherefore, a determination of temporary total disability could have a significant impact on a claimant’s SLU award.  What is less clear is what the criteria for temporary total disability are?  Is it speculative and dependent on the treating provider’s subjective disposition?  Or, should there be demonstrable criteria that will guide the treating provider to an objective opinion that an IME, if requested, could confirm?\r\n\r\nTo be temporary “TOTALLY” disabled we picture a claimant in a wheelchair paralyzed and unable to function without assistance.  But, in reality the picture is frequently very different and often as follows:\r\n\r\nThe claimant jump up and made his way to the door of the court room.  He appeared healthy and happy.  There was no sign of any kind of impairment and we had to consult our file to reaffirm the injury.  On his C-3 the claimant claimed that a piece of steel fell on his right finger cutting it. The claimant only noted a right pointer finger injury.\r\n\r\nHowever, on his C-3 a month later he alleged that a piece of steel fell, causing him to fall with it.  He not only stated that he cut his finger, he also alleged injuries to his lower back.\r\n\r\nWithout reference to any objective criteria or observations (in fact, X-rays were negative), but simply referring to and reiterating the claimant’s allegations as to his condition, the treating physician confirmed the claimant’s claim that he was temporary totally disabled.\r\n\r\nAs said above, the determination of temporary total disability falls for the most part, at least initially, within the province of the claimant’s treating provider.  However, there seems to be a lack of guidance and demonstrable formulated criteria to assist treating providers to objectively determine temporary total degree of disability, especially with regard to injuries to the extremities.\r\n\r\nThe 1996 Medical Impairment Guidelines provide objective criteria to assess a claimant’s degree of disability.  However, these guidelines focus on the assessment of degree of disability relative to back injuries.  Furthermore, the 1996 Guidelines were replaced by the 2012 Guidelines which went into effect on Januarys 2012.\r\n\r\nThe 2012 Guidelines provides criteria for the evaluation of permanent disabilities, but it does not refer to temporary disabilities.\r\n\r\nIn order to make a determination of total disability, Section “G” of the 1996 Medical Impairment Guidelines provides five additional objective criteria that should, over and above the criteria used to evaluate marked partial disability, be present.  The criteria for total disability include:  1) Use of an assistive device to ambulate for more than two years duration;  2) Needs assistance to undress or disrobe and unable to get up to the examination table without assistance;  3) Needs assistance to perform activities of daily living such as self-care, personal hygiene and transportation;  4) Severe neurological deficit such as marked muscle weakness, paraplegia, and paraparesis;  5) Disturbance of bladder, bowel and/or sexual function.  See, Medical Guidelines June 1996 p. 27.\r\n\r\nIt is well established that differing medical opinions is a matter that is within the New York Workers’ Compensation Board’s discretion to resolve. See <u>Matter of Raffiani v. Allied Sys</u>., Ltd., 27 A.D.3d 983 (2006)  and <u>Ciafone v. Consolidated Edison of N.Y</u>., 54 A.D.3d 1135 (3<sup>rd</sup> Dept. 2008).\r\n\r\nIn <u>Medicab/Rochester Inc.</u> the Board Panel, confronted with contrasting medical opinions, considered the 1996 Medical Impairment Guidelines to evaluate degree of disability finding that the claimant did not in fact had a temporary total degree of disability, but a temporary partial disability. <u>Medicab/Rochester Inc., </u>2015 NY Wrk Comp. 0990585.\r\n\r\nIn another recent Full Board Review, the claimant’s chiropractor continued to opine a TTD.  However, he testified that the claimant did not require an assistance device to walk, did not need assistance to get on the examination table and he had no knowledge of any bladder, bowel or sexual dysfunction.  No issues with the claimant’s ability to sit, walk or perform daily activities such as driving, cooking, cleaning or personal hygiene was indicated.  Consequently, the Board found that the claimant was not temporary totally disabled. <u>Matter of Our Lady of Victory Baker,</u> 2015 NY Wrk. Comp. 0730636.\r\n\r\nIn <u>Wakefern Food Corp NY</u>, the Board found that the claimant’s provider admitted under testimony that she “elicited inadequate and/or limited information from the claimant in reference to whether the claimant satisfies several of the criteria for a total disability finding as set forth in the Board’s 1996 Medical Guidelines.” As a result the Board found her testimony of temporary total disability unpersuasive. <u>Wakefern Food Corp NY,</u> 2015 NY Wrk. Comp. 30505506.\r\n\r\nAll the case law referenced above involved claims with back injuries.  Would it not be more efficient if there were definite criteria for treating providers to use to determine temporary degree of disability, especially where injuries could result in SLU awards?  Medical opinions based on objective criteria could significantly reduce the amount of independent medical examinations and subsequent litigation on degree of disability.\r\n\r\nTherefore, medical providers are advised to objectively evaluate their patients and, according to the NY Workers’ Compensation Board website, continue to determine temporary disability as they have done before the implementation of the 2012 Guidelines.','MDs, JDs AND TTDs','','publish','closed','closed','','mds-jds-and-ttds','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/07/mds-jds-and-ttds/',0,'post','',0),(46493,25,'2015-07-01 00:00:00','2015-07-01 04:00:00','For this week’s blog post, I decided to pull a case from the archives in honor of our Day of Independence.  In honor of the upcoming holiday, and in hopes that it will be a guiding principle throughout your Fourth of July events and the year to come, we review the case of <u>East Village</u>, 2014 NY Wrk. Comp. LEXIS 3639, 061 7908 (Carrier ID No. – W207633).\r\n\r\nIn <u>East Village</u>, the claimant filed a C-3 in August 2012 which alleged that he fractured his ankle on July 4, 2012, while working as a building superintendent.  The claimant further indicated that he was supervising tenants and guests when he fell down a staircase.\r\n\r\nThe carrier fully controverted the claim alleging no accident arising out of and in the course of employment and that the claimant willfully intended to bring about the injury pursuant to WCL § 10.  The carrier based its WCL § 10 defense upon the fact that prior to the altercation which resulted in the injury, the claimant’s dog had been struck by a firework that one tenant threw off the roof.\r\n\r\nThe claimant and his fiancée testified on the claimant’s behalf.  However, the claimant’s supervisor/employer failed to appear at the hearing, advising that he did not feel it important enough to show up to testify.  Based upon the employer’s failure to appear, the judge did find a negative inference.\r\n\r\nThe claimant’s testimony, which was bolstered by his fiancée, supplied the following facts to the claimant’s case: (1) that the claimant contacted his supervisor to advise that there were tenants and guests throwing fireworks off the roof and that the claimant’s supervisor instructed the claimant to ignore the events taking place on the roof and clean up the mess the next day; (2) that the claimant’s dog had been struck by a firework thrown from the roof and that was when the claimant went up to the roof and instructed the tenants and guests to leave the roof; (3) those individuals did clear the roof as requested and the claimant went back downstairs to get a garbage bag so he could clean the roof area; (4) on his way back to the roof to clean, he encountered four people which were guests of a tenant; and, (5) when he told the individuals he was going to call the police, one man knocked the cell phone out of the claimant’s hand and the claimant attempted to physically restrain the man and both fell down the stairs resulting in the claimant’s injury.\r\n\r\nIn analyzing the facts of the claim, the Board did note that under “Workers’ Compensation Law an accidental injury must have arisen out of and in the course of employment.”  The presumption was also addressed by the Board that accidents which arise in the course of employment are presumed to arise out of such accident and that this presumption is rebuttable only by substantial evidence to the contrary.  Finally, the Board also analyzed WCL § 21(1) noting that an assault that occurs at work is presumed to arise out of employment unless there is substantial evidence that it was “motivated by purely personal animosity.” [<em>Internal citations omitted</em>].\r\n\r\nThe Board ultimately determined that the claim was compensable.  In reaching its Decision, the Board found that the claimant did concede that one of the individuals on the roof threw a firework that struck his dog, but that the assault which occurred on the stairs happened not due to the confrontation over the dog incident, but after the claimant told the people on the roof he was going to call the police.\r\n\r\nUsing these facts, the Board found the claim compensable based upon the nexus between the claimant’s work activities as the superintendent of the property and the assault occurring as he was in the process of going to clean the roof in fulfilment of those work activities.\r\n\r\nDo you think the Board was correct?\r\n\r\nAs a carrier’s representative, stressing the importance of an employer testimony is always a top priority so that the witness fully appreciates the significance of their presence at the Workers’ Compensation hearing.  Do you think the Decision would have been different if the employer had testified?\r\n\r\nHope you have a safe and happy holiday and that this holiday your hot dogs are <em>Ball Parks</em>.\r\n\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2015/07/Hot-Dog-Dog-Costume1-300x196-1.jpg\"><img src=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2015/07/Hot-Dog-Dog-Costume1-300x196-300x196-1.jpg\" alt=\"Hot-Dog-Dog-Costume1-300x196\" /></a>\r\n\r\nHappy Fourth of July from The Law Offices of Melissa A. Day, PLLC!','HOT DOGS OR HAMBURGERS?','','publish','closed','closed','','hot-dogs-or-hamburgers','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/07/hot-dogs-or-hamburgers/',0,'post','',0),(46495,2461,'2021-08-18 01:42:57','2021-08-18 05:42:57','','Hot-Dog-Dog-Costume1-300x196-300x196-1','','inherit','closed','closed','','hot-dog-dog-costume1-300x196-300x196-1','','','2021-08-18 01:42:57','2021-08-18 05:42:57','',46493,'/wp-content/uploads/sites/1503150/2015/07/Hot-Dog-Dog-Costume1-300x196-300x196-1.jpg',0,'attachment','image/jpeg',0),(46496,25,'2015-06-29 00:00:00','2015-06-29 04:00:00','IMEs are vital in the defense of most workers’ compensation claims, and the legislature and Board has spent a great deal of effort to ensure their impartiality and uniformity; at least for timely service on all the parties.  A lesser known aspect of both the Workers’ Compensation Law, and the regulations, is that these examinations can be videotaped by one, or both, parties.  To lay it all out, we need to start, surprisingly, with the regulations, not the WCL.\r\n\r\n12 NYCRR § 300.2 (d)(7) entitled “Conduct at Examination” specifically permits either the examinee or the examiner the “right” to videotape an examination:\r\n\r\n(7) Conduct at examination. The claimant or the examiner may videotape or otherwise record the examination. An independent medical examiner may not refuse to conduct an independent medical examination because the claimant intends to videotape or otherwise record such examination when the claimant has appeared for such examination as scheduled. The claimant and the independent medical examiner and their agents shall not alter or misrepresent the content of the recording and shall not distribute publicly the recording beyond its use in a hearing of the Board. The claimant may be accompanied to the examination by an individual or individuals of his or her own choosing. However, neither the examiner nor the claimant may disrupt or interfere with the examination by such recording or as a result of the presence of such companion or companions.\r\n\r\nJumping back up to the WCL,  § 137(7) is clear that an employer/carrier and/or the examiner must give the same seven-business-day notice of the intent to record the examination as of the examination itself.  Board form IME-5 contains a handy check-box for that purpose.\r\n\r\nA claimant, however, is bound by no such notice requirement. 12 NYCRR § 300.2 (d)(7) says that a claimant can record his or her own examination, but it makes no mention of any need to give advance notice to the consultant or the employer/carrier, and the Board has picked up on that distinction. <em>See  </em><u>Nautica Enterprises</u>, 2014 NY Wrk. Comp. 0383137.\r\n\r\nOne can imagine that having a video camera – or in the 21st century an iPhone – whipped out moments before he or she is going to begin an examination could unnerve even the stoutest consultant. A few have gone so far as to refuse to allow the recording, leading to a line of cases confirming that, although emanating from a regulation alone, a claimant has a “right” to videotape an exam and the consultant’s refusal to allow such a recording is sufficient grounds to support preclusion of the IME report. <em>See e.g.</em> <span style=\"text-decoration: underline;\">Urban Foundation Engineering</span>, 2014 NY Wrk. Comp. 0683989; <u>Bottling Group LLC</u>, 2013 NY Wrk Comp 0503117; <u>Dept of Buildings</u>, 2013 NY Wrk. Comp 0423387.\r\n\r\nIf the consultant’s refusal to permit videotaping prevents the exam from even taking place, a carrier may be given additional time, or another opportunity to produce an exam provided that they move quickly and make substantial efforts to timely reschedule the IME.  <span style=\"text-decoration: underline;\">St Regis Hotel</span>, 2013 NY Wrk. Comp. 00421340 (the “right to videotape is absolute and disallowing the claimant this right was the consultant’s direct noncompliance with the law, but is not tantamount to waiver by the carrier”).\r\n\r\nSurprisingly, (or unsurprisingly depending upon what side of the bar your practice on) a claimant, apparently, need never give notice that he or she is recording an examination; or at least not give notice until they intend to produce the footage and submit it into evidence.  In <u>NYC Housing Authority</u>, 2015 NY Wrk. Comp 0768798.  claimant’s sister, who was also present at an IME, surreptitiously, and without the knowledge of the consultant, videotaped the entire examination.  Notice of that recording was not given until two months later, after defense counsel had opened litigation on the issue of ongoing disability premised upon that consultant’s report.  The WCLJ directed the claimant to turn over a copy of the video to defense counsel, but due to a failed mailing, defense counsel and the carrier were not provided with the footage, or even able to view it, until a second hearing, held nearly a month later, which was scheduled for oral summations on the pending issues.  The WCLJ ruled that the IME was not credible based in part on the footage, which apparently raised some doubt as to whether certain body sites were actually examined.   On appeal, the Board found nothing wrong with claimant’s late notice, and even excused the failed mailing noting that “the WCLJ acted within the scope of discretion by allowing the video to be admitted into evidence.”\r\n\r\nTo recap, if a consultant refuses to allow video recording, that IME will likely be precluded.  But what if a claimant refuses to be taped?  Case law is eerily silent on that specific issue.  However, the Board has been consistent that a claimant has a “statutory duty to attend an exam by the carrier’s consultant”  and that a employer/carrier can obtain a suspension of benefits where a claimant’s activities “frustrate[] the employer’s or carrier’s right to engage an independent medical consultant.”   <u>Jet Blue Airways Corporation</u>, 2013 NY Wrk Comp 00451162; <u>NYC Health and Hospital Corp</u>, 2014 NY Wrk Comp 0770787 <em>citing </em><u>Matter of Jasime v. Rainbow Grill</u>, 115 AD2d 862 (3d Dept 1985). <span style=\"text-decoration: underline;\">Dept. of Parks and Recreation</span>, 2013 NY Wrk. Comp. 0206209 (pursuant to WCL § 13-(a)(4) the claimant is not entitled to awards where appearing at IMEs but refusing to allow examination of certain body sites in issue at those exams).\r\n\r\nSo, will your next IME be a Box Office hit, or will it go bust?','IMEs : The Next Summer Movie Blockbuster or Just Another IME Gone Bust?','','publish','closed','closed','','imes-the-next-summer-movie-blockbuster-or-just-another-ime-gone-bust','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/06/imes-the-next-summer-movie-blockbuster-or-just-another-ime-gone-bust/',0,'post','',0),(46498,2461,'2021-08-18 01:43:05','2021-08-18 05:43:05','','Hot-Dog-Dog-Costume1-300x196-1','','inherit','closed','closed','','hot-dog-dog-costume1-300x196-1','','','2021-08-18 01:43:05','2021-08-18 05:43:05','',46493,'/wp-content/uploads/sites/1503150/2015/07/Hot-Dog-Dog-Costume1-300x196-1.jpg',0,'attachment','image/jpeg',0),(46499,25,'2015-06-14 00:00:00','2015-06-14 04:00:00','New York State Workers’ Compensation Board’s Regulatory Agenda May Include Significant Changes to Limit an Employer’s Right to Cross-Examination.\r\n\r\nAlmost two weeks ago I published a copy of the Board’s Regulatory Agenda on my group, New York Workers’ Compensation Forum. Among the items in the agenda was the following proposed change:\r\n6. Add a new part 300.39 to establish rules for the cross-examination of medical witnesses and to repeal section 300.10(c).\r\n12 NYCRR §300.10(c), as most defense attorneys know, is one of the last tools remaining in our dwindling tool chest. It requires a judge to permit an employer or carrier to cross examine a claimant’s doctor:\r\n(c) When the employer or its carrier or special fund desires to produce for cross-examination an attending physician whose report is on file, the referee shall grant an adjournment for such purpose…\r\nThe Board has not yet published a draft of the regulation it intends to propose so we do not yet know what the new rule will require. However, in 2010, a similar change was contemplated and a draft of a new regulation, to be implemented after repeal of 300.10(c), was circulated by organizations like WorkComp Central and the NY Business Council.\r\n\r\nThe 2010 draft regulation would have created procedural requirements like filing a written request to cross examine a physician whose report is in eCase within 45 days of the filing of the report. It would also give the judge the power to “determine whether the requested cross-examination is reasonably necessary for the full presentation of the case or issue.” Additionally, appeals of a denial would be considered interlocutory.\r\n\r\nA copy of the 2010 draft is reproduced below and can also be found at the following link: <a href=\"https://thelomad.com/getmad.today/wp-contentwww.bcnys.org/inside/wc/2010/crossexamregs.pdf\" target=\"_blank\" rel=\"noopener\">https://thelomad.com/getmad.today/wp-contentwww.bcnys.org/inside/wc/2010/crossexamregs.pdf</a>.\r\n\r\n300.39 Cross examination of medical witnesses in accepted or established claims.\r\n(a) All requests for cross-examination of a treating medical provider, independent medical examiner, or a physician designated by the Board to examine a claimant pursuant to section 13(e) of the Workers’ Compensation Law, shall be made in writing using the form prescribed by the Chair to request further action or on the record at a hearing no later than forty-five days from the date the Board received the medical report(s) which is the subject of the cross-examination. All requests shall specify\r\n(1) the name and address of the medical witness the party requests to cross-examine;\r\n(2) the date of the report(s) which forms the basis for the cross examination, and\r\n(3) the basis for requesting cross-examination, including any specific facts reasonably likely to be elicited on cross-examination that would undermine the witness’s medical opinion relative to the report(s).\r\n(b) Except as provided in Workers’ Compensation Law Section 13 (e), the Workers’ Compensation Law Judge shall determine whether the requested cross-examination is reasonably necessary for the full presentation of the case or issue. If a party identifies specific evidence that, if credited by the Worker’s Compensation Law Judge, would likely result in rejection of the witness’s medical opinion, cross-examination shall be granted. If a party fails to timely request cross-examination or to identify specific evidence that would likely result in rejection of the witness’s medical opinion, cross-examination shall be denied. Where the party has produced a medical opinion that contains a viable difference from or is contrary to the witness’s medical opinion with respect to the particular issue to be determined, the party shall presumptively be entitled to cross-examination.\r\n(c) Cross-examination shall be taken at a hearing or by deposition within forty-five days of the order granting the cross-examination; provided however that if the claimant is not represented by legal counsel, the cross-examination shall be taken at a hearing.\r\n(d) If the medical witness for the insurance carrier fails to appear for cross-examination as scheduled, the insurance carrier’s right to introduce its independent medical report from the witness or to have the witness testify at a hearing or by deposition shall be deemed waived, unless the insurance carrier shows by affidavit good cause why the witness failed to appear, and that it acted in good faith and with due diligence.\r\n(e) If the medical witness for the claimant does not appear for cross-examination as scheduled, then an extension of time to take testimony shall be granted only where the Worker’s Compensation Law Judge finds that the witness could not have appeared within that period because of good cause, and that the party seeking the extension acted in good faith and with due diligence. If the extension is granted, the testimony shall be taken by deposition at the earliest date practicable but not more than thirty days after the date the witness was originally scheduled to testify. Such deposition may be taken by telephone. The insurance carrier is solely responsible for enforcing a subpoena to compel the appearance of the witness at the deposition. In the event that the insurance carrier fails to enforce a subpoena to compel appearance of the witness at the deposition, the report of the witness shall remain in evidence. For any such medical witness authorized by the Chair to treat or conduct independent medical examination of injured workers or both, the Board shall promptly direct the witness to appear at such deposition. If the medical witness does not appear at such deposition, the testimony of the witness shall not be rescheduled and the Chair shall take such action as deemed appropriate with respect to the witness’s authorization to treat or conduct independent medical examinations of injured workers or both.\r\n(f) Any order granting or denying cross-examination under this section shall be interlocutory and shall not be reviewable by the Board under Workers’ Compensation Law Section 23 until a final decision on the substantive disputed issue(s) has been made by the Workers’ Compensation Law Judge.\r\n(g) Requests for cross-examination under this section that have been instituted or continued without reasonable ground are subject to assessments under Workers’ Compensation Law Section 114-a (3) in addition to any other penalty permitted under the Workers’ Compensation Law.\r\n(h) For purposes of this section, “insurance carrier” shall include those entities under Workers’ Compensation Law Section 2 (12), the Uninsured Employers’ Fund under Workers’ Compensation Law Section 26-a (2), and the Fund for Reopened Cases under Workers’ Compensation Law Section 25-a (3).\r\nAs indicated by the Board in connection with its publication ‘in the NYS Register of its 2015 Regulatory Agenda you can get additional information or <strong>submit written comments</strong> concerning this and other items on the Regulatory Agenda by contacting Heather M. MacMaster, Associate Attorney, Workers’ Compensation Board, 328 State St., Schenectady, NY 12305-2318, (518) 486-9564, e-mail: <a href=\"mailto:regulations@wcb.ny.gov\" target=\"_blank\" rel=\"noopener\">regulations@wcb.ny.gov</a>.','WCB’s Regulatory Agenda May Include…','','publish','closed','closed','','wcbs-regulatory-agenda-may-include','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/06/wcbs-regulatory-agenda-may-include/',0,'post','',0),(46500,25,'2015-02-05 00:00:00','2015-02-05 05:00:00','WCL Section 52 (1)(D) states that:\r\n\r\nIf at any time an employer intentionally and materially understates or conceals payroll, or intentionally and materially misrepresents or conceals employee duties so as to avoid proper classification for calculation of premium paid to secure compensation, or intentionally and materially misrepresents or conceals information pertinent to the calculation of premium paid to secure compensation, such employer shall be deemed to have failed to secure compensation and shall be subject to the sanctions applicable to this section.\r\n\r\nThe “sanctions” laid out on the balance of the section include fines, penalties, stop-work orders, criminal prosecution and personal liability for all penalties and fines by the president, secretary and treasurer of the violating corporation.\r\n\r\nIn Urbano v. Bletsas Plumbing &amp; Heating, 2015 NY Slip Op 00416 (3d Dept. 2015) the Third Department considered this very provision of the WCL where the carrier raised WCL 52(1)(D) claiming that because Bletsas had defrauded it by underreporting the number of employees (one of which was the claimant) and paying those employees “off the books” the employer should be “deemed to have failed to secure compensation” and thus the UEF, and not the carrier, should be liable for the claim.\r\n\r\nThe Appellate Division unfortunately disagreed with the carrier’s interpretation of the phrase “deemed to have failed to secure compensation” holding that in context of the balance of WCL it was clear that the defense of “coverage” would only have been properly raised had the carrier timely cancelled coverage under WCL 54(5) before the work injury took place, and that the legislative history of this 2007 Amendment provision clearly illustrated that it was “designed to punish fraud perpetrated by the employer, not to rescind coverage or release the carrier from liability to an injured employee.”\r\n\r\nThe AD ruling in Urbano forces this carrier to cover a loss for a risk against which is received no premium. The remedy of an action commenced on the policy was unaddressed by the Court, but we would assume that the carrier’s chance of recovering from its insured is slim to none given that the penalties imposed by the Board for the fraud under WCL Sec. 52 are nondischargable and would prime any judgment lien the carrier could eventually obtain.','An Underwriting Nightmare Come True','','publish','closed','closed','','an-underwriting-nightmare-come-true','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/02/an-underwriting-nightmare-come-true/',0,'post','',0),(46501,25,'2015-02-05 00:00:00','2015-02-05 05:00:00','Occupational Hearing Loss claims are hard to defend. To prove injurious exposure to workplace noise, the standard of proof can be as low as a claimant’s testimony that his or her workplace was “loud.” Even where the employer has an extensive hearing conservation program, complete with mandatory hearing protection use, annual hearing tests, and, even complex soundmapping, a claimant testifying that his or her workplace was “loud,” even though he or she wore hearing protection, is enough, without a good defense, to establish an occupational hearing loss claim under the WCL.\r\n\r\nTherein lies the first real problem in defending a hearing loss claim: an employer’s preventative measures are guided by OSHA regulations which are specific –specific to the point of expressing “safe” decibel levels of exposure in time-weighted averages — and the WCL simply tells us the “injurious exposure” to loud noise causes hearing loss. Evidence about a workers’ regular use of hearing protection, according to case law, can be probative evidence on the issue of exposure, but as with almost every line of precedent issued by the Board, cases are fact sensitive. That fact is most clearly demonstrated by the Appellate Division’s ruling in Zham v. National Fuel, 72 AD3d 1311 (3d Dept. 2010). Zham is a rare example of an employer prevailing on an occupational hearing loss claim, by establishing that the claimant, a customer service representative who spent much of her day on the telephone, had not established that having customers “scream at her” on the phone for several hours a day was compelling proof of injurious exposure where the employer’s consultant opined that the hearing tests he conducted showed a loss of hearing inconsistent with noise exposure. The mantra of “good facts make good law” could not be better illustrated in this context.\r\n\r\nThis month, The Law Office of Melissa A. Day won a disallowance of an occupational hearing loss claim involving a 45-year employee of a large manufacturing employer who alleged hearing loss due to exposure to presses, grinding machines and other heavy fabricating equipment. The employer in this matter had taken painstaking efforts to implement and enforce an OSHA-compliant hearing conservation program and required all workers to utilize hearing protection “wall to wall” and conducted annual screenings and annual soundmapping to confirm that noise levels and sound-damping measures were safe for its employees. The claimant testified that for the bulk of her employment, she worked in a room adjacent to the plant floor that was “quiet” and she confirmed her normal workplace was comparable to the WCB courtroom where her testimony was being taken. Although the claimant testified she had spent time on a daily basis around the “loud” machines, she had strictly complied with the employer’s hearing conservation program and had worn hearing protection without fail for the last thirty years of her employment. Claimant’s treating physician found a minimal loss of hearing, while the employer’s consultant found even less hearing – less than 0% according to the Board’s formula.\r\n\r\nUnder cross-examination both doctor’s agreed that their hearing test results were nearly identical and well within any variation they would expect to see between any two hearing tests. The WCLJ, in a lengthy decision, noted that because the hearing tests were nearly identical, the claimant’s work history (exposure) was therefore “a critical factor in determining this claim.” The WCLJ went on to note that “The claimant did testify that she had spent . . . much of her recent time [at work] in an office setting” and that the treating physician’s history of exposure did not include the use of hearing protection for the last 30+ years, only the last 6, and there was insufficient evidence of a causally related occupational hearing loss.\r\n\r\nHearing Loss claims can be won, but what this case illustrates is that a well-coordinated defense is absolutely necessary; and marshalling the facts necessary to present a successful defense requires a close working relationship with the employer and its personnel. Good facts do make good law, but knowing your client is the only way to get either.','Hearing Loss becomes Hearing Win','','publish','closed','closed','','hearing-loss-becomes-hearing-win','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2015/02/hearing-loss-becomes-hearing-win/',0,'post','',0),(46502,25,'2014-11-24 00:00:00','2014-11-24 05:00:00','The Board has announced the adoption of the <a href=\"https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/hcpp/MedicalTreatmentGuidelines/Non-AcutePainMTG2014.pdf\" target=\"_blank\" rel=\"noopener\">Non-Acute Pain Medical Treatment Guidelines (“NAP MTG”)</a>. As with the other MTGs for the neck, back, knee, shoulder and carpal tunnel syndrome, there are 22 guiding principles which provide a general framework for all the MTGs. The emphasis is on FUNCTIONAL ABILITIES, OBJECTIVE EVIDENCE of the treatment’s efficacy and ACTIVE INTERVENTIONS. These guiding principles also apply to the NAP MTGs. Two surgical procedures which are directed at NAP are on the list of procedures which require prior authorization: implantation of a spinal cord stimulator and a pain pump.\r\n\r\nThe NAP MTGs employ a Biopsychosocial, not a Biomedical approach to addressing Non-Acute Pain. Thus there is extensive discussion in the NAP MTGs about evaluating and treating the many disciplines which may contribute to the employee’s Non-Acute Pain.\r\n\r\nThe NAP MTGs also discuss specific pharmacological treatments. For example, many employers and carriers will be thrilled to learn that compound creams are not recommended for the treatment of Non-Acute Pain. Additionally, buccally (via the lining of the mouth) delivered fentanyl products, like Actiq ® and Subsys ® are not recommended.\r\n\r\nOpioids are only continued after a successful trial and require demonstration of objective positive patient response and functional improvement. Urine drug testing based on the employee’s risk for potential abuse is evaluated is recommended, although the results are confidential and not to be shared with the employer, carrier or the Board. Weaning for a variety of clinical indications, i.e., evidence of abuse, lack of efficacy, hyperalagesia, side effects, etc., is discussed.\r\n\r\nThe bottom line is that treatment of chronic pain must now demonstrate objective results, both in pain reduction and improvement in function, not simply subjective reports of improvement in pain, to be implemented and continued. This appears to be very positive development to me.\r\n\r\nFor additional information, please feel free to <a href=\"mailto:mday@getMAD.today\" target=\"_blank\" rel=\"noopener\">contact us</a> for an in-house or online presentation about the new on-Acute Pain Medical Treatment Guidelines.','Non Acute Pain Medical Treatment Guidelines Offer a Framework for Controlling Costs Associated with Chronic Pain Management, Especially Opioid Use','','publish','closed','closed','','non-acute-pain-medical-treatment-guidelines-offer-a-framework-for-controlling-costs-associated-with-chronic-pain-management-especially-opioid-use','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2014/11/non-acute-pain-medical-treatment-guidelines-offer-a-framework-for-controlling-costs-associated-with-chronic-pain-management-especially-opioid-use/',0,'post','',0),(46503,25,'2014-11-23 00:00:00','2014-11-23 05:00:00','By decision drafted by Justice Pigott (Justices Read, Smith and Abdus-Salaam concur) the New York Court of Appeals affirms that the Workers’ Compensation Board did not exceed its statutory authority when it promulgated portions of the Medical Treatment Guidelines.\r\n\r\nThe facts involved a claimant who sustained injuries to her neck and back. The carrier of record was Special Funds Conservation Committee under the Fund for Reopened Cases (WCL § 25-a). The claimant was receiving acupuncture treatment three times per week for a period of six weeks in 2009. After the implementation of the Medical Treatment Guidelines the claimant’s Doctor sought authorization for three acupuncture treatments per week for a period of six months to the cervical and lumbar spine. In response to the newly created Medical Treatment Guidelines, claimant’s Doctor submitted two variance requests for the acupuncture treatment, one under the neck Medical Treatment Guidelines and one under the back Medical Treatment Guidelines.\r\n\r\nThe carrier in response to the variance requests obtained an independent medical examination [“IME”] that found further acupuncture treatments were not medically necessary. Based on the IME examiner’s findings the carrier denied both variance requests.\r\n\r\nThe claimant sought review by a Law Judge of the carrier’s denials.\r\nBoth medical providers then testified as to whether the variances should be granted or denied as to the additional acupuncture treatment. Claimant’s treating medical provider testified that the claimant had undergone other treatment modalities but that acupuncture was the only modality that helped maintain her functional level. The IME examiner testified that claimant’s treatment provider failed to meet the burden of proof when seeking the variance in that he did not include the claimant’s response to treatment or any improvement in her range of motion from the treatment.\r\n\r\nThe Worker’s Compensation law judge affirmed the carrier’s denials of the treatment determining that the provider failed to show that additional acupuncture treatments were medically necessary. The Law Judge specifically noted that the earlier treatments provided no evidence of objective improvement of functional outcomes.\r\n\r\nThe claimant filed an administrative appeal of the Law Judge’s decision, which ultimately affirmed the Workers’ Compensation Law Judge’s determination and further found that the variance application failed to meet the burden of proof in that there was no demonstration that additional acupuncture treatment was medically necessary within the Medical Treatment Guidelines.\r\n\r\nThe claimant appealed the board’s decision to the Third Appellate Department arguing: (1) the Board lacked the authority to promulgate the regulations and incorporate the guidelines; (2) the variance procedure improperly shifts the burden of proof to the claimant’s physician to prove medical necessity of a treatment modality; and (3) the Guidelines violate claimant’s due process rights to a meaningful hearing.\r\n\r\nUltimately, the Third Appellate Department affirmed holding\r\nthe Board acted within its legislatively conferred authority when it devised a list of preapproved medical care deemed in advance to be medically necessary for specified conditions, and did so in a manner consistent with Workers’ Compensation Law § 13(a) and overall statutory scheme.\r\n\r\nIn rendering its opinion the Third Appellate Department also held medical necessity and appropriateness are always prerequisites to an employer’s obligation to pay and the legislature purposefully conferred the authority on the Board to predetermine medical necessity for medical care, and its scope in duration, consistent with best medical practices.\r\n\r\nSignificantly, the Third Appellant Department in rendering this opinion also concluded that medical treatments falling outside the treatment guidelines are predetermined and presumed not to be medically necessary. See, Matter of Kigin v. State of N.Y. Workers’ Compensation Bd., 109 A.D.3d 299 (3 Dept. 2013)(Emphasis Added).\r\n\r\nThe claimant then sought leave to appeal to the Court of Appeals, which was granted. Matter of Kigin v. State of N.Y. Workers’ Compensation Bd., 22 N.Y.3d 854 (N.Y. 2013).\r\n\r\nThe Court of Appeals held that the Board’s promulgation of the guidelines was proper and lawful act. They held that the Board’s Act of creating the Guidelines was a reasonable supplement to WCL § 13 to promote an overall statutory framework intended to provide medical care to injured workers. Significantly, the New York Court of Appeals noted that the board was authorized to issue a list of pre-authorized procedures pursuant to WCL § 13-a. In rendering its analysis Court of Appeals commented that determination necessarily meant that the Board consider what is not best practice and what may not be medically necessary.\r\nThe Court of Appeals then noted for treatments not in accord with the medical treatment guidelines “may nevertheless be approved” through the variance process.\r\nIn response to the claimant’s argument that the Board’s Guidelines have shifted the burden of proof from the employer to the carrier the Court held that there was nothing with in the Worker’s Compensation Law that ever precluded the Board from requiring proof of medical necessity from the claimant’s health care provider. In fact, the Court of Appeals went further to noting that WCL § 13-a presupposes that the treating medical provider has already submitted a first opinion for the needed treatment. Regarding the presumption under WCL § 21(5), the Court of Appeals held that the presumption remains as to the facts contained in medical report, but that a claimant must first demonstrate medical necessity for the treatment.\r\n\r\nFinally, the Court of Appeals held the variance process does afford claimant’s meaningful opportunity to be heard on any denial of a variance and as such due process has not been denied.\r\n\r\nThere was a dissenting opinion drafted by Justice Riviera (Justices Lippman and Graffeo join). Justice Riviera would reverse the Appellate Division’s decision based on the variance scheme pre-determining that all treatment not included on the preauthorized list of services is presumptively not medically necessary, thereby imposing a burden on claimants that’s inconsistent with the statute’s language an underlying purpose of protecting workers.\r\n\r\nThe Court of Appeals has confirmed that the Board did have the authority to create the Medical Treatment Guidelines, that treatments not contained in the Medical Treatment Guidelines are predetermined and presumed to not be medically necessary, and that the burden of proof for medical necessity initially rests with the claimant’s treating medical provider.\r\n\r\nSee, <a href=\"https://thelomad.com/getmad.today/wp-contentwww.nycourts.gov/ctapps/Decisions/2014/Nov14/181opn14-Decision.pdf\" target=\"_blank\" rel=\"noopener\">Matter of Maureen Kigin, Appellant, v. State of New York Workers’ Compensation Board et al</a>., Respondents. No. 181. Argued 10/14/14 and Decided 11/20/14 .','In Kigin v. WCB, the Court of Appeals upholds the presumption that treatment outside the MTGs is not medically necessary and the attending physician has the burden of proof of the need for a variance.','','publish','closed','closed','','in-kigin-v-wcb-the-court-of-appeals-upholds-the-presumption-that-treatment-outside-the-mtgs-is-not-medically-necessary-and-the-attending-physician-has-the-burden-of-proof-of-the-need-for-a-variance','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2014/11/in-kigin-v-wcb-the-court-of-appeals-upholds-the-presumption-that-treatment-outside-the-mtgs-is-not-medically-necessary-and-the-attending-physician-has-the-burden-of-proof-of-the-need-for-a-',0,'post','',0),(46504,25,'2014-11-22 00:00:00','2014-11-22 05:00:00','Following the Board’s decision in Matter of Longley Jones, 2012 NY Wrk Comp 60704882, which held that a claimant’s wages cannot be the sole factor for determining Loss of Wage Earning Capacity, a finding of a 0% Loss of Wage Earning Capacity seemed to be a thing of the past. Certainly judges stopped classifying claimants with having a 0% LWEC even when the claimant had returned to work earning in excess of the at injury AWW.\r\n\r\nThis month, The Law Offices of Melissa A. Day won a finding of a 0% Loss of Wage Earning Capacity against a claimant who sustained a neck and left shoulder injury in the course of his employment as a private security guard at a local amusement park. After undergoing a cervical fusion procedure, the claimant was ultimately able to return to work at his primary employment as a deputy sheriff without a loss of earnings; and in fact was earning more than he was before the accident. While litigating the issue of Loss of Wage Earning Capacity, the claimant produced an FCE indicating that he was capable of what the Board defines as medium, and some heavy-duty work but that he could “safely perform all the critical work demands required for the job of Deputy Sheriff.” The claimant’s treating physician opined a permanent impairment under Table 11.2, Severity E and also opined a physical capability of “medium to heavy demand work.” The Carrier’s consultant opined an impairment under Table 11.2, Severity B and also agreed the claimant could perform medium to heavy work.\r\n\r\nAt the hearing level, the WCLJ classified the claimant with a physical impairment, severity “E” and ruled that the claimant sustained a 35% loss of wage earning capacity when considering his age, education, English proficiency, work experience and present employment, even though he was presently suffering no loss of earnings as a result of the accident.\r\n\r\nOn appeal, The Law Office of Melissa A. Day argued that the credible and unanimous medical evidence indicated that the claimant’s injuries did not prevent him from returning to his pre-injury work duties, and he was, in fact, earning more income after the accident than he was before. It was further argued that the 35% LWEC was by default an “arbitrary and capricious” ruling insofar as the Board has failed to provide any rational method for converting the severity of the medical impairment and the vocational factors of any one claimant into a percent loss of wage earning capacity. In failing to do so, the Board was forcing the parties to take a “blind leap across an inscrutable chasm filled with the various factors” and to thereafter arrive at a completely arbitrary loss of wage earning capcaity that could never be properly quantified.\r\n\r\nThe Board, in reversing the WCLJ, concluded that the claimant’s age, education and work experience were factors that should have “a mitigating impact on [the claimant’s] loss of wage earning capacity.” The Board went on to cite Matter of Longley Jones, 2012 NY Wrk Comp 60704882 for the proposition that post-accident earnings could not be the sole factor considered in assessing a claimant’s LWEC, but went on to rule that “this does not mean that a permanent partially disabled claimant’s wages at the time of classification are irrelevant. They are an important factor . . .”\r\n\r\nThe Board concluded that the claimant suffered from a 0% loss of wage earning capacity ruling that “the evidence indicates that the claimant was able to perform all his critical work demands, had the ability to perform medium to heavy work, and has returned to work without loss of wages, warrant an conclusion that the claimant had a 0% loss of wage earning capacity.” In so ruling, the Board distinguished FedEx Express, 2014 NY Wrk Comp 0275408 which previously stood for the proposition that a claimant, even after returning to work full duty work, without restrictions and without further loss of wages could be granted a minimal LWEC finding (10% in that case) solely on the ongoing subjective complaints stemming from the injury.\r\n\r\nWelcome back 0%.\r\n\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2014/11/ZERO-PERCENT-LWEC-Redacted-.pdf\" target=\"_blank\" rel=\"noopener\">ZERO PERCENT LWEC Redacted</a>','The Law Offices of Melissa A. Day, PLLC Won a Finding of a 0% Loss of Wage Earning Capacity','','publish','closed','closed','','the-law-offices-of-melissa-a-day-pllc-won-a-finding-of-a-0-loss-of-wage-earning-capacity','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2014/11/the-law-offices-of-melissa-a-day-pllc-won-a-finding-of-a-0-loss-of-wage-earning-capacity/',0,'post','',0),(46505,2461,'2021-08-18 01:44:01','2021-08-18 05:44:01','','ZERO-PERCENT-LWEC-Redacted-','','inherit','closed','closed','','zero-percent-lwec-redacted','','','2021-08-18 01:44:01','2021-08-18 05:44:01','',46504,'/wp-content/uploads/sites/1503150/2014/11/ZERO-PERCENT-LWEC-Redacted-.pdf',0,'attachment','application/pdf',0),(46506,25,'2014-09-12 00:00:00','2014-09-12 04:00:00','On December 1, 2010, 12 N.Y.C.R.R. § 324, known as the Medical Treatment Guidelines, became effective. See, 12 N.Y.C.R.R. § 324. The Medical Treatment Guidelines [hereinafter “Guidelines”] became effective on December 1, 2010. 12 N.Y.C.R.R. § 324. The Guidelines specifically limit the amount, frequency, and treatment that can be provide to a claimant in a workers’ compensation claim and the procedure to follow when treatment falls outside the Guidelines. 12 N.Y.C.R.R. § 324. Pursuant to the Guidelines a treatment provider, when it is determined that care which varies from the treatment guidelines is appropriate and medically necessary for the claimant, must file a variance for treatment sought from the Carrier or Special Fund. 12 N.Y.C.R.R. § 324.3. In fact, 12 N.Y.C.R.R. § 324.3 is explicit:\r\nA variance must be requested before medical care that varies from the Medical Treatment Guidelines is provided to the claimant and a request for a variance will not be considered if the medical has already been provided.\r\n12 N.Y.C.R.R. § 324.3(a)(1). Further pursuant to 12 N.Y.C.R.R. 325-1.25, “the employer or insurance carrier shall not be obligated to pay for any medical care that is not within the criteria of the Medical Treatment Guidelines or is not based on correct application of the Medical Treatment Guidelines.” See, 12 N.Y.C.R.R. 325-1.25.\r\nUnder 12 N.Y.C.R.R. § 324.3(a)(2) the Burden of Proof for demonstrating that the claimant requires the treatment rests with the treating medical provider. To make the requisite demonstration the medical provider must indicate on the variance that:\r\n(i) for all variances:\r\n(a) a medical opinion by the Treating Medical Provider, including the basis for the opinion that the proposed medical care that varies from the Medical Treatment Guidelines is appropriate for the claimant and medically necessary, and\r\n(b) a statement that the claimant agrees to the proposed medical care, and\r\n(c) an explanation of why alternatives under the Medical Treatment Guidelines are not appropriate or sufficient; and\r\n(ii) for appropriate claims:\r\n(a) a description of any signs or symptoms which have failed to improve with previous treatments provided in accordance with the Medical Treatment Guidelines; or\r\n(b) if the variance involves frequency or duration of a particular treatment, a description of the functional outcomes that, as of the date of the variance request, have continued to demonstrate objective improvement from that treatment and are reasonably expected to further improve with additional treatment.\r\nSee, 12 N.Y.C.R.R. § 324.3(a)(3).\r\nFurther, the guidelines make clear that under the June 30, 2010, First Edition, guidelines for low back § D.10.a.i that:\r\nManipulation is recommended for treatment of acute and sub-acute back pain when tied to objective measures of improvement.\r\nTime to produce effect for all types of manipulative treatment: 1 to 6 treatments.\r\nFrequency: Up to 3 times per week for the first 4 weeks as indicated by the severity of involvement and the desired effect, then up to 2 treatments per week for the next 4 weeks with re-evaluation for evidence of functional improvement or need for further workup. Continuance of treatment will depend upon functional improvement.\r\nOptimum Duration: 8 to 12 weeks.\r\nMaximum Duration: 3 months. Extended durations of care beyond what is considered “maximum” may be necessary in cases of re-injury, interrupted continuity of care, exacerbation of symptoms, and in those patients with comorbidities.\r\n(Emphasis Added). Medical Treatment Guidelines, First Edition, June 30, 2010, page 49.\r\nWhat constitutes a well-documented exacerbation has been further clarified in Matter of Livingston County, 2011 (NY WC Case No. 7990538). In Matter of Livingston County the Board made clear that in order for a provider to demonstrate a well-documented exacerbations under the medical treatment guidelines the provider must document: (1) when and how the exacerbation occurred; (2) objective changes from the baseline function; (3) expected type and frequency of treatment believed necessary to return the patient to baseline function; and (4) the response to treatment through measures of objective functional improvement.\r\nWhat this means is that if a variance is not sought after 12 weeks of treatment the doctor must show that there is an exacerbation or another basis such as a comorbidity that warrants the treatment beyond the initial 12 weeks. If the medical reports fail to list the criteria as outlined by Livingston County above, file C-8.1s as the provider has failed to adhere to the MTGs.\r\nThe amendments to the Medical Treatment Guidelines of 1/14/13, as effective 3/1/13, allowed for a maintenance program for chiropractic treatment. See, D.10.a.ii. Recent amendments to the Regulations and the Guidelines allow ongoing maintenance care in specific situations after “(A) the Board has made a legal determination that the claimant has a permanent disability, or (B) a medical provider submits a medical opinion evidencing that the claimant has reached maximum medical improvement and has a permanent impairment, in the format prescribed by the Chair for such purpose, and the Board has not yet made a legal determination on maximum medical improvement or permanent disability.” 12 NYCRR § 324.3(a)(5)(ii). Once specific criteria have been met the claimant would be eligible for a maximum of up to 10 visits per year.\r\nThe requirements for satisfying the maintenance care program of spinal manipulation is delineated at § D.11. Pursuant to § D.11 the claimant must be at maximum medical improvement and\r\n<ol>\r\n 	<li>Specific objective goals are identified and measured;</li>\r\n 	<li>Longer trials of withdrawal are attempted to ascertain whether therapeutic goals can be maintained;</li>\r\n 	<li>Within a year and annually thereafter, a trial without maintenance treatment should be instituted;</li>\r\n 	<li>ongoing patient self-management program to encourage physical activity and/or work activities despite residual pain, with the goal of preserving function;</li>\r\n 	<li>self-directed pain management plan should be developed which can be initiated by the patient in the event that symptoms worsen and function decreases.</li>\r\n</ol>','Navigating the Low Back Medical Treatment Guidelines for Chiropractic Care','','publish','closed','closed','','navigating-the-low-back-medical-treatment-guidelines-for-chiropractic-care','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2014/09/navigating-the-low-back-medical-treatment-guidelines-for-chiropractic-care/',0,'post','',0),(46508,25,'2013-12-17 00:00:00','2013-12-17 05:00:00','A Brief Summary:\r\n\r\nZamora reshaped the landscape of New York workers’ compensation law and opened PPD claims to challenges on labor market attachment (provided you can get the case reopened). It also dramatically tightened the legal standards for claimant’s seeking an involuntary withdrawal finding, or those seeking the much vaunted third-leg of the trifecta: pension benefits, Social Security benefits and a compensable retirement under the WCL.\r\n\r\nUnder the old standards, a PPD claimant only needed to show that he or she retired, at least in part, due to a work-related disability in order to secure ongoing benefits that were immune to suspension under American Axle. After Zamora, the Board has conformed its rulings to place a higher burden on claimants seeking a finding of involuntary withdrawal or involuntary retirement. After a brief evolution in legal analyses, the Board confirmed that even after a finding of involuntary withdrawal, a claimant’s benefits are still subject to a challenge under American Axle provided the claim is properly before the Board. Recent Board Panel case law established that a finding of involuntary withdrawal, or involuntary retirement only opens the door to post-separation indemnity benefits; and to get through that door the claimant must make a showing of attachment to the labor market in the first instance, and also as benefits continue provided that the case is reopened. County of Nassau, 2013 NY Wrk Comp. 20702386; Monroe Muffler &amp; Brake, 2013 NY Wrk. Comp. 99506849.\r\n\r\nWhen confronted with a claim on involuntary withdrawal or involuntary retirement, carriers and self-insured employers should be prepared to challenge the claimant by demanding proof of labor market attachment in the wake of the claimant’s separation from employment and try to avoid the invocation of Zamora’s “permissible inference” about ongoing lost wages after separation. Even losing at that point, however, carrier’s and SIEs can nonetheless demand ongoing proof of attachment to justify a continuing payment order or the updating of awards when a PPD case is reopened.\r\n\r\nEmployers who can control the terms of their retirement policies and plans should seek to close out the first leg of the trifecta by including terms offsetting retirement payments or pension payments against cotemporaneous workers’ compensation awards, and requiring all employees to certify under penalty of perjury that they are not retiring due to a work-related injury before being granted a retirement or pension. Incentive retirement offers should be similarly structured and should also require a claimant’s certification for his reason to retire to act as a disincentive to a subsequent claim for a compensable retirement through the Workers’ Compensation Board.\r\n\r\nThe Details:\r\n\r\nUntil recently Board Panels and the Third Department held the standard for involuntary withdrawal from the labor market shockingly low. “As a general rule, a withdrawal is not voluntary where there is evidence that the claimant’s disability caused or contributed to the retirement.” Matter of Bury v. Great Neck UFSD, 14 AD3d 786 (3d Dept. 2005). Once the presiding Law Judge was satisfied that a claimant had retired due to his or her work injury, often even with the most remote of links, the claimant automatically received the benefit of an inference that his or her ongoing lost wages after retirement were attributable to his or her work-related injury. Matter of Pittman v. ABM Indus., Inc., 24 A.D.3d 1056, 1057 (3d Dept 2005); Matter of Dudlo v Polytherm Plastics, 125 AD2d 792, 793 (3d Dept. 1986). Taken together, these legal principles created what practitioners sometimes call a “compensable retirement.”\r\n\r\nA carrier did have a defense to such a claim, but the standard of proof was practically unreachable in most cases. To rebut the mandatory inference of Pittman a carrier had to produce direct and positive proof that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement. Pittman, 24 A.D.3d 1056, 1058.\r\n\r\nPractically, cases in this line followed a fairly common fact pattern. Usually, a claimant from a fairly large employer that provided a pension or retirement plan would be injured at work. Medical treatment would begin and at some point the claimant, a treating doctor, or both, would determine that the claimant’s former work duties were unmanageable given the work injury and the claimant would “retire.” A savvy claimant’s counsel would then step into the case and raise “involuntary withdrawal” and a claimant would, in short order, appear and testify that their doctor recommended retirement, or they simply couldn’t return to their former employment due to a work injury. Even where a claimant took an incentive-based retirement, or a regular service-based retirement, such statements were usually sufficient to satisfy the Bury standard of proof; and the Law Judge would then turn to the carrier or self-insured employer and ask them to produce proof that the claimant’s ongoing lost wages were solely due to something other than the claimant’s work injury. Usually, the best proof a carrier could offer was proof of poor economic conditions, which only occasionally was sufficient to overcome the mandatory “inference” laid out in Pittman.\r\n\r\nAt many large employers, self-insured municipalities and basically any employer that offered some type of retirement package, the “compensable retirement” became the third-leg of what is commonly referred to as the “trifecta” – a claimant obtaining a pension, Social Security benefits, and a compensable retirement from the Workers’ Compensation Board. With no offset against old-age Social Security benefits, and with retirement contracts that usually provided no offset provisions, these claimants could retire and earn more money than they did working full duty.\r\n\r\nI can tell you from experience, defense attorneys met claims for a compensable retirement under Pittman with a great deal of frustration. The claimant’s burden was almost laughably low while the defense carried a burden almost impossible to meet.\r\n\r\nThankfully, in 2012 the Court of Appeals handed down its decision in Zamora v. New York Neurologic Associates, 19 N.Y.3d 186 (2012). Everyone active in New York workers’ compensation has probably seen a dozen articles on the sea change this case made in New York workers’ compensation law. Permanent Partial Disability claimant’s lost a layer of protection against labor market attachment challenges and cases that sat paying out lifetime PPD benefits suddenly had hope, and a chance, to reign in benefits and force a claimant to produce labor market attachment proofs.\r\n\r\nApart from providing hope, Zamora threw out Pittman and the its progeny and replaced the mandatory presumption regarding the cause of lost wages with a permissible inference. To get this inference, a claimant now needed to set forth evidence showing that his or her ongoing lost wages were indeed causally related to the claim. The Court of Appeals went further, and by example softened the defense standards for a compensable retirement:\r\n\r\nBy finding alternative work consistent with his or her physical limitations, or at least showing reasonable efforts at finding such work, the claimant can prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again . . .\r\n\r\nIf . . . the Board considers a disability to be one that prevents the claimant from pursuing the trade in which she was engaged at the time of the accident, while allowing her to undertake many other jobs that pay as well, it will likely not make the inference.\r\n\r\nIn the wake of Zamora, the Board revised its approach to involuntary withdrawal analyses in two phases. Ossing, 2012 NY Wrk. Comp. 30501462 is solid example of the Board’s first evolution beyond Pittman and its approach to claimants with a permanent disability.\r\n\r\nIn Ossing the Board considered a claimant who was found to have a permanent disability and was later sent a letter by his employer informing him that he would be “removed from payroll” because he had missed more than one year of work. The claimant subsequently retired, apparently to preserve what vested retirement rights he had at the time, and turned to the workers’ compensation Board seeking a compensable retirement. At the trial level, the Law Judge found that the claimant voluntarily withdrew from the labor market and closed the case. On appeal, the Board reversed, ruling that Zamora now required claimant’s to both show that the work-related disability was the reason for separation from employment and that the claimant has found “alternate work consistent with his or her physical limitations, or at least [show] reasonable efforts at finding such work.” Id. citing Zamora. Further citing Zamora, the Board noted that “[t]his evidentiary burden, if carrier, can prove to the Board that the cause of his or her reduced income is a disability, rather than an unwillingness to work again. Id.\r\n\r\nIn applying this analysis, the Board found that the letter from the employer about the claimant’s impending termination was the claimant’s impetus for taking a retirement and that his withdrawal was involuntary. However, the Board went on to rule, citing Zamora, “that to compel an inference of causally related lost earnings from …an involuntary separation would illogically constrain the ability of the Board to find facts, and would shift the burden of proof from claimant to employer. As such any inference is applied is based on the Board’s evaluation of the evidence on disability and attachment.” Finding that the record contained no evidence of post-retirement attachment, the Board returned the case to the hearing level for development of the record on “whether and to what extent the claimant looked for work…even through the claimant need not meet the standard of American Axle (2010 NY Wrk Comp 80303659).”\r\n\r\nOssing represents an intermediate step in the Board’s use of Zamora on the issue of involuntary withdrawal. Compared to Pittman, the Board now insisted that the claimant bear the burden in the first instance of proving not only the circumstances of his retirement, but also whether he was simply unwilling to continue working. The Board also adopted a “something-less-than-American Axle” standard that confounded practitioners insofar as the Board simply stated that the claimant had to make a showing of a post-retirement job search, but how genuine that search needed to be was left open-ended. The Ossing interpretation of Zamora left open the possibility that a claimant could, after making some decidedly more significant showings, still end up with a guaranteed stream of benefits unencumbered by the obligation to remain attached under American Axle.\r\n\r\nIn dealing with unclassified claimants, the Board provided a much simpler analysis that remains unchanged. In Endicott, 2013 NY Wrk. Comp. 0254179, the Board, after following much the analysis it laid out in Ossing, noted in no uncertain terms that only classified claimant’s had any hope of protection.\r\n\r\nWhile an inference of causation may be drawn from a disability-related withdrawal when there has been a finding of permanent partial disability, a claimant with a temporary partial disability must look for work within the limits of his or her partial disability.\r\n\r\nId. (internal citations omitted). So while a PPD claimant might be able to shake off American Axle, an unclassified claimant gets no benefit from a finding of involuntary withdrawal and must continue to seek employment or otherwise remain attached.\r\n\r\nThe final evolution of the Board’s assimilation of Zamorafor PPD cases is illustrated in County of Nassau, 2013 NY Wrk Comp. 20702386. In Nassau the Board held that although the record demonstrated that the claimant’s permanent partial disability “cause or contributed to her retirement . . . the claimant’s [subsequent] loss of wages is due to her lack of demonstrated attachment to labor market.” In reciting the facts, the Board noted that:\r\n\r\nThe record in this case reflects that since the claimant stopped working in October 2010 and by her own admission she has not conducted a regular work search. Her work search, such as it was, was sporadic and casual, consisting of few inquiries to business owners of her acquaintance; an occasional review of the newspaper classifieds every now and then; and an occasional internet search. While the claimant testified that she registered with Hempstead Works, there is no evidence of an active participation; the claimant conceded that she conducted a work search on less than a monthly basis and she testified that, in the last year she has applied for a total of five or six jobs. While the claimant stated she maintained a written work search listing, no such listing appears in the record for review by the Board.\r\n\r\nThe Board went on to note that the claimant could “reattach” to regain ongoing benefits provided she produced proof of attachment meeting the standards of American Axle.\r\n\r\nIn the same track, in Monroe Muffler &amp; Brake, 2013 NY Wrk. Comp. 99506849 the Board considered a claimant, classified with a PPD in 2000, and his claim for an involuntary withdrawal back in 1995 when he stopped working for the employer of record. At the trial level, the Law Judge held that the claimant was involuntarily withdrawn in 1995 and that, pursuant to Zamora, was thereafter entitled to ongoing benefits without further analysis.\r\n\r\nOn appeal, the Board affirmed, but for different reasons:\r\n\r\nWhile the Board Panel concurs in the WCLJ’s finding that the claimant’s cessation/separation from employment in 1995 was due at least in part to his crushed foot injury and disability, and while this means that the claimant’s separation from employment was not voluntary, this fact alone no longer compels the application of an inference that the claimant’s subsequent loss of earnings necessarily resulted from the disability. That said, the Board Panel must now evaluate the record on the issue of whether the claimant has shown sufficient attachment to the labor market subsequent to his involuntary removal from the labor market in August 1995 so as to remain entitled to indemnity awards.\r\n\r\nThe Board went on to analyze the claimant’s post-separation attachment efforts and found them sufficient to justify post withdrawal awards.\r\n\r\nIn Monroe Muffler and Nassau the Board has reversed its former holdings under Pittman completely.\r\n\r\nClaimants can no longer rely on low standards of proof and improperly shifted burdens to claim ongoing benefits after a separation from employment simply because they are classified. When litigating involuntary withdrawal and compensable retirement claims, counsel can now force the claimant to make a higher showing at the outset and, even if initially unsuccessful, can nonetheless force a claimant to produce proof of attachment to the labor market each time the claim reopens.\r\n\r\n<strong>To discuss how you can prevent the compensable retirement claim or revisit your existing compensable retirement/pension claims, please feel free to contact me.</strong>','DID YOU KNOW? THE BOARD HAS RETIRED THE CONCEPT OF THE COMPENSABLE RETIREMENT. The Death Knell of the Trifecta: Zamora and the so-called “Compensable Retirement”','','publish','closed','closed','','did-you-know-the-board-has-retired-the-concept-of-the-compensable-retirement-the-death-knell-of-the-trifecta-zamora-and-the-so-called-compensable-retirement','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/12/did-you-know-the-board-has-retired-the-concept-of-the-compensable-retirement-the-death-knell-of-the-trifecta-zamora-and-the-so-called-compensable-retirement/',0,'post','',0),(46509,25,'2013-11-30 00:00:00','2013-11-30 05:00:00','Please consider the following excerpt from an Application for Review recently submitted to the Board on an appeal of a LWEC finding. In this claim the claimant was able to return to work as a law enforcement officer without any reduction in earnings following cervical surgery.\r\n\r\nTHE DECISION THAT THE CLAIMANT HAS A 35% LWEC IS ARBITRARY AND CAPRICIOUS.\r\n\r\nThe Board is fully aware that it has not provided any rational method for converting the severity of the medical impairment and the vocational factors into a percent loss of wage earning capacity. Indeed, the term loss of wage earning capacity has yet to be defined despite General Counsel’s promise that regulations would be promulgated providing this kind of clarification.\r\n\r\nThe fact is that in its decisions interpreting LWEC findings, the Board and judges are merely reciting the factors which should be taken into account – severity of the medical impairment, Functional and Exertional Abilities and Losses, Age, Education, Transferable Skills and English Language Proficiency – and generating a LWEC percent without any explanation for how the adjudicator reached his or her penultimate number. The judge forces the parties to take a blind leap across an inscrutable chasm filled with the above factors to arrive at a LWEC percentage. This is what happened in this case.\r\n\r\nAs the Permanent Impairment Guidelines provide, the inquiry into loss of wage earning capacity:\r\n\r\n…seeks to quantify how much earning power an injured worker has lost in light of his or her medical impairment, functional limitations, prior work history, education, skills, and aptitudes.\r\n\r\nPILWECG at p. 46.\r\n\r\nIn this claim, the WCLJ found that the Claimant has a 35% LWEC. Hence, using the Board’s description above, the Claimant has lost 35% of his earning power. There is simply no support in the record for the conclusion that the claimant is only earning or will only earn 65% of what he would have earned without the accident.\r\n\r\nAs a result, finding that the Claimant’s LWEC can be quantified at 35% is not based on reason or evidence – the very definition of arbitrary and capricious.\r\n\r\nDo you agree or disagree?','A Blind Leap across an Inscrutable Chasm – Arbitrary and Capricious Loss of Wage Earning Capacity (LWEC) Determinations','','publish','closed','closed','','a-blind-leap-across-an-inscrutable-chasm-arbitrary-and-capricious-loss-of-wage-earning-capacity-lwec-determinations','','','2022-08-31 09:17:52','2022-08-31 13:17:52','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/11/a-blind-leap-across-an-inscrutable-chasm-arbitrary-and-capricious-loss-of-wage-earning-capacity-lwec-determinations/',0,'post','',0),(46511,25,'2013-10-10 00:00:00','2013-10-10 04:00:00','According to Board Subject #046-630, there are five mechanisms by which the issue of WCL §25-a may be raised prior to January 1, 2014:\r\n1.) The claimant’s filing of a written application for compensation;\r\n2.) The filing of a medical report indicating a change of condition;\r\n3.) The carrier’s filing of a request, on a form RFA-2, to transfer liability to Special Funds when there is proof that further medical or indemnity benefits are payable;\r\n4.) Any party’s raising the issue of WCL § 25-a liability at a hearing; or\r\n5.) The Board’s raising the issue on its own motion. Matter of DEL Labs, 2009 NY Wrk Comp 2940 8739.\r\nSee <a href=\"https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/SubjectNos/sn046_630.jsp#!\" target=\"_blank\" rel=\"noopener\">https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/SubjectNos/sn046_630.jsp#!</a>\r\n\r\nBased on this language, there may be an argument that shifting liability to the Fund for Reopened Cases under WCL §25-a does not require an affirmative application by the carrier or employer prior to 1/1/14, but certainly this is the safest and best course of action.\r\n\r\nBoard Subject #046-630 also sets forth “principles” for the submission of “proper and complete” applications for WCL §25-a applications and indicates that “incomplete” applications will not be considered as of the December 31, 2013 deadline.\r\n\r\nLeaving for the moment the issue of whether the Board has the authority to create “principles” which could affect the substantial rights of the parties by issuing a Subject Number, to avoid having this argument with the Board it appears that the employer or carrier must now submit an application with a detailed factual and legal offer of proof as to how the claim qualifies for WCL §25-a relief or risk having an application determined to be incomplete and thus a defective application for WCL §25-a relief.\r\n\r\nNow, in addition to having a case where there is a claim (an application for payment by the claimant or a health care provider) made more than seven years after the date of injury and more than three years after the last payment of compensation on a claim that has been truly closed, it appears that the employer or carrier must also submit a complete written application which will require the following to minimize the risk of having an application be deemed incomplete:\r\n\r\n<strong>CARRIER OR EMPLOYER’S COMPLETE WRITTEN APPLICATION</strong>\r\n\r\n1.) The carrier must support its application with an offer of proof as to why § 25-a relief should be granted as of the date of the application. The Request for Further Action (RFA-2) application must include the factual and legal basis for the application, and refer specifically to Board documents and/or attachments.\r\n\r\n2.) The factual and legal requirements of § 25-a transfer must exist at the time of that application. Therefore preemptive applications or subsequently cured applications will not suffice.\r\n\r\n3.) Affirmative support for the carrier’s application for WCL § 25-a relief includes:\r\n\r\na. Claimant has not lost any time since the true closing of the case;\r\n\r\nb. No advance payments of compensation have been made;\r\n\r\nc. If same employer, claimant working at full salary and not under light duty;\r\n\r\nd. No medical report demonstrating a change in condition or that could be taken as a medical provider’s request to reopen;\r\n\r\ne. At time of closure, there were no foreseeable ongoing issues.\r\n\r\nSee <a href=\"https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/SubjectNos/sn046_630.jsp#!\" target=\"_blank\" rel=\"noopener\">https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/SubjectNos/sn046_630.jsp#!</a>\r\n\r\nThese requirements are troublesome and potentially onerous and one has to assume that the Board is going to require strict adherence to these “principles” or run the risk that the application will be deemed “incomplete.”\r\n\r\nA complete application thus must include some proof or assertion that two basic criteria for obtaining WCL §25-a are met:\r\n\r\n1.) The case was truly closed;\r\n2.) There has not been a reopening within the prohibited time frame.\r\n\r\n<strong>These are frequently complicated and mixed questions of law and fact and employers or carriers would likely best be served by referring such applications during the remaining weeks of 2012 to defense counsel.</strong>\r\nA. SHOW THAT THERE HAS BEEN PAYMENT OF COMPENSATION WITHIN THREE YEARS OF THE REOPENING.\r\ni. Claimant Return to Work at the Employer of Record:\r\nIf the Claimant has returned to work at the employer of record, the Board appears to be requiring proof that there has been no advance payment of compensation. It is not clear what proof will suffice. At a minimum it would appear that the RFA-2 should have the following attached to it:\r\n\r\n· A statement/correspondence/letter from the employer on its letterhead indicating that the claimant has not had any lost time as a result of the injury, and that no advance payment of compensation has been made, and that the claimant has been working at full salary and not under light duty would likely suffice. Alternatively, an affidavit could be prepared.\r\n\r\n· A C-25, or the Claimant’s Application for Reopening of Claim, More Than Seven Years after Accident, which indicates that the claimant has not had any lost time as a result of the injury, has not received an advance payment of compensation from the employer of record, and that the claimant has been working at full salary and not under light duty would also in all likelihood be sufficient.\r\n\r\nIf the Claimant retired from the employer of record litigation might ensure on the issue of whether this was DB or regular retirement, and in either event, whether the claimant was attached to the labor market.\r\nii. Claimant Returned to Work at another Employer\r\nWhen the claimant has returned to work at a different employer the issue of advance payment of compensation is generally not as likely of an impediment to WCL §25-a relief, although if the claimant return to work at the employer of record at all after the closing, the employer or carrier should still be concerned about advance payment of compensation.\r\n\r\nHowever, it appears that the Board will be requiring the carrier or employer to submit affirmative “support” with the application demonstrating that the claimant did not have any lost time or reduced earnings as a result of the injury. As a result, the employer or carrier should attach either a C-25 or some other evidence demonstrating that the claimant has not had any lost time to its RFA-2 in a claim where the claimant returned to work for a different employer.\r\n\r\nThe C-25 is supposed to provide evidence that the claimant has not had any lost time as a result of the injury or that the claimant has been working at full salary and not under light duty. The challenge will be on those claims when the claimant returned to work at another employer and is unresponsive to requests for completion of a C-25 or submits an incomplete form. There are several possible mechanisms for addressing this contingency such as subpoena, attorney affirmation after reviewing eCase, affidavit of an adjuster who spoke to the claimant which might provide the requisite affirmative showing that the\r\nB. SHOW THAT THERE HAS BEEN A TRUE CLOSING AND THAT NO MEDICAL REPORT REOPENED THE CASE WITHIN SEVEN OR THREE.\r\nIn addition to providing evidence that there has been no payment of compensation during the prohibited time period, the RFA-2 should also probably include a letter or other statement asserting that the medical reports do not demonstrate a change in condition or that could be taken as a medical provider’s request to reopen and that there were no open ongoing issues at time of closure such that the case was truly closed.\r\n\r\nGiven these new requirements, the most prudent employers and carriers will likely have defense counsel obtain the requisite evidence and then prepare a letter making arguments about the legal and factual reasons that liability should be shifted to the Fund for Reopened Cases in support of applications for WCL §25-a before 1/1/14.','LESS THAN TWELVE WEEKS REMAINING FOR WCL §25-a! Because Subject # 046-630 Contains Stricter Requirements for Reopening a Claim on the Issue of §25-a, Prudent Carriers and Employers May Want to Refer Applications to Defense Counsel','','publish','closed','closed','','less-than-twelve-weeks-remaining-for-wcl-%c2%a725-a-because-subject-046-630-contains-stricter-requirements-for-reopening-a-claim-on-the-issue-of-%c2%a725-a-prudent-carriers-and-employers-may-want','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/10/less-than-twelve-weeks-remaining-for-wcl-%c2%a725-a-because-subject-046-630-contains-stricter-requirements-for-reopening-a-claim-on-the-issue-of-%c2%a725-a-prudent-carriers-and-employers-ma',0,'post','',0),(46512,25,'2013-09-13 00:00:00','2013-09-13 04:00:00','I would really appreciate it if the members of the New York WC Forum, and visitors to this page, would request that the Board reach out to the NY Workers’ Compensation Forum as part of its plans to, ” reach out to stakeholders through several means, including face–to–face meetings, video conferences, conference calls, broad–based surveys, and email.”\r\n\r\nGiven that there are currently 929 members/stakeholders in the forum, we seem like a natural place for the BPR team to look for input.\r\n\r\nTo encourage the BPR to include our voices in the re-engineering process, I would ask that the group members e-mail the BPR Team and encourage them to include us in the dialogue. For your convenience, you can copy and paste the following message and send it to the address below:\r\n\r\nGreetings BPR Team!\r\n\r\nWe are very excited that the Board has commenced a Business Process Re-engineering Project and look forward to implementation of process and technological improvements following the BPR Team’s recommendations.\r\n\r\nGiven the indication that the BPR team plans to “reach out to stakeholders through several means, including face–to–face meetings, video conferences, conference calls, broad–based surveys, and email” we would ask that the New York Workers’ Compensation Forum be included in that dialogue. The group’s membership is currently at 929 members/stakeholders and thus seems to be a natural place to look for suggestions for improvements.\r\n\r\nThe vision of the NY Workers Compensation Forum has always been that our collective knowledge and experience are so much more powerful than any one individual’s and the Board appears to recognize this maxim in acknowledging that, “The workers’ compensation community has many constructive, intelligent ideas for improving the system, and the Board is eager to hear them.”\r\n\r\nAs a result, we would encourage the BPR Team to reach out to the NY WC Forum’s members by posting discussions in the group!\r\n\r\nEagerly Anticipating the Improved Processes,\r\n\r\nA New York Workers’ Compensation Forum Member\r\n\r\n<a href=\"mailto:bpr@wcb.ny.gov\" target=\"_blank\" rel=\"noopener\">bpr@wcb.ny.gov</a>\r\n\r\nLET’S MAKE SURE THAT WE ARE HEARD!!!!!','BOARD PROCESS RE-ENGINEERING (“BPR”) – NY WORKERS’ COMPENSATION FORUM MEMBERS SHOULD BE INCLUDED IN THE DIALOGUE','','publish','closed','closed','','board-process-re-engineering-bpr-ny-workers-compensation-forum-members-should-be-included-in-the-dialogue','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/09/board-process-re-engineering-bpr-ny-workers-compensation-forum-members-should-be-included-in-the-dialogue/',0,'post','',0),(46540,25,'2013-08-14 02:07:11','2013-08-14 06:07:11','The United States Court of Appeals for the 2nd Circuit has certified a question of law to New York’s Court of Appeals on whether a defendant may maintain an action for contribution from the owner of motor vehicle when the driver is protected by the exclusivity provisions of NY WCL?\r\n\r\nIn the decision of Isabella v. Hallock (v. Koubek), decided yesterday by the Second Circuit Court of Appeals, the Court certified the following question to New York’s Court of Appeals as it is permitted to do pursuant to the Court’s local rules:\r\n\r\nWhether a defendant may pursue a third-party contribution claim under New York Vehicle and Traffic Law § 388 against the owner of a vehicle, where the vehicle driver’s negligence was a substantial factor in causing the plaintiff’s injuries, but the driver is protected from suit by the exclusive remedy provisions of New York Workers’ Compensation Law §29(6)?\r\n\r\nIn this case, the plaintiff was a passenger in a car owned by his employer which was driven by a co-employee. Both the driver/co-employee and the owner/employer were immune from direct suit by the injured passenger/employee by the exclusivity provisions of the WCL. The employee/passenger sued defendants who were the driver and owner of the other vehicle involved in the accident. Defendants filed a 3 party action against the employer/owner for contribution for the injuries sustained by his employee.\r\n\r\nThe Court noted that the driver/co-employee was immune from a suit by defendants against her because of the exclusivity provisions of the WCL §29(6) which provides:\r\n\r\nThe right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee…when such employee is injured or killed by the negligence or wrong of another in the same employ…The limitation of liability of an employer set forth in section eleven of this article for the injury or death of an employee shall be applicable to another in the same employ…\r\n\r\nThe Court also noted that the employer’s and co-employee’s liability for a claim for contribution is limited by WCL §11:\r\n\r\nThe liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee . . . or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom…\r\n\r\n…An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a “grave injury”…\r\n\r\nHowever, NY’s Vehicle &amp; Traffic Law §388 provides:\r\n\r\nEvery owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner.\r\n\r\nHence WCL §§29(6) and 11 would prevent a claim for contribution whereas V &amp; TL §388 would permit the action.\r\n\r\nAlthough the 2 Circuit notes that there is case law in NY which suggests that the owner of the vehicle should be immune from liability for the negligent acts of its employee which caused a co-employee’s injuries, it found that the two competing policy interests of statutes in question – the exclusivity provisions of the WCL and the vicarious liability of the owner of a negligently operated vehicle, cannot be reconciled by either the statutory language nor in case law directly on point.\r\n\r\nA copy of the 2nd Circuit’s analysis in the decision can be found at the link below.\r\n\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentgetmad.today/wp-content/uploads/2014/12/hallock_v._koubek.pdf\" target=\"_blank\" rel=\"noopener\">hallock_v._koubek</a>','DID YOU KNOW? The 2nd Circuit certified a question to the NY Court of Appeals on the exclusivity provision of the WCL?','','publish','closed','closed','','did-you-know-the-2nd-circuit-certified-a-question-to-the-ny-court-of-appeals-on-the-exclusivity-provision-of-the-wcl','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/?p=46540',0,'post','',0),(46541,25,'2013-08-03 00:00:00','2013-08-03 04:00:00','In an action filed in New York County Supreme Court on July 30, 2013, twenty workers’ compensation insurance carriers seek a declaratory judgment that the recent amendments to WCL §25-a which eliminates the Fund for Reopened Cases is unconstitutional.\r\n\r\nThe plaintiffs, which include Liberty Mutual Insurance Company, Peerless Insurance Company and the Employers Insurance Company of Wausau, assert that the elimination of the Fund for Reopened Cases violates the contract clause of the United States Constitution, amounts to a deprivation of a property interest in violation of the due process clauses of the United States and New York State constitutions, and amounts to an improper taking of plaintiff’s property without just compensation in violation of the takings clauses under the United States and New York State constitutions. The State of New York, the New York State Department of Financial Services and the New York Worker’s Compensation Board are named as defendants.\r\n\r\nSimilar constitutional challenges were raised following enactment of the mandatory deposits into the Aggregate Trust Fund following the 2007 reforms to the Worker’s Compensation Law and were unsuccessful. In the Matter of Raynor v. Landmark Chrysler, 18 N.Y.3d 48 (2012), New York’s Court of Appeals from there was no violation of the Takings Clause because the statute did not increase the amount of compensation owed to the claimant and did not appropriate the carrier’s assets for use by the state.\r\n\r\nThe Court also found the statute did not violate the contracts clause of the United States Constitution finding no substantial impairment to the insurance contract despite an acknowledgment that the carrier’s contract may have become less profitable as a result of the mandatory deposit into the Aggregate Trust Fund.\r\n\r\nIn addition, in Raynor, the Court of Appeals found no violation of substantive or procedural due process rights because there was no vested property right in as much as the amendment did not increase the amount that the carriers owed, and the carrier failed to show that the statute was without legal justification or supported by a rational legislative purpose.\r\n\r\nInterestingly, plaintiffs filed suit in New York County, not Albany County. Following a decision by the Supreme Court an appeal would be taken to the First Department, not the Third Department. The latter hears all appeals from adverse decisions of the Workers’ Compensation Board and the Board has historically enjoyed a favorable affirmance rate in the Third Department.\r\n\r\nI would expect further litigation in connection with the amendments to WCL §25-a with respect to its retroactive application once the amendment becomes effective on January 1, 2014. Given the language in the statute permitting an application for WCL-25-a relief to be filed for those claims which are ripe for adjudication of the issue prior to the effective date of the amendment, the legislature may have solved the retroactivity problem which was adjudicated in the decision of the Matter of Mills v. Staffking, 271 A.D.2d 146 (3 Dept. 2000) following the change in the retention period for reimbursement from the Special Disability Fund under WCL § 15(8) from 104 to 260 weeks. In Mills, the Third Department held that the retention period could not be changed from 104 to 260 weeks for those claims where the entitlement to WCL §15(8) relief was established as of the effective date of the amendment.\r\n\r\nStay tuned. A copy of the complaint can be accessed below.\r\n\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2013/08/Challenge-to-the-Closing-of-the-25-a-Fund.pdf\" target=\"_blank\" rel=\"noopener\">Challenge to the Closing of the 25-a Fund</a>','DID YOU KNOW? Twenty Insurance Carriers Have Filed an Action Seeking to Obtain a Declaration that the Elimination of The Fund for Reopened Cases Is Unconstitutional.','','publish','closed','closed','','did-you-know-twenty-insurance-carriers-have-filed-an-action-seeking-to-obtain-a-declaration-that-the-elimination-of-the-fund-for-reopened-cases-is-unconstitutional','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/08/did-you-know-twenty-insurance-carriers-have-filed-an-action-seeking-to-obtain-a-declaration-that-the-elimination-of-the-fund-for-reopened-cases-is-unconstitutional/',0,'post','',0),(46542,2461,'2021-08-18 02:07:27','2021-08-18 06:07:27','','Challenge-to-the-Closing-of-the-25-a-Fund','','inherit','closed','closed','','challenge-to-the-closing-of-the-25-a-fund','','','2021-08-18 02:07:27','2021-08-18 06:07:27','',46541,'/wp-content/uploads/sites/1503150/2013/08/Challenge-to-the-Closing-of-the-25-a-Fund.pdf',0,'attachment','application/pdf',0),(46543,25,'2013-07-20 00:00:00','2013-07-20 04:00:00','In a lengthy decision handed down by a divided court on July 18, 2013, the Third Department held that medical treatment which is not specifically included in the MTG is presumptively unnecessary and it is Claimant’s burden to overcome this presumption by proving medical necessity when a variance is sought.\r\nThe decision and an article from the New York Law Journal can be accessed below.\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2013/07/Treatment-Outside-MTG-is-Pre-Determined-as-Not-Medically-Necessary.pdf\" target=\"_blank\" rel=\"noopener\">Treatment Outside MTG is Pre-Determined as Not Medically Necessary</a>\r\nNew York Law Journal_ Workers Comp Reform Named Approved Procedures Judges Say','DID YOU KNOW? THE THIRD DEPARTMENT HOLDS THAT MEDICAL TREATMENT WHICH IS NOT SPECIFICALLY INCLUDED IN THE MTG IS PRESUMPTIVELY NOT MEDICALLY NECESSARY.','','publish','closed','closed','','did-you-know-the-third-department-holds-that-medical-treatment-which-is-not-specifically-included-in-the-mtg-is-presumptively-not-medically-necessary','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/07/did-you-know-the-third-department-holds-that-medical-treatment-which-is-not-specifically-included-in-the-mtg-is-presumptively-not-medically-necessary/',0,'post','',0),(46545,2461,'2021-08-18 02:07:34','2021-08-18 06:07:34','','New-York-Law-Journal_-Workers-Comp-Reform-Named-Approved-Procedures-Judges-Say','','inherit','closed','closed','','new-york-law-journal_-workers-comp-reform-named-approved-procedures-judges-say','','','2021-08-18 02:07:34','2021-08-18 06:07:34','',46543,'/wp-content/uploads/sites/1503150/2013/07/New-York-Law-Journal_-Workers-Comp-Reform-Named-Approved-Procedures-Judges-Say.pdf',0,'attachment','application/pdf',0),(46546,25,'2013-07-13 00:00:00','2013-07-13 04:00:00','It used to be nearly impossible to reopen a claim based on a defense of labor market attachment when a unemployed claimant had been classified with having a Permanent Partial Disability and entitled to ongoing benefits.  Although there are still challenges in getting these claims reopened on the issue of labor market attachment, the Board has articulated circumstances under which a claim involving ongoing PPD benefits to a claimant who is not working can be reopened on the issue of labor market attachment.\r\n\r\nWhen an employer or carrier wants to challenge ongoing PPD benefits, simply sending out job search letters will likely not be sufficient to reopen a claim on the issue of labor market attachment.\r\n\r\nHere’s what the Board looks at when reviewing an RFA to reopen a PPD claim:\r\n\r\nWhile a claimant’s failure to respond to a work search inquiry without something more may not constitute sufficient evidence of a triable issue of fact upon which a reopening may be based, a claimant’s response, or lack thereof, to other communications from the employer or its carrier may meet the employer’s burden of producing evidence that something other than a claimant’s disability is the reason for the post-classification loss of wage earning capacity. These communications include, but are not limited to:\r\n<ul>\r\n 	<li>An employer’s offer of light duty work within the claimant’s medical restrictions, or</li>\r\n</ul>\r\n<ul>\r\n 	<li>An actual offer of retraining or job search assistance by a firm in the business of providing such services.</li>\r\n</ul>\r\nAn unemployed claimant’s failure to respond to such offers, or an unexplained rejection of such offers, raises an issue of fact that something other than the claimant’s disability may be the reason for the continued loss of wages.\r\n\r\n(For an employed claimant – evidence of claimant’s retirement, leaving a light duty job, or a change in the claimant’s condition may also raise a triable issue of fact sufficient to reopen the case.)\r\n\r\nSimply sending a letter indicating that the carrier or employer is willing to provide such services does not appear to be sufficient.  Based on the Board Panel decisions, the offer of assistance must an actual offer of retraining, or a specific offer of job search assistance through a company which provides such services, not simply an indication that the carrier will offer such services.\r\n\r\nThus, the likely best practice if a carrier or employer wants to challenge a PPD claimant’s entitlement to ongoing benefits is to retain a retraining or job search assistance company and have the company send a correspondence to the claimant detailing the services that will be provided.  Of course, the letter should be simultaneously copied to the Claimant’s attorney.  Simultaneously sending job search letters may bolster an eventual RFA-2 on the issue of labor market attachment.  All such submissions must comply with Rule 300.23(c)(1).\r\n\r\nA carrier or employer may want to weigh the chances that such an individual could make a claim for a total industrial disability when challenging his or her entitlement to PPD benefits.  Thus, having a vocational firm perform a preliminary assessment of the claimant’s employability may be advisable before making a decision to employ this kind of strategy.  Additionally, carriers and employers should be mindful that the disability rate at which a claimant is being paid may be lower than an actual reduced earnings rate if the claimant’s wage earning capacity is significantly compromised and he or she successfully returns to work.\r\n\r\nIf an employer or carrier is prepared to actually help a claimant find work by utilizing a retraining or job search assistance company, both it and/or the claimant may benefit – either through a defense based on labor market attachment, or, the panacea of good results for an industrially disabled individual, through a job which accommodates the employee’s Permanent Partial Disability.','DID YOU KNOW? AN EMPLOYER OR CARRIER MAY BE ABLE TO REOPEN A PPD CLAIM ON THE ISSUE OF LABOR MARKET ATTACHMENT.','','publish','closed','closed','','did-you-know-an-employer-or-carrier-may-be-able-to-reopen-a-ppd-claim-on-the-issue-of-labor-market-attachment','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/07/did-you-know-an-employer-or-carrier-may-be-able-to-reopen-a-ppd-claim-on-the-issue-of-labor-market-attachment/',0,'post','',0),(46548,2461,'2021-08-18 02:07:40','2021-08-18 06:07:40','','Treatment-Outside-MTG-is-Pre-Determined-as-Not-Medically-Necessary','','inherit','closed','closed','','treatment-outside-mtg-is-pre-determined-as-not-medically-necessary','','','2021-08-18 02:07:40','2021-08-18 06:07:40','',46543,'/wp-content/uploads/sites/1503150/2013/07/Treatment-Outside-MTG-is-Pre-Determined-as-Not-Medically-Necessary.pdf',0,'attachment','application/pdf',0),(46549,25,'2013-04-30 00:00:00','2013-04-30 04:00:00','<a href=\"https://thelomad.com/getmad.today/wp-contentassembly.state.ny.us/leg/?default_fld=&amp;bn=S00076&amp;term=2013&amp;Summary=Y&amp;Actions=Y&amp;Votes=Y&amp;Memo=Y&amp;Text=Y\" target=\"_blank\" rel=\"noopener\">BILL NUMBER: S76</a>\r\n\r\nTITLE OF BILL:\r\nAn act to amend the workers’ compensation law, in relation to permanent total disability\r\n\r\nPURPOSE OR GENERAL IDEA OF BILL:\r\nThis bill will create a presumption of permanent total disability for claimants who are found eligible for federal social security disability benefits.\r\n\r\nSUMMARY OF SPECIFIC PROVISIONS:\r\n\r\nSection one of the bill amends Section 15(1) of the workers’ compensation law to allow claimants who are approved for social security disability benefits to be considered permanently totally disabled in the absence of conclusive proof to the contrary.\r\n\r\nJUSTIFICATION:\r\n\r\nWorkers who are injured or become ill on the job often apply for federal social security disability benefits after suffering such a condition. The federal eligibility standard for these benefits is that the claimant is “unable to engage in substantial gainful activity.” This standard requires that an injured worker must be unable to perform any work activity on a full-time sustained basis and is essentially considered “totally disabled” by the social Security Administration. A claimant whose condition is severe enough to meet this disability standard should be eligible for permanent total disability benefits under the workers’ compensation law.\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2013/04/Senate-Bill-S76.pdf\" target=\"_blank\" rel=\"noopener\">Senate Bill S76</a>','DID YOU KNOW? A bill being considered by the NY State Legislature which would create a presumption of permanent total disability for claimants who are found eligible for social security?','','publish','closed','closed','','did-you-know-a-bill-being-considered-by-the-ny-state-legislature-which-would-create-a-presumption-of-permanent-total-disability-for-claimants-who-are-found-eligible-for-social-security','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/04/did-you-know-a-bill-being-considered-by-the-ny-state-legislature-which-would-create-a-presumption-of-permanent-total-disability-for-claimants-who-are-found-eligible-for-social-security/',0,'post','',0),(46550,2461,'2021-08-18 02:07:50','2021-08-18 06:07:50','','Senate-Bill-S76','','inherit','closed','closed','','senate-bill-s76','','','2021-08-18 02:07:50','2021-08-18 06:07:50','',46549,'/wp-content/uploads/sites/1503150/2013/04/Senate-Bill-S76.pdf',0,'attachment','application/pdf',0),(46551,25,'2013-04-06 00:00:00','2013-04-06 04:00:00','As a former attorney for Special Funds’ Conservation Committee, I noted with great interest that on March 29, 2013, NY’s Workers’ Compensation Law Section 25-a was amended to close the Fund for Reopened Cases to new claims where applications are filed after 1/1/14:\r\n(1-A). NO APPLICATION BY A SELF-INSURED EMPLOYER OR AN INSURANCE CARRIER FOR TRANSFER OF LIABILITY OF A CLAIM TO THE FUND FOR REOPENED CASES SHALL BE ACCEPTED BY THE BOARD ON OR AFTER THE FIRST DAY OF JANUARY, TWO THOUSAND FOURTEEN EXCEPT THAT THE BOARD MAY MAKE A FINDING AFTER SUCH DATE PURSUANT TO SECTION TWENTY-THREE OF THIS ARTICLE UPON A TIMELY APPLICATION FOR REVIEW.\r\nWhat does this mean? Based on this language, self-insured employers and carriers need to get their applications in for 25-a relief in BEFORE 1/1/14.\r\n\r\nIf you are a self-insured employer or carrier, you are going to need to be very aggressive in identifying these claims during the next 9 months to ferret out all claims which might qualify for such relief before the 1/1/14 deadline.\r\n\r\nYou should immediately start running reports to identify the following claims:\r\n\r\n<strong>7 Years from the Date of Accident or Injury Have Elapsed.</strong> The threshold is a there must be a claim that is reopened more than 7 years after the date of accident or injury.\r\n\r\n<strong>3 Years from the Last Payment of Compensation.</strong> A claim that is reopened more than 3 years after the last payment of compensation – which refers specifically to lost wage benefits, not to medical.\r\n\r\n<strong>There must be a claim for benefits after the requisite time period has lapsed.</strong> There mere lapse of time is not sufficient. There must be a claim for benefits after the requisite time has elapsed either for medical treatment or lost wages.\r\n<strong>Applications can be retroactive.</strong> If you have a claim that meets these criteria, you can request 25-a relief, even if the qualifying claim for benefits was made in the past – i.e. you received a bill for medical treatment a year ago which when received, met the time thresholds described above you can request that liability be shifted as long as the claim can be still be considered “reopened”, i.e., there has not been a reopening and a closure and then the request for a transfer is made.\r\nTherefore, reports to identify claims which could qualify for 25-a relief should look for claims where: 1.) the date of accident or injury is more than 7 years ago; 2.) where there has been no indemnity payment in 3 years; and, 3.) where there is a claim (for lost time of medical) more than 7 years after the date of accident/injury or more than 3 years after the last payment of compensation.\r\n\r\nOnce you identify these claims, you need to investigate the following additional requirements:\r\n\r\n<strong>There must have been a prior “true closure” of the claim.</strong>\r\n\r\nThis is a legal argument – the standard is generally whether further proceedings were contemplated. Unaddressed issues such as temporary rates, an unresolved site of injury, evidence of permanency that was not addressed, or an unresolved medical bill among other things can prevent a finding that the claim was “truly closed”.\r\n\r\n<strong>GET THESE CASES REOPENED, ADDRESS THE ISSUES THAT HAVE NOT BEEN ADDRESSED, GET THE CLAIM CLOSED AGAIN AND THEN REQUEST 25-A.</strong>\r\n\r\nThese are claims that could qualify for 25-a if the impediment to 25-a relief, i.e, the claim’s not having been “closed” is addressed and then there is a subsequent reopening.\r\n\r\n<strong>There cannot have been a “reopening” w/in 7 years after the date of accident or injury or w/in 3 years after the last payment of compensation.</strong>\r\n\r\nThis is another legal argument – there can be no submissions within 7 or 3 which should have led to a “reopening” such as a surgical request or medical evidence of lost time among other things.\r\n\r\n<strong>AGAIN, GET THESE CASES REOPENED, ADDRESS THE ISSUES WHICH CONSTITUTE A REOPENING, GET THE CLAIM CLOSED AGAIN AND THEN REQUEST 25-A.</strong>\r\n\r\nAgain, these are claims that could qualify for 25-a if the impediment to 25-a relief, i.e, the “reopening” issue is addressed, and then there is a closure and subsequent reopening.\r\n\r\n<strong>WE WOULD BE GLAD TO HELP YOU WITH THESE CLAIMS.</strong>\r\n\r\nI was Assistant Attorney for Special Funds for 7 years from May of 2000 to July of 2007. I worked for Steven M. Licht, Esq., Attorney for Special Funds Conservation Committee, and performed the following duties:\r\n<ul>\r\n 	<li>Researched legal issues to assist Attorney/CEO in determining policy involving liability of the funds and myriad other legal issues;</li>\r\n 	<li>Made recommendations about whether appeals were taken to the Appellate Division and Court of Appeals for all workers’ compensation claims and third-party actions involving Special Funds;</li>\r\n 	<li>Extensive appellate experience, drafting, filing, responding to, perfecting and administering Appellate Division and Court of Appeals filings for all claims involving Special Funds;</li>\r\n 	<li>Orally argued Special Funds’ position before the Court of Appeals, Appellate Division, numerous Supreme and District Courts, and the Workers’ Compensation Board;</li>\r\n 	<li>Drafted and filed administrative appeals and memoranda of law for all four SFCC district offices: Albany, Buffalo, Dewitt and New York; and,</li>\r\n 	<li>Instructed, advised and trained SFCC staff statewide on the applicable law and SFCC’s internal procedures through seminars and authoring of Claims Manual and Hearing Representative Manual.</li>\r\n</ul>\r\nAs you can surmise, as a result of this experience, I have considerable knowledge regarding the requirements for shifting liability to the Fund for Reopened Cases and I believe I am uniquely qualified to assist you with these applications.\r\n\r\nAdditionally, we added an attorney to our staff who has considerable experience with WCL §25-a liability as a result of his work for Special Funds Conservation Committee during the last several years to further assist our clients who will be aggressively seeking this relief during the remainder of the year.\r\n\r\nIf we can be of assistance, either by screening claims for eligibility, filing RFA-2s to ensure that your applications are timely, or in identifying potential impediments to the successful shift of liability to the Fund for Reopened Cases, we would be glad to help. Our contact information is:\r\n\r\nThe Law Offices of Melissa A. Day, PLLC\r\n2390 North Forest Rd, Suite 10\r\nAmherst, New York 14068\r\nPhone [nap_phone id=\"LOCAL-REGULAR-NUMBER-1\"]\r\nFax: [nap_phone id=\"FAX-REGULAR-NUMBER-2\"]\r\nmday@getmad.today\r\n\r\nRegardless, take full advantage of the time we have left to shift liability on as many of these claims as possible. Good luck!','DID YOU KNOW? 25-A IS GOING AWAY.','','publish','closed','closed','','did-you-know-25-a-is-going-away','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/04/did-you-know-25-a-is-going-away/',0,'post','',0),(46553,25,'2013-03-13 00:00:00','2013-03-13 04:00:00','A chiropractic variance request based on alleged functional improvements and expected continued improvements may not be granted if the chiropractor continues to find that the claimant is totally disabled despite the alleged improvements.\r\n\r\nIn Hudson Valley DDSO, 2013 NY Wrk. Comp. LEXIS 2315, decided on 3/5/13, a three-member panel of commissioners found that a chiropractic variance request should not be approved despite the chiropractor’s submission which alleged that the claimant’s range of motion, endurance, numbness and tingling had all improved by 30%, and the claimant had an improved quality of life, needed less medication and was getting better sleep. The variance was denied in part because the chiropractor continued to certify to a total disability.\r\n\r\nThe carrier, the State Insurance Fund, successfully argued that the chiropractor’s report was internally inconsistent given that he asserted that the claimant had various degrees of improvement in her functional abilities as a result of the treatment, and yet remained 100% disabled. As a result, the board panel found the chiropractor failed to meet the burden of proof under the Medical Treatment Guidelines and denied the requested treatment.\r\n\r\nA link to copy of the decision can be found below.\r\n\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2013/03/Hudson-Valley-DDSO.pdf\" target=\"_blank\" rel=\"noopener\">Hudson Valley DDSO</a>','DID YOU KNOW? A chiropractic variance request based on alleged functional improvements and expected continued improvements may not be granted if the chiropractor continues to find that the claimant is totally disabled.','','publish','closed','closed','','did-you-know-a-chiropractic-variance-request-based-on-alleged-functional-improvements-and-expected-continued-improvements-may-not-be-granted-if-the-chiropractor-continues-to-find-that-the-claimant-is','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'',0,'post','',0),(46554,2461,'2021-08-18 02:08:10','2021-08-18 06:08:10','','Hudson-Valley-DDSO','','inherit','closed','closed','','hudson-valley-ddso','','','2021-08-18 02:08:10','2021-08-18 06:08:10','',46553,'/wp-content/uploads/sites/1503150/2013/03/Hudson-Valley-DDSO.pdf',0,'attachment','application/pdf',0),(46555,25,'2013-02-23 00:00:00','2013-02-23 05:00:00','I recently encountered what I found to be a fascinating fact pattern while defending a local town on what was otherwise a standard claim involving competing opinions on permanency from an attending physician and an IME.\r\n\r\nOn June 14, 2011, the DEA and local Western New York law enforcement personnel,200 in all, sought to arrest 17 members of the violent “The Camp street Boys”gang. For more on this story see, WKBW News, “Drug Raids In Buffalo”, <a href=\"https://thelomad.com/getmad.today/wp-contentwww.wkbw.com/news/crime/Drug-Raids-In-Buffalo-123833394.html\" target=\"_blank\" rel=\"noopener\">https://thelomad.com/getmad.today/wp-contentwww.wkbw.com/news/crime/Drug-Raids-In-Buffalo-123833394.html</a>. Also see, https://thelomad.com/getmad.today/wp-contentwww.justice.gov/dea/divisions/nyc/2011/nyc061611a.shtml.\r\n\r\nThe Claimant, a town narcotics officer and one of the 200 who helped make these arrests, sustained an injury to his left arm while on “loan” to the Drug Enforcement Agency. The officer, whose weapon was drawn in his right hand, fell onto his outstretched left arm,\r\n\r\nIt appears that although the town paid the officer’s wages, the DEA reimbursed the town for the officer’s wages from the day of the raid/accident. Presumably, given that this was the DEA’soperation, it directed and controlled the manner in which the officer performed his duties on the day of the injury.\r\n\r\nThere were certainly sufficient indicia of a general/special employment arrangement that if the coordinated effort had been spearheaded by another municipal entity, such as the City of Buffalo, the issue could have been raised at the Workers’Compensation Board. In this hypothetical scenario, the town could have argued that its liability should be shared with the City of Buffalo.\r\n\r\nHowever, the special employer in his situation was the Federal Government – the DEA. The following questions arose:\r\n\r\n1.) Could the town apportion part of its liability to the DEA on a theory of general/special employment?\r\n\r\n2.) Could the Claimant make a claim against the DEA under the Federal Employment Compensation Act, FECA?\r\n\r\n3.) If a claim could be made under FECA could the town bring it on the Claimant’sbehalf? and,\r\n\r\n4.) Could it benefit the town to bring such an action on the Claimant’s behalf?\r\n\r\nAnswers:\r\n\r\n1.) The town would not be successful in requiring the United States to submit to the jurisdiction of the New York Workers’ Compensation Board and thus would face significant challenges in apportioning any liability to the special employment.\r\n\r\nAccording to the Federal Employees’Compensation Act, 5 USC §8116(c), the liability of the United States with respect to an injury of an “employee” is limited to the benefits available under that act:\r\n\r\n§8116(c). The liability of the United States…under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States…to the employee…and any other person otherwise entitled to recover damages from the United States…because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen’s compensationstatute…\r\n\r\nThe town could argue that liability should be apportioned to the special employer even though the DEA would not be subject to the NY WCB’s jurisdiction, but in my opinion, the Board would be unlikely to apportion any liability to the special employment unless it was assured that the Claimant would be entitled to recover against the special employer, the DEA, in another venue.\r\n\r\n2.) The Claimant appears to have a viable claim against the United States as an“employee” pursuant to a provision of FECA that allows for such claims by law enforcement officers who are not employees of the United States:\r\n<strong>5USC 8191. Determination of eligibility</strong>\r\nThe benefits of this subchapter are available as provided in this subchapter to eligible law enforcement officers (referred to in this subchapter as “eligible officers”) and their survivors. For the purposes of this subchapter, an eligible officer is any person who is determined by the Secretary of Labor in his discretion to have been on any given occasion–\r\n(1) a law enforcement officer and to have been engaged on that occasion in the apprehension or attempted apprehension of any person–\r\n(A) for the commission of a crime against the United States…\r\nThe Claimant herein certainly appears to fit this description and thus likely has a claim under FECA.\r\n\r\n3.) As noted by the 9th Circuit Court in City of Whittier v. U.S. Dept.of Justice, 598 F.2d 561 (9 Cir. 1979):\r\n\r\nIn 1968 Congress adopted 5 U.S.C. §8191,which extended the benefits of the Federal Employees Compensation Act to state and local law enforcement officers who are injured while engaged in the apprehension of persons committing federal crimes. The purpose for enacting section 8191 was to provide such injured local law enforcement officers with the same benefits as are available to federal employees under the Federal Employees Compensation Act…A companion section, 5U.S.C. § 8192, provides that the benefits received should be reduced by the amount of benefits paid by state or local governmental sources, including workmen’s compensation benefits. 5 U.S.C. § 8192(a).\r\n\r\nIn the City of Whittier, the 9th Circuit found that the City could not bring a Federal Tort Claims Act against the United States because FECA is the exclusive remedy, and therefore “any possible claims of the City must be brought under that Act.” Hence, the Court envisioned that the employer could bring a claim against the United States under FECA.\r\n\r\n4.) However,because 5 U.S.C. § 8192 only provides for benefits under FECA in excess of those that an employee receives pursuant to New York State Law, there would need to be a finding by the NY WC Board that liability should be apportioned to the DEA as a special employer. Hence, it seems probable that recovery under FECA would be deferred until a determination was made by the NY WCB re: apportionment to a special employer. And, as is noted above, in my opinion, the Board would be unlikely to make such a finding unless it was assured that the Claimant had another avenue of relief. Hence the general employer, the town,would be in a Catch-22 in its efforts to apportion liability to a special employer under these facts.\r\n\r\nOther thoughts – Such an action might make sense for the Claimant if he could recover greater benefits under FECA then he has under NY Compensation Law. FECA has a Compensation Schedule similar to NY’s schedule loss of use provisions. For example, under FECA, compensation for loss of an arm entitles a claimant to 312 weeks of benefits, identical to NY’s schedule for an arm. It does not appear that there is a maximum on the weekly benefit under FECA like there is in NY. However, based on my research, loss of use findings under FECA, which are determined using the 6 Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment are much more modest that schedule loss of use findings in NY and thus it would be highly unlikely that he Claimant would be entitled to a greater benefit under FECA then he would be in NY, unless he was a very high wage earner.','DID YOU KNOW? The Federal Government Is Not Subject to the Jurisdiction of the NY Workers’ Compensation Board on a Theory of General/Special Employment?','','publish','closed','closed','','did-you-know-the-federal-government-is-not-subject-to-the-jurisdiction-of-the-ny-workers-compensation-board-on-a-theory-of-general-special-employment','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/02/did-you-know-the-federal-government-is-not-subject-to-the-jurisdiction-of-the-ny-workers-compensation-board-on-a-theory-of-general-special-employment/',0,'post','',0),(46557,25,'2013-02-05 00:00:00','2013-02-05 05:00:00','Governor Cuomo’s 2013 – 2014 Budget Proposal, includes legislation which, in addition to proposing simplification of employer assessments, closing the Fund for Reopened Cases, issuing bonds to cover the deficits of failed self-insured trusts and raising the minimum weekly benefits from $100.00 to $150.00, also includes the elimination of mandatory deposits into the Aggregate Trust Fund (ATF) and immediate closure of the ATF to new deposits. The Governor’s proposed legislation eliminating deposits would be effective immediately. (The legislation closing the Fund for Reopened Cases would close the Fund for new cases as of 1/1/14.)\r\n\r\nDeposits into the ATF which have been directed prior to the effective date of the legislation would still be required. That would appear to include directions to make the deposit even though a specific amount has not been determined as of the effective date. A link to the proposed legislation can be found below.\r\n\r\n<a href=\"https://thelomad.com/getmad.today/wp-contentpublications.budget.ny.gov/eBudget1314/fy1314artVIIbills/PPGGArticleVII.pdfhttps://thelomad.com/getmad.today/wp-content\" target=\"_blank\" rel=\"noopener\">Public Protection and General Government Bill</a>','DID YOU KNOW? GOVERNOR CUOMO’S BUDGET PROPOSES TO ELIMINATE MANDATORY DEPOSITS INTO THE ATF AND TO CLOSE THE FUND TO NEW DEPOSITS?','','publish','closed','closed','','did-you-know-governor-cuomos-budget-proposes-to-eliminate-mandatory-deposits-into-the-atf-and-to-close-the-fund-to-new-deposits','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/02/did-you-know-governor-cuomos-budget-proposes-to-eliminate-mandatory-deposits-into-the-atf-and-to-close-the-fund-to-new-deposits/',0,'post','',0),(46559,25,'2013-01-22 00:00:00','2013-01-22 05:00:00','<a href=\"https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2013/01/SummaryRegChanges.pdf\" target=\"_blank\" rel=\"noopener\">Summary Regarding Changes (PDF)</a>\r\n\r\nHighlights of the changes to the MTG include the addition of CTS Guidlines, the addition of provisions related to “Maintenance Care,” and the elimination of anterior acromioplasty and chondroplasty from the list of procedures requiring prior authorization.','DID YOU KNOW? IMPLEMENTATION OF THE CHANGES TO THE MTG HAS BEEN DELAYED UNTIL MARCH 1, 2013.','','publish','closed','closed','','did-you-know-implementation-of-the-changes-to-the-mtg-has-been-delayed-until-march-1-2013','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/01/did-you-know-implementation-of-the-changes-to-the-mtg-has-been-delayed-until-march-1-2013/',0,'post','',0),(46560,2461,'2021-08-18 02:08:38','2021-08-18 06:08:38','','SummaryRegChanges','','inherit','closed','closed','','summaryregchanges','','','2021-08-18 02:08:38','2021-08-18 06:08:38','',46559,'/wp-content/uploads/sites/1503150/2013/01/SummaryRegChanges.pdf',0,'attachment','application/pdf',0),(46561,25,'2013-01-22 00:00:00','2013-01-22 05:00:00','A good friend recently shared a Board Panel decision with me where the Board found that unlike the situation where the carrier has surveillance materials, the existence of which must be disclosed before a Claimant testifies, a carrier does not need to disclose information gathered from someone’s Facebook page before the Claimant testifies. Although the decision is not in Lexis’ database yet, it can be found on this website on the Client Resources page.','DID YOU KNOW? FACEBOOK PAGES ARE NOT CONSIDERED “SURVEILLANCE” THAT HAS TO BE DISCLOSED BEFORE A CLAIMANT TESTIFIES.','','publish','closed','closed','','did-you-know-facebook-pages-are-not-considered-surveillance-that-has-to-be-disclosed-before-a-claimant-testifies','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/01/did-you-know-facebook-pages-are-not-considered-surveillance-that-has-to-be-disclosed-before-a-claimant-testifies/',0,'post','',0),(46563,25,'2013-01-14 00:00:00','2013-01-14 05:00:00','WCL §15(3)(v) which permits claimants with SLUs greater than 50% for possible additional payments of compensation following exhaustion of the schedule, should be subject to the new PPD caps found in WCL §15(3)(w) because the statute indicates, among other requirements, that the additional benefits “shall be determined in accordance with paragraph w of this subdivision.”','DID YOU KNOW? WCL §15(3)(v) BENEFITS MAY NOW BE CAPPED UNDER WCL §15(3)(w)','','publish','closed','closed','','did-you-know-wcl-%c2%a7153v-benefits-may-now-be-capped-under-wcl-%c2%a7153w','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/01/did-you-know-wcl-%c2%a7153v-benefits-may-now-be-capped-under-wcl-%c2%a7153w/',0,'post','',0),(46564,25,'2013-01-10 00:00:00','2013-01-10 05:00:00','I have a claim where the judge directed submission of briefs on the outstanding issues on a very complicated case including compensability and fraud, which came and went four weeks ago without a submission from Claimant’s counsel. The original date was earlier, but neither the claimant’s attorney nor I were able to meet that deadline because one of the transcripts was not ready, so I prepared a joint request for an extension of time which was granted by Notice of Decision.\r\n\r\nI dutifully submitted my brief on behalf of the employer, but have yet to see one from Claimant. I have since asked for preclusion, but it doesn’t seem likely that that remedy will be granted.\r\n\r\nI understand that people are very busy, but it seems to me that a unilateral request for an extension of time could have and should have been requested by Claimant’s counsel. Yet that was not done, and I don’t think that will ultimately affect whether the law judge accepts and considers Claimant’s position paper if and when one is submitted. This laxity likely leads Claimants’ attorneys to treat deadlines as suggestions rather than as absolutes.\r\n\r\nI am also annoyed because Claimant has had my Brief for four weeks and has the advantage of being able to respond to my position instead of having to advance his position independently. I intend upon asking for an opportunity to reply if and when a brief is submitted.\r\n\r\nI could file an RFA and request for a hearing, and if I really wanted to be aggressive, a request for a hearing on the issue of 114-a could be submitted, on the basis that the conduct is dilatory, but that would likely just lead to another “deadline” for submission being set and runs the risk of annoying the judge.\r\n\r\nThe failure to adhere to a deadline without requesting an extension should come with some real threat of repercussion, such as reduction of the fee if one is granted, or a penalty to be paid by Claimant’s counsel. There are avenues available to request these very remedies, but in the 15 years I have been practicing I have not seen these provisions enforced. If they were this might help change the character of a”deadline” from a mere hope to something meaningful.','WHY? Why do judge’s even set deadlines for the submission of Memoranda of Law?','','publish','closed','closed','','why-why-do-judges-even-set-deadlines-for-the-submission-of-memoranda-of-law','','','2022-08-31 09:18:11','2022-08-31 13:18:11','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/2013/01/why-why-do-judges-even-set-deadlines-for-the-submission-of-memoranda-of-law/',0,'post','',0),(46565,25,'2013-01-05 00:00:00','2013-01-05 05:00:00','CLAIMANTS WHO HAVE A 0% LWEC, LOSS OF WAGE EARNING CAPACITY, ARE ENTITLED TO 225 WEEKS OF CAPPED PPD BENEFITS.\r\n\r\nIn more than one Board Panel Decision, including Wegmans, 2012 NY Wrk. Comp. 32313, G003 2313 and Great Meadow Correctional, 2012 NY Wrk. Comp. 114439, G011 4439, the Board has found that a Claimant who has returned to work earning in excess of their established weekly wage has a 0% loss of wage earning capacity but is still entitled to 225 weeks of capped PPD benefits in the event that they are wages fall below their former AWW.\r\n\r\nI recently argued that this principle should apply to a non-working Claimant. I posited that the Claimant, who has an impairment which limits her to light or sedentary work, should be found to have a 0% loss of wage earning capacity. A vocational rehabilitation expert opined that the claimant was capable of returning to work earning in excess of her former average weekly wage despite her impairment because of her vocational history and educational achievements. 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custom_padding=\"55px||55px||true|false\"][et_pb_row admin_label=\"Internal Page Content\" _builder_version=\"4.3.2\" width=\"90%\" hover_enabled=\"0\"][et_pb_column type=\"4_4\" _builder_version=\"4.3.2\" custom_padding_last_edited=\"off|desktop\"][et_pb_post_content quote_border_color=\"#2e5591\" module_class=\"fl-darklinks fl-inner-left\" _builder_version=\"4.3.2\" text_text_color=\"#000000\" text_font_size=\"18px\" link_text_color=\"#211865\" header_text_color=\"#211865\" header_2_text_color=\"#211865\" header_3_text_color=\"#211865\" header_4_text_color=\"#211865\" header_5_text_color=\"#211865\" header_6_text_color=\"#211865\" background_enable_color=\"off\" link_text_color__hover_enabled=\"on|hover\" link_text_color__hover=\"#000000\"][/et_pb_post_content][/et_pb_column][/et_pb_row][/et_pb_section]','Single Column Layout','','publish','open','closed','','theme-builder-layout-11','','','2022-09-09 10:23:07','2022-09-09 14:23:07','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/et_body_layout/theme-builder-layout-11/',0,'et_body_layout','',0),(47138,1251,'2021-09-13 05:40:40','2021-09-13 09:40:40','[et_pb_section fb_built=\"1\" custom_padding_last_edited=\"on|phone\" disabled_on=\"off|off|off\" admin_label=\"INTERNAL PAGE BANNER\" module_class=\"fl-internal_banner\" _builder_version=\"4.18.0\" background_color=\"#000000\" use_background_color_gradient=\"on\" background_color_gradient_stops=\"rgba(46,85,145,0.8) 0%|#211865 100%\" background_color_gradient_overlays_image=\"on\" background_color_gradient_start=\"rgba(46,85,145,0.8)\" background_color_gradient_end=\"#211865\" background_image=\"https://thelomad.com/getmad.today/wp-content/uploads/2021/09/AdobeStock_236812913.jpg\" custom_margin=\"||||false|false\" custom_margin_tablet=\"||||false|false\" custom_margin_phone=\"0px||||false|false\" custom_margin_last_edited=\"on|phone\" custom_padding=\"250px||170px||false|false\" custom_padding_tablet=\"50px||50px||true|false\" custom_padding_phone=\"25px||25px||true|false\" background_last_edited=\"on|phone\" background_image_tablet=\"https://thelomad.com/getmad.today/wp-content/uploads/2021/09/AdobeStock_236812913-T.jpg\" background_image_phone=\"https://thelomad.com/getmad.today/wp-content/uploads/2021/09/AdobeStock_236812913-M.jpg\" background_enable_image_tablet=\"on\" background_enable_image_phone=\"on\" global_module=\"47118\" saved_tabs=\"all\" locked=\"off\" collapsed=\"on\" global_colors_info=\"{}\"][et_pb_row admin_label=\"Internal Page Banner\" _builder_version=\"4.16\" width=\"90%\" width_last_edited=\"off|desktop\" module_alignment_last_edited=\"off|phone\" locked=\"off\" global_colors_info=\"{}\"][et_pb_column type=\"4_4\" _builder_version=\"4.16\" background_enable_color=\"off\" global_colors_info=\"{}\"][et_pb_text _builder_version=\"4.16\" text_font=\"Playfair Display|600|||||||\" text_text_color=\"#ffffff\" text_font_size=\"38px\" 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quote_border_color=\"#2e5591\" module_class=\"fl-darklinks fl-inner-left\" _builder_version=\"4.16\" text_font_size=\"18px\" link_text_color=\"#ffffff\" header_text_color=\"#211865\" header_2_text_color=\"#211865\" header_3_text_color=\"#211865\" header_4_text_color=\"#211865\" header_5_text_color=\"#211865\" header_6_text_color=\"#211865\" global_colors_info=\"{}\"][/et_pb_post_content][/et_pb_column][et_pb_column type=\"1_3\" _builder_version=\"4.18.0\" custom_padding=\"|0px||28px|false|false\" global_colors_info=\"{}\"][et_pb_search placeholder=\"Looking for a topic?\" placeholder_color=\"#FFFFFF\" admin_label=\"LOMAD Blog Search\" module_class=\"lm-ignore\" _builder_version=\"4.18.0\" _module_preset=\"default\" button_font=\"Playfair Display||||||||\" button_font_size=\"16px\" form_field_font=\"Playfair Display|500|||||||\" form_field_font_size=\"17px\" background_color=\"#211865\" background_layout=\"dark\" custom_margin=\"||21px||false|false\" custom_padding=\"1em||1em||false|false\" hover_enabled=\"0\" border_radii=\"on||||\" global_colors_info=\"{}\" custom_margin_last_edited=\"on|phone\" sticky_enabled=\"0\" custom_margin_phone=\"|22px|||false|false\" form_field_font_size_last_edited=\"on|phone\" form_field_font_size_phone=\"15px\" width=\"310px\" custom_margin_tablet=\"||21px||false|false\" form_field_font_size_tablet=\"17px\"][/et_pb_search][et_pb_accordion open_toggle_text_color=\"#211865\" open_toggle_background_color=\"#d8d8d8\" closed_toggle_text_color=\"#211865\" closed_toggle_background_color=\"#d8d8d8\" toggle_icon=\"&#x3b;||divi||400\" icon_color=\"#211865\" _builder_version=\"4.18.0\" _module_preset=\"default\" toggle_text_color=\"#211865\" toggle_font=\"|700|||||||\" toggle_font_size=\"17px\" closed_toggle_font=\"|700|||||||\" body_text_color=\"#211865\" background_color=\"#211865\" module_alignment=\"left\" hover_enabled=\"0\" border_color_all=\"#211865\" global_colors_info=\"{}\" sticky_enabled=\"0\" custom_margin=\"|0px|||false|false\" custom_padding=\"|12px|||false|false\" custom_margin_last_edited=\"on|phone\" custom_margin_phone=\"||||false|false\" width_last_edited=\"on|phone\" width_phone=\"310px\" custom_margin_tablet=\"|0px|||false|false\"][et_pb_accordion_item title=\" May 2021\" open=\"off\" open_toggle_background_color=\"#d8d8d8\" closed_toggle_background_color=\"#d8d8d8\" icon_color=\"#211865\" _builder_version=\"4.18.0\" _module_preset=\"default\" global_colors_info=\"{}\"]<ul>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/05/labor-market-attachment-and-retirement/\" data-wpel-link=\"internal\" role=\"link\">Labor Market Attachment and Retirement</a><br /></strong><em>May 24, 2021</em></h6>\n</li>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/05/claim-disallowance-with-unanimous-medical-opinion-giving-causal-relationship/\" data-wpel-link=\"internal\" role=\"link\">Claim Disallowance With Unanimous Medical Opinion Giving Causal Relationship</a><br /></strong><em>May 17, 2021</em></h6>\n</li>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/05/employers-do-not-have-to-prove-prejudice-by-late-notice-but-it-certainly-doesnt-hurt-to-do-so/\" data-wpel-link=\"internal\" role=\"link\">Employers Do Not Have to Prove Prejudice by Late Notice, but it Certainly Doesn’t Hurt To Do So!</a><br /></strong><em>May 10, 2021</em></h6>\n</li>\n<li>\n<h6 class=\"entry-title\"><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/05/the-claimants-burden-proving-the-causal-relationship-of-an-injury/\" data-wpel-link=\"internal\" role=\"link\">The Claimant’s Burden: Proving the Causal Relationship of an Injury</a><br /></strong><em>May 3, 2021</em></h6>\n</li>\n</ul>[/et_pb_accordion_item][et_pb_accordion_item title=\"April 2021\" _builder_version=\"4.18.0\" _module_preset=\"default\" hover_enabled=\"0\" global_colors_info=\"{}\" open=\"on\" sticky_enabled=\"0\"]<ul>\n<li>\n<h6 class=\"entry-title\"><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/04/social-media-and-fraud-youd-be-surprised-what-people-post/\" data-wpel-link=\"internal\" role=\"link\">Social Media and Fraud – You’d Be Surprised What People Post!</a><br /></strong><em>April 26, 2021</em></h6>\n</li>\n<li>\n<h6 class=\"entry-title\"><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/04/never-give-in-disallowance-win/\" data-wpel-link=\"internal\" role=\"link\">Never Give In! Disallowance Win!</a><br /></strong><em>April 19, 2021</em></h6>\n</li>\n<li>\n<h6 class=\"entry-title\"><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/04/an-interesting-ime-development/\" data-wpel-link=\"internal\" role=\"link\">An “Interesting” IME Development</a></strong><strong><br /></strong><em>April 12, 2021</em></h6>\n</li>\n<li>\n<h6 class=\"entry-title\"><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/04/section-44-not-even-a-portion-of-liability-for-the-occupational-disease/\" data-wpel-link=\"internal\" role=\"link\">Section 44: Not Even a Portion of Liability For The Occupational Disease</a><br /></strong><em>April 5, 2021</em></h6>\n</li>\n</ul>[/et_pb_accordion_item][et_pb_accordion_item title=\"March 2021\" _builder_version=\"4.18.0\" _module_preset=\"default\" global_colors_info=\"{}\" open=\"off\"]<ul>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/03/when-do-work-from-home-accidents-occur-in-the-scope-and-course-of-employment/\">When Do Work From Home Accidents Occur in the Scope and Course of Employment?</a><br /></strong><em>March 15, 2021</em></h6>\n</li>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/03/thoughts-on-thinking-a-strange-title-about-practicing-law/\">Thoughts on Thinking: A Strange Title About Practicing Law</a><br /></strong><em>March 8, 2021</em></h6>\n</li>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/03/genduso-and-total-joint-replacement-schedules/\">Genduso and Total Joint Replacement Schedules</a><br /></strong><em>March 1, 2021</em></h6>\n</li>\n</ul>[/et_pb_accordion_item][et_pb_accordion_item title=\"February 2021\" _builder_version=\"4.18.0\" _module_preset=\"default\" global_colors_info=\"{}\" open=\"off\"]<ul>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/02/occupational-disease-claims-after-matter-of-pinnacle-industries-ii-llc-2019-ny-wrk-comp-g2020587/\">Occupational Disease Claims after Matter of Pinnacle Industries II, LLC (2019 NY Wrk Comp G2020587)</a><br /></strong><em>February 22, 2021</em><strong><br /></strong></h6>\n</li>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/02/no-further-causally-related-disability-due-to-intervening-unrelated-accident/\">No Further Causally Related Disability Due to Intervening Unrelated Accident</a><br /></strong><em>February 15, 2021</em></h6>\n</li>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/02/independent-contractor-or-employee/\">Independent Contractor or Employee</a><br /></strong><em>February 8, 2021</em></h6>\n</li>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/02/no-error-of-law-or-fact-in-an-application-for-full-board-review/\">No Error of Law or Fact In An Application For Full Board Review</a><br /></strong><em>February 1, 2021</em></h6>\n</li>\n</ul>[/et_pb_accordion_item][et_pb_accordion_item title=\"January 2021\" _builder_version=\"4.18.0\" _module_preset=\"default\" global_colors_info=\"{}\" open=\"off\"]<ul>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/01/fraud-in-the-family-claimant-doing-other-work-while-receiving-comp-benefits/\">Fraud in the Family – Claimant Doing Other Work while Receiving Comp Benefits</a></strong><br /><em>January 25, 2021</em></h6>\n</li>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/01/how-change-in-conditions-for-classified-claimants-changed-drastically/\">How Change in Conditions for Classified Claimants Changed Drastically</a></strong><br />January 19, 2021</h6>\n</li>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/01/success-with-wcl-section-18/\">Success with WCL Section 18</a></strong><br /><em>January 11, 2021</em></h6>\n</li>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2021/01/doubling-down-2-hearing-loss-claims-for-the-same-claimant-denied-on-the-same-day/\">Doubling Down – 2 Hearing Loss Claims for the Same Claimant Denied on the Same Day</a></strong><br /><em>January 4, 2021</em></h6>\n</li>\n</ul>[/et_pb_accordion_item][et_pb_accordion_item title=\"2020\" _builder_version=\"4.18.0\" _module_preset=\"default\" global_colors_info=\"{}\" open=\"off\"]<ul>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2020/07/successful-disallowance/\"><strong>Successful Disallowance!</strong></a><br /><em>July 26, 2020</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2020/07/another-win-for-the-law-offices-of-melissa-a-day/\"><strong>Another Win for The Law Offices of Melissa A. Day!</strong></a><br /><em>July 22, 2020</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2020/07/a-win-for-the-law-offices-of-melissa-a-day/\"><strong>A Win for The Law Offices of Melissa A. Day</strong></a><br /><em>July 21, 2020</em></h6>\n</li>\n</ul>[/et_pb_accordion_item][et_pb_accordion_item title=\"2019\" _builder_version=\"4.18.0\" _module_preset=\"default\" global_colors_info=\"{}\" open=\"off\"]<ul>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2019/07/melissa-a-day-esq-invited-to-join-buffalo-business-first-leadership-trust/\"><strong>Melissa A. Day, Esq. invited to join Buffalo Business First Leadership Trust</strong></a><br /><em>July 30, 2019</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2019/05/claimants-conviction-of-unlawful-manufacture-of-methamphetamine-does-not-amount-to-a-violation-under-wcl-114-a/\"><strong>Claimant’s conviction of unlawful manufacture of methamphetamine does not amount to a violation under WCL 114-a.</strong></a><br /><em>May 31, 2019</em></h6>\n</li>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2019/05/amendments-to-2017-not-retroactive-if-ppd-claimant-was-not-attached-to-labor-market/\">Amendments to 2017 not retroactive if PPD claimant was not attached to labor market</a><br /></strong><em>May 31, 2019</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2019/05/lwec-incontinence/\"><strong>LWEC &amp; Incontinence</strong></a><br /><em>May 28, 2019</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2019/05/a-new-quest-begins/\"><strong>A New Quest Begins</strong><strong></strong></a><br /><em>May 21, 2019</em></h6>\n</li>\n</ul>[/et_pb_accordion_item][et_pb_accordion_item title=\"2018\" _builder_version=\"4.18.0\" _module_preset=\"default\" global_colors_info=\"{}\" open=\"off\"]<ul>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2018/12/appeals-inventory-and-forms/\"><strong>Appeals Inventory and Forms</strong></a><br /><em>December 17, 2018</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2018/12/review-of-workers-compensation-board-schedule-loss-of-use-frequently-asked-questions-and-new-permanency-forms/\"><strong>Review of Workers Compensation Board Schedule Loss of Use Frequently Asked Questions and New Permanency Forms</strong></a><br /><em>December 17, 2018</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2018/05/proposed-changes-submitted-seeking-to-expand-the-boards-legal-internship-program/\"><strong>Proposed Changes Submitted Seeking to Expand the Board’s Legal Internship Program</strong></a><br /><em>May 25, 2018</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2018/05/youre-claiming-what/\"><strong>You’re claiming what?!?</strong></a><br /><em>May 25, 2018</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2018/05/new-slu-guidelines-presentation-by-the-board/\"><strong>New SLU Guidelines Presentation by the Board</strong></a><br /><em>May 23, 2018</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2018/05/united-states-supreme-court-is-considering-a-petition-for-a-writ-of-certiorari-of-the-american-economy-decision/\"><strong>United States Supreme Court is Considering a Petition for a Writ of Certiorari Of the American Economy Decision</strong></a><br /><em>May 23, 2018</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2018/03/ricky-costner-jr-18-year-old-slain-by-a-deranged-co-worker-honored-by-family-and-friends/\"><strong>Ricky Costner Jr., 18 Year Old Slain by a Deranged Co-Worker, Honored by Family and Friends</strong></a><br /><em>March 31, 2018</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2018/03/schedule-loss-of-use-awards-grrrrrrrrr/\"><strong>Schedule Loss of Use Awards – Grrrrrrrrr</strong></a><br /><em>March 31, 2018</em><br /><em></em></h6>\n</li>\n</ul>[/et_pb_accordion_item][et_pb_accordion_item title=\"2017\" _builder_version=\"4.18.0\" _module_preset=\"default\" global_colors_info=\"{}\" open=\"off\"]<ul>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2017/10/court-of-appeals-upholds-2013-amendment-to-section-25-a-marking-the-end-for-the-fund-for-reopened-cases/\"><strong>Court of Appeals Upholds 2013 Amendment to Section 25-a – Marking the End for The Fund for Reopened Cases</strong></a><br /><em>October 26, 2017</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2017/10/how-to-avoid-bad-luck-in-your-comp-claims-this-friday-the-13th-some-basic-time-constraints-for-new-york-state-workers-compensation-claims-to-keep-in-mind/\"><strong>How to Avoid Bad Luck in Your Comp Claims This Friday the 13th – Some Basic Time Constraints for New York State Workers’ Compensation Claims to Keep in Mind</strong></a><br /><em>October 12, 2017</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2017/06/board-finds-that-medical-treatment-guidelines-apply-to-out-of-state-claimants/\"><strong>Board Finds that Medical Treatment Guidelines Apply to Out of State Claimants</strong></a><br /><em>June 7, 2017</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2017/02/permanent-partial-disability-safety-netwhat-to-expect-from-wcl-%c2%a735/\"><strong>Permanent Partial Disability “Safety Net”…What to Expect from WCL §35</strong></a><br /><em>February 5, 2017</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2017/01/back-to-the-future-the-return-of-wcl-252-b-fact-finding-without-judges-and-legal-reasoning-without-lawyers/\"><strong>Back to the Future: The Return of WCL 25(2-b): Fact-Finding without Judges and Legal Reasoning without Lawyers</strong></a><br /><em>January 18, 2017</em></h6>\n</li>\n</ul>[/et_pb_accordion_item][et_pb_accordion_item title=\"2016\" _builder_version=\"4.18.0\" _module_preset=\"default\" global_colors_info=\"{}\" open=\"off\"]<ul>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2016/12/its-the-holiday-season/\"><strong>It’s the Holiday Season!</strong></a><br /><em>December 8, 2016</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2016/10/happy-hallo-wean/\"><strong>HAPPY HALLO-WEAN!</strong></a><br /><em>October 31, 2016</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2016/10/to-wean-or-not-to-wean-that-is-the-question/\"><strong>TO WEAN, OR NOT TO WEAN, THAT IS THE QUESTION.</strong></a><br /><em>October 25, 2016</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2016/04/reopened-cases/\"><strong>Reopened Cases</strong></a><br /><em>April 15, 2016</em><em></em></h6>\n</li>\n</ul>[/et_pb_accordion_item][et_pb_accordion_item title=\"2015\" _builder_version=\"4.18.0\" _module_preset=\"default\" global_colors_info=\"{}\" open=\"off\"]<ul>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/11/ny-allows-employer-to/\"><strong>NY Allows Employer to…</strong></a><br /><em>November 28, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/11/an-employee-cannot-be/\"><strong>An Employee Cannot be…</strong></a><br /><em>November 23, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/10/vocational-and-functional/\"><strong>Vocational and Functional…</strong></a><br /><em>October 27, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/09/challenge-yourself/\"><strong>Challenge Yourself</strong></a><br /><em>September 19, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/09/labor-market-attachment-refresher/\"><strong>Labor Market Attachment Refresher</strong></a><br /><em>September 16, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/09/summer-is-almost-over/\"><strong>Summer is Almost Over!</strong></a><br /><em>September 7, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/08/claims-handling-performance/\"><strong>Claims Handling Performance</strong></a><br /><em>August 23, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/08/answers-to-the-quiz/\"><strong>Answers to the Quiz</strong></a><br /><em>August 10, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/08/average-wages/\"><strong>Average Wages?</strong></a><br /><em>August 7, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/08/non-acute-pain-treatment-guidelines/\"><strong>Non-Acute Pain Treatment Guidelines</strong></a><br /><em>August 5, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/08/test-your-ny-workers-compensation-chops/\"><strong>Test Your NY Workers’ Compensation Chops</strong></a><br />August 3, 2015</h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/07/liability-for-treatment-by-social-workers/\"><strong>Liability for Treatment by Social Workers</strong></a><br /><em>July 21, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/07/mds-jds-and-ttds/\"><strong>MDs, JDs AND TTDs</strong></a><br /><em>July 13, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/07/hot-dogs-or-hamburgers/\"><strong>HOT DOGS OR HAMBURGERS?</strong></a><br /><em>July 1, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/06/imes-the-next-summer-movie-blockbuster-or-just-another-ime-gone-bust/\"><strong>IMEs : The Next Summer Movie Blockbuster or Just Another IME Gone Bust?</strong></a><br /><em>June 29, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/06/wcbs-regulatory-agenda-may-include/\"><strong>WCB’s Regulatory Agenda May Include…</strong></a><br /><em>June 14, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/02/an-underwriting-nightmare-come-true/\"><strong>An Underwriting Nightmare Come True</strong></a><br /><em>February 5, 2015</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2015/02/hearing-loss-becomes-hearing-win/\"><strong>Hearing Loss becomes Hearing Win</strong></a><br /><em>February 5, 2015</em></h6>\n</li>\n</ul>[/et_pb_accordion_item][et_pb_accordion_item title=\"2014\" _builder_version=\"4.18.0\" _module_preset=\"default\" global_colors_info=\"{}\" open=\"off\"]<ul>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2014/11/non-acute-pain-medical-treatment-guidelines-offer-a-framework-for-controlling-costs-associated-with-chronic-pain-management-especially-opioid-use/\"><strong>Non Acute Pain Medical Treatment Guidelines Offer a Framework for Controlling Costs Associated with Chronic Pain Management, Especially Opioid Use</strong></a><br /><em>November 24, 2014</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2014/11/in-kigin-v-wcb-the-court-of-appeals-upholds-the-presumption-that-treatment-outside-the-mtgs-is-not-medically-necessary-and-the-attending-physician-has-the-burden-of-proof-of-the-need-for-a-variance/\"><strong>In Kigin v. WCB, the Court of Appeals upholds the presumption that treatment outside the MTGs is not medically necessary and the attending physician has the burden of proof of the need for a variance.</strong></a><br /><em>November 23, 2014</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2014/11/the-law-offices-of-melissa-a-day-pllc-won-a-finding-of-a-0-loss-of-wage-earning-capacity/\"><strong>The Law Offices of Melissa A. Day, PLLC Won a Finding of a 0% Loss of Wage Earning Capacity</strong></a><br /><em>November 22, 2014</em></h6>\n</li>\n<li>\n<h6><strong><a href=\"https://thelomad.com/getmad.today/blog/2014/09/navigating-the-low-back-medical-treatment-guidelines-for-chiropractic-care/\">Navigating the Low Back Medical Treatment Guidelines for Chiropractic Care</a><br /><em>Sseptember 12, 2014</em><br /></strong></h6>\n</li>\n</ul>[/et_pb_accordion_item][et_pb_accordion_item title=\"2013\" _builder_version=\"4.18.0\" _module_preset=\"default\" global_colors_info=\"{}\" open=\"off\"]<ul>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/12/did-you-know-the-board-has-retired-the-concept-of-the-compensable-retirement-the-death-knell-of-the-trifecta-zamora-and-the-so-called-compensable-retirement/\"><strong>DID YOU KNOW? THE BOARD HAS RETIRED THE CONCEPT OF THE COMPENSABLE RETIREMENT. The Death Knell of the Trifecta: Zamora and the so-called “Compensable Retirement”</strong></a><br /><em>December 17, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/11/a-blind-leap-across-an-inscrutable-chasm-arbitrary-and-capricious-loss-of-wage-earning-capacity-lwec-determinations/\"><strong>A Blind Leap across an Inscrutable Chasm – Arbitrary and Capricious Loss of Wage Earning Capacity (LWEC) Determinations</strong></a><br /><em>November 30, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/10/less-than-twelve-weeks-remaining-for-wcl-%c2%a725-a-because-subject-046-630-contains-stricter-requirements-for-reopening-a-claim-on-the-issue-of-%c2%a725-a-prudent-carriers-and-employers-may-want/\"><strong>LESS THAN TWELVE WEEKS REMAINING FOR WCL §25-a! Because Subject # 046-630 Contains Stricter Requirements for Reopening a Claim on the Issue of §25-a, Prudent Carriers and Employers May Want to Refer Applications to Defense Counsel</strong></a><br /><em>October 10, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/09/board-process-re-engineering-bpr-ny-workers-compensation-forum-members-should-be-included-in-the-dialogue/\"><strong>BOARD PROCESS RE-ENGINEERING (“BPR”) – NY WORKERS’ COMPENSATION FORUM MEMBERS SHOULD BE INCLUDED IN THE DIALOGUE</strong></a><br /><em>September 13, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/08/did-you-know-the-2nd-circuit-certified-a-question-to-the-ny-court-of-appeals-on-the-exclusivity-provision-of-the-wcl/\"><strong>DID YOU KNOW? The 2nd Circuit certified a question to the NY Court of Appeals on the exclusivity provision of the WCL?</strong></a><br /><em>August 14, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/08/did-you-know-twenty-insurance-carriers-have-filed-an-action-seeking-to-obtain-a-declaration-that-the-elimination-of-the-fund-for-reopened-cases-is-unconstitutional/\"><strong>DID YOU KNOW? Twenty Insurance Carriers Have Filed an Action Seeking to Obtain a Declaration that the Elimination of The Fund for Reopened Cases Is Unconstitutional.</strong></a><br /><em>August 3, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/07/did-you-know-the-third-department-holds-that-medical-treatment-which-is-not-specifically-included-in-the-mtg-is-presumptively-not-medically-necessary/\"><strong>DID YOU KNOW? THE THIRD DEPARTMENT HOLDS THAT MEDICAL TREATMENT WHICH IS NOT SPECIFICALLY INCLUDED IN THE MTG IS PRESUMPTIVELY NOT MEDICALLY NECESSARY.</strong></a><br /><em>July 30 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/07/did-you-know-an-employer-or-carrier-may-be-able-to-reopen-a-ppd-claim-on-the-issue-of-labor-market-attachment/\"><strong>DID YOU KNOW? AN EMPLOYER OR CARRIER MAY BE ABLE TO REOPEN A PPD CLAIM ON THE ISSUE OF LABOR MARKET ATTACHMENT.</strong></a><br /><em>July 13, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/04/did-you-know-a-bill-being-considered-by-the-ny-state-legislature-which-would-create-a-presumption-of-permanent-total-disability-for-claimants-who-are-found-eligible-for-social-security/\"><strong>DID YOU KNOW? A bill being considered by the NY State Legislature which would create a presumption of permanent total disability for claimants who are found eligible for social security?</strong></a><br /><em>April 30, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/04/did-you-know-25-a-is-going-away/\"><strong>DID YOU KNOW? 25-A IS GOING AWAY.</strong></a><br /><em>April 6, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/03/did-you-know-a-chiropractic-variance-request-based-on-alleged-functional-improvements-and-expected-continued-improvements-may-not-be-granted-if-the-chiropractor-continues-to-find-that-the-claimant-is/\">DID YOU KNOW? A chiropractic variance request based on alleged functional improvements and expected continued improvements may not be granted if the chiropractor continues to find that the claimant is totally disabled.</a><br /><em>March 13, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/02/did-you-know-the-federal-government-is-not-subject-to-the-jurisdiction-of-the-ny-workers-compensation-board-on-a-theory-of-general-special-employment/\"><strong>DID YOU KNOW? The Federal Government Is Not Subject to the Jurisdiction of the NY Workers’ Compensation Board on a Theory of General/Special Employment?</strong></a><br /><em>February 23, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/02/did-you-know-governor-cuomos-budget-proposes-to-eliminate-mandatory-deposits-into-the-atf-and-to-close-the-fund-to-new-deposits/\"><strong>DID YOU KNOW? GOVERNOR CUOMO’S BUDGET PROPOSES TO ELIMINATE MANDATORY DEPOSITS INTO THE ATF AND TO CLOSE THE FUND TO NEW DEPOSITS?</strong></a><br />February 5, 2013</h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/01/did-you-know-implementation-of-the-changes-to-the-mtg-has-been-delayed-until-march-1-2013/\"><strong>DID YOU KNOW? IMPLEMENTATION OF THE CHANGES TO THE MTG HAS BEEN DELAYED UNTIL MARCH 1, 2013.</strong></a><br /><em>January 22, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/01/did-you-know-facebook-pages-are-not-considered-surveillance-that-has-to-be-disclosed-before-a-claimant-testifies/\"><strong>DID YOU KNOW? FACEBOOK PAGES ARE NOT CONSIDERED “SURVEILLANCE” THAT HAS TO BE DISCLOSED BEFORE A CLAIMANT TESTIFIES.</strong></a><br /><em>January 22, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/01/did-you-know-wcl-%c2%a7153v-benefits-may-now-be-capped-under-wcl-%c2%a7153w/\"><strong>DID YOU KNOW? WCL §15(3)(v) BENEFITS MAY NOW BE CAPPED UNDER WCL §15(3)(w)</strong></a><br /><em>January 14, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/01/why-why-do-judges-even-set-deadlines-for-the-submission-of-memoranda-of-law/\"><strong>WHY? Why do judge’s even set deadlines for the submission of Memoranda of Law?</strong></a><br /><em>January 10, 2013</em></h6>\n</li>\n<li>\n<h6><a href=\"https://thelomad.com/getmad.today/blog/2013/01/did-you-know/\"><strong>DID YOU KNOW?</strong></a><br /><em>January 5, 2013</em></h6>\n</li>\n</ul>[/et_pb_accordion_item][/et_pb_accordion][/et_pb_column][/et_pb_row][/et_pb_section]','Blog','','publish','open','closed','','theme-builder-layout-12','','','2022-09-14 14:43:25','2022-09-14 18:43:25','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/et_body_layout/theme-builder-layout-12/',0,'et_body_layout','',0),(47151,1251,'2021-09-13 05:42:38','2021-09-13 09:42:38','[et_pb_sidebar area=\"sidebar-1\" admin_label=\"Sidebar\" module_id=\"fl-sidebar-blog\" module_class=\"fl-lightlinks\" _builder_version=\"4.18.0\" header_font=\"|600|||||||\" header_text_align=\"left\" header_text_color=\"#ffffff\" header_font_size=\"35px\" body_font_size=\"18px\" background_color=\"#211865\" custom_padding=\"40px|45px|40px|45px|true|true\" custom_padding_tablet=\"\" custom_padding_phone=\"\" custom_padding_last_edited=\"on|desktop\" hover_enabled=\"0\" header_font_size_tablet=\"30px\" header_font_size_phone=\"28px\" header_font_size_last_edited=\"on|phone\" border_width_all=\"3px\" border_color_all=\"#ffffff\" box_shadow_style=\"preset1\" box_shadow_vertical=\"0px\" box_shadow_blur=\"0px\" box_shadow_spread=\"3px\" box_shadow_color=\"#211865\" saved_tabs=\"all\" global_colors_info=\"{}\" template_type=\"module\"][/et_pb_sidebar]','Sidebar-Blog','','publish','closed','closed','','sidebar-blog','','','2022-08-30 09:11:43','2022-08-30 13:11:43','',0,'https://duplicate-3602675.findlaw5.flsitebuilder.com/blog/et_pb_layout/sidebar-blog/',0,'et_pb_layout','',0),