We are pleased to announce the promotion of Brian K. Prince from Senior Associate Attorney to Partner.
Brian joined The Law Offices of Melissa A. Day, PLLC in 2017 and has demonstrated a commitment to our mission, vision and values and provides stellar service to the firm’s clients.
Brian attended the SUNY Buffalo Law School at the University at Buffalo, earning his Juris Doctor in 2012.
During his tenure here, Brian has proven to be a reliable resource for our team and for our clients and he has frequently been recognized for his outstanding litigation.
It is fitting to announce the addition of a new partner as the firm celebrates its
10-year anniversary, so please join us in congratulating Brian on his promotion!
]]>
Our firm recently handled a death claim resulting from a fall from a ladder. In this matter, our client was an auto dealership who had hired an individual to weatherize a large service door. Through our investigation it was revealed that the claimant did fall at the auto dealership and died three days later. In our discussions with the manager of the dealership, it was determined that he had hired a contractor, solely look at the service door and give an estimate. The contractor proceeded to bring with him two additional individuals, one of whom was the claimant.
At the time of the accident, the contractor was uninsured. The Uninsured Employer’s Fund was thus brought in, looking for anyone to pin responsibility on. We brought in the manager of the auto dealership to provide testimony on the accident, at which point he explained that he had hired a contractor, not the claimant, for an estimate only. He further explained that it was exclusively the contractor’s decision to bring the claimant along on the day of the accident. The employer witness also confirmed that the ladder the claimant fell from was brought to the auto dealership by the contractor. To further corroborate his testimony, we strategically took testimony from another manager of a different auto dealership who knew the contractor and who had provided the contractor’s name as a recommendation to our client.
Our client was understandably nervous, acknowledging the potential severity of the matter since it was a death case with a potential of lifetime payments to the surviving spouse. There was no denying that the accident had occurred on the premises of his dealership, and the claimant was indeed working when the incident occurred. This, in addition to not knowing what the surviving spouse would say in her testimony, had the our client feeling apprehensive.
The contractor did appear at one hearing, without an attorney, where he refused to participate in the hearing. In fact, he refused to answer any questions from the Judge whatsoever. Without any contribution from the negligent contractor, our firm was able to provide the complete picture for the Judge and show where the dots were and how to connect them. The surviving spouse then corroborated our theory of the case. The Judge then formally discharged and removed both our employer and carrier from Notice, and the Uninsured Employer’s Fund was determined to be the responsible carrier. Lifetime benefits were awarded to the surviving spouse, payable solely by the Uninsured Employer’s Fund.
]]>Rise comrades!
Increasingly, legislation is making its way through Albany to the governor’s desk before many carriers, self-insured employers and defense attorneys even know it was proposed. Most notoriously, Senate Bill S768 proposes to change the definition of total disability to “the inability of an employee to perform his or her pre-injury employment or any modified duty.” The means the issue would no longer be a medical determination and would shift the burden to employers to provide light duty work. It would create a significant burden for employers, one that would be unreasonable for small businesses. Further, it would render the partial disability finding and labor market attachment—current tools that provide incentives for claimants to find some type of work—totally meaningless in the New York Worker’s Compensation system. Now it should be noted that neighboring New Jersey has a similar definition, but the difference is that, in the Garden State, the employer controls treatment deciding with whom the worker treats. That and, if the provider decides the claimant has reached maximum medical improvement, the carrier may stop temporary disability payments immediately without a hearing and it would then be the worker’s burden to get a second opinion and file a motion for more treatment and disability benefits. So, while supporters of Senate Bill S768 may point across the Hudson, there are very significant tradeoffs that are not being proposed in New York.
In addition, there is also Senate Bill S6373, which would lower the bar to make it easier to prove a mental stress injury. Currently, it must be proven that work-related stress was greater than that of workers in similar situations. This will increase the number of mental stress injury cases in New York. All objective standards on what would be considered a situation to cause mental stress would be replaced by an entirely subjective standard. It would be hard to imagine that anyone and everyone could not successfully bring a claim. This could flood the system with new mental stress claims that would be difficult, if not impossible, to defend.
It is past time for all defense attorneys, carriers, and self-insured employers to get organized and stand up to these bills and other really bad ideas being proposed. In addition to state legislation, we should cooperate on other issues like trends from the Board, law judges acting as bullies, novel issues of law, and any other issue where we all share common interest. Worker’s Compensation Defense of New York unite! You have a state to gain and nothing to lose but your chains!
]]>Did you follow all the rules to use a diagnostic network [where the claimant and provider ignored the notice] and the Board nevertheless issued a Proposed Decision saying to pay your diagnostic fees at the network rate?
You have a diagnostic testing network in accordance with WCL 13-a (7). You did everything right. You provided your notice to the provider and claimants in accordance with Section 325-7.5 (d) (1). You even reminded the provider and the claimant in the variance to use your network. The claimant and the provider just ignored that and did what they wanted anyway. When you filed your C-8.1B you even furnished the DT-1 to the Board.
The regulation is clear it states at Section 325-7.5 (d) (4):
“(4) If the insurance carrier complies with the notice requirements of paragraph (1) of this subdivision, but the claimant utilizes the services of a facility or provider, including the treating medical provider, that is not an affiliated network provider for diagnostic examinations and tests, then the insurance carrier is not liable for the cost of the diagnostic examinations and tests”
This does not require a lawyer to interpret; when the carrier follows the procedure, yet the claimant and the provider ignore the rule, the carrier does not have to pay. “Easy-peasy,” right? Of course not.
You get a Proposed Decision stating that you need to pay for the diagnostic service at the “network rate,” citing with two 2012 Third Department Decisions. How? How does this even happen? Since when does caselaw trump the explicit and unambiguous language of a regulation?
The only explanation is that the person citing to that 2012 case obviously did not even read it. Both of those decisions from 2012 state that the legislature drafted WCLJ 13(7) to allow for the use of diagnostic testing networks but provided no instruction regarding notice requirements or the consequences of not using the diagnostic networks. In the beginning of 2012, that was true.
However, Section 325-7.5 was enacted in 2012, clearly in response to those Third Department decisions and to specifically answer the question of how to provide proper notice and what the consequences are of not using the diagnostic testing network.
Section 325-7.5 (d) (1) clearly outlines the requirements for providing notice. Section 325-7.5 (d) (4) clearly states that the consequence for the provider not using the diagnostic network when provided the notice in accordance with paragraph 1 is that the carrier does not have to pay. Not at the network rate. Not at any rate. Explicit language states no payment will be issued for the diagnostic examination and tests in those circumstances.
So, in legal terms, the two cited Third Department cases were abrogated by these changes made effective March 21, 2012.
See also:
When a claimant is working and collecting worker’s compensation indemnity benefits and does not disclose to anyone that they are working, they have likely committed fraud. In a recent case LOMAD was handling, a claimant testified under oath on two occasions that he was not working and awards were updated at a temporary rate based on claimant’s testimony they were not working. LOMAD raised fraud and, at the hearing, the claimant testified that he was performing light work for friends, family, and church members. The claimant had seen both a treating and an IME doctor between the first testimony and the fraud testimony and advised he was not working.
Further, the claimant was apparently displaying such an injured state that his treating doctors had advised the claimant to use a wheelchair to ambulate. However, once the videos were disseminated, it was clear that the claimant had violated WCL section 114-a. The video showed the claimant performing residential construction work and working his personal business. During summations, LOMAD aggressively argued that lying strikes at the very heart of the judicial system and argued that, without honesty, the system runs afoul. We argued the claimant lied to the court on multiple occasions, lied to every single doctor, lied to defense counsel and lied to their own attorneys. We argued for a mandatory retroactive penalty beginning on the date of the IME, at which point the claimant advised he was not working. (The claimant was clearly working, however, as we had surveillance of the claimant leaving the IME appointment and going to work!) We argued that, honesty strikes at the very heart of the judicial system and here, due to the serious and egregious nature of claimant’s lies, they should be forever barred from receiving additional wage replacement benefits.
The WCLJ found that the claimant’s lying was extensive, in that the claimant went to the IME and said they were not working but then immediately proceeded to work at the residential construction project. The WCLJ noted that the claimant lied to everyone and that warranted a mandatory and discretionary lifetime ban on indemnity benefits. This was a great win for our client, as this claimant was “caught red-handed,” and only once the claimant was confronted about their work activities did they finally admit to their work status.
]]>Who says that, other than a disallowance, a §32 is the only way to truly close a case?
It’s not often that the overlap of two obscure sections of the Workers’ Compensation Law results in a full and final closure on a claim, but that’s exactly what happened at a hearing last month. As you all know, there are a number of things that sets a hearing loss claim apart from other sorts of occupational diseases, the first being a date of disablement set by statute, 90 days following the claimant’s removal from exposure to injurious noise. (This usually occurs at the time of retirement, which in this case was in early 2014.) The other odd wrinkle about hearing loss claims are the significant hoops you’ll have to jump through if you want to try and apportion liability away. Barring a few very narrow exceptions, an employer will need to perform a pre-employment hearing test and alert a potential apportionment target of the results in writing within 90 days of that test. Otherwise, the last employer where the claimant was exposed to injurious noise gets stuck with the whole bill.
At a trial hearing last month, our hearing loss claim, with only an OC-400, C-3, and EC-1 in eCase, was placed on notice for consideration with a shiny new hearing loss claim from a subsequent employer that was on for claimant and employer testimony. There was one exception, however: they weren’t able to produce any kind of letter regarding potential apportionment, so we were discharged and removed from notice before a word of testimony was uttered. While the other carrier noted an exception, as they didn’t have access to our file, an appeal is unlikely.
Should that appeal not come, the second obscure law provision will kick in, §123. Now, everybody knows that after 18 years from the date of injury, and 8 years from the last payment of compensation, a claimant with a truly closed case can never receive further indemnity benefits. What is less known is that, after 7 years from the date of injury, assuming there’s been a hearing on a case but no adjudication on the merits, the Board is barred from reopening that claim. Period; no “ifs”, “ands”, or “buts.” As our claim would have a mid-2014 date of disablement set by statute, and the case was closed in 2022 without adjudication on its merits, that’s it; game over. The fun thing is, even should the subsequent carrier magically come forward with a timely apportionment letter (which was never sent to our client but let’s play pretend) our file would not bear even a penny of liability, as the claim cannot be reopened. And who says that, other than a disallowance, a §32 is the only way to truly close a case?
]]>What does that all mean? Even seasoned lawyers may need to dust off a text book to understand the distinction between an equitable and legal remedy (particularly since American common law does not follow the distinction often found in other common-law systems that more strictly delineate courts in equity and courts in law). Generally speaking, legal remedies typically involve monetary damages whereas equitable relief typically refers to injunctions, specific performance, or vacatur.
While laches may be invoked infrequently in a WC setting, a strict reading of the law suggests its application to WC is much more closely circumscribed than its use (or even WC ruling) would suggest.
]]>We did it! We were successful in obtaining a finding that the claimant should be weaned off their opioid narcotics. In some cases, the treating doctor even agreed that the claimant should not be on the opioid narcotic medications and should be weaned. Per usual, the carrier is directed to pay for the opioid narcotics during the weaning period. We may even have a Board Panel Decision affirming this decision.
However, it’s not the end of the story: the doctor just decides he is not going to comply, or the claimant engages in a series of jumping doctors to thwart weaning, or the claimant starts billing the opioid narcotics through private insurance or Medicare but continues to bill you for the monthly visits to obtain the medications. Add to that the PAR process which is onerous with quick turnarounds and level 3 reviews that are slipping past the MDO where the previously weaning direction is ignored. All this negates successful litigation efforts and expense.
So, what can we do? One thing we can do is object through C-8.1Bs to the treatment by the treating provider who is neither complying with the guidelines and the prior direction. The objection is for any treatment where the prescription opioid continues to be prescribed. You can object even if it is just an office visit, even if there is other treatment provided, even if the provider is billing the opioids to another insurance carrier or there is self-pay. If part of the office visit is prescribing the inappropriate medication, you need to object. The objection on the C-8.1B should be outside the MTGs (#13), requires for treatment was denied (#3-F.3.e.iv is a good option), other (#12 with a citation to the NOD/MBPD directing weaning that the doctor is not following), and it may also be unrelated (if it is going to another carrier- because then it’s unrelated or fraudulent).
Typically, there will then be a Proposed Decision finding this bill for the provider. We will then need to object and present our arguments and caselaw at the hearing. Typically, this has been successful. In one case, the WCLJ actually refused to find the claimant “not responsible” because they had switched doctors to avoid the weaning. Some of the WCLJs have mitigated and found the first set of C-8.1Bs for the provider with a notation in the NOD that the carrier is not responsible for any further office visits where the opioids are prescribed.
]]>This month, we’re thrilled to announce that Leaders Voice USA published an article that highlights Melissa’s interview and offers a breadth of authoritative and practical wisdom. This article can be found here within the Leaders Voice USA official website. Alternatively, you can also copy and paste this link into the address bar of your browser:
https://getmad.today/wp-contentleadersvoiceusa.com/melissa-day-managing-partner-the-law-offices-of-melissa-a-day-pllc/
After perusing the article, we’d love to hear from you! Whether you prefer social media, email or calling our office, your feedback is valued and appreciated.
Leaders Voice USA missions is to give due credit and highlight the work of key contributors in the healthcare, legal and insurance industries. Leaders Voice USA makes every effort to lend a voice to thought leaders of these industries and empowers them to share their journeys, insights, vision and principles for success. For more on Leaders Voice USA, visit https://getmad.today/wp-contentleadersvoiceusa.com/.
The video does require a password to view. You can request a password by sending an e-mail to Melissa Day at mday@getMAD.today
]]>