Recent Developments in Workers Compensation

PRACTICE TIP:           The liberal rules of evidence governing NYS workers’ compensation proceedings permit the admissibility of surveillance evidence even in the absence of the investigator who secured video evidence. Under WCL Section 118 neither the common law nor statutory rules of evidence nor the technical or formal rules of procedure are [...]

PRACTICE TIP:      Although burn injuries often affect extremities, do not assume a schedule loss of use if the criteria of Chapter 14 of the 2012 Permanent Impairment Guidelines apply.    In the recent case of Matter of Mayewski v. Superior Plus Energy Servs., 2021 WL 921819 (3rd Dept. 2021), the claimant [...]

From the Desk of Attorney David L. Niefer   PRACTICE TIP:  The service and filing requirements with regard to a report generated after a physical examination are not the same for a record review.  Knowing the difference will help prevent a record review from being precluded from evidence.      In 2000, [...]

In claims that involve both injuries to the spine and extremities, at the time of permanency, a claimant may obtain evidence of a classification and a schedule loss of use.  In the past, in order to collect a schedule loss of use, there had to be a finding of no permanency to [...]

PRACTICE TIP:  When negotiating a schedule loss of use award involving multiple extremities, first determine whether periods of temporary total disability can be assigned to individual extremities in order to avoid additional weeks of indemnity benefits due to protracted healing.     In the case of Department of Correction, WCB G127 [...]

Practice Tip: At present the New York State WCB is not requiring the submission of an explicit opinion from a qualified expert causally relating a worker’s development of COVID to an exposure on the job. Decision-making with regard to individual claims should anticipate Appellate Decision and/or Court of Appeals rulings in [...]

PRACTICE TIP:  Do not assume that a physician practicing at an Occupational Health Clinic Network (OHCN) is exempt from the requirements of Section 137 if the physician is evaluating the claimant for purposes of a permanency or other opinion outside of a continuing doctor/patient relationship.   New York State Workers’ Compensation Law [...]

From the Desk of Attorney Jason M. Carlton PRACTICE TIP:  After a finding of Prima Facie Medical Evidence (PFME) is made, careful cross-examination of an attending physician should be undertaken to probe the certainty with which a causal relationship opinion has been provided. In the New York workers’ compensation case of [...]

          Practice tip:  Beware of the L Code.  Consider the timeline you have to file your first FROI form and always err on using the W code or the without liability code to allow ample time to properly investigate the claim.            If you are unsure of the extent of liability [...]

PRACTICE TIP:  Upon receipt of an appeal from an adverse party, make sure that your counsel carefully scrutinizes the RB-89 (Application for Board Review) form looking for defects in completion of the form which might render the appeal non-reviewable on procedural grounds. In the case of Perry v. All American School [...]