Recent Developments in Workers’ Compensation
From the Desk of Attorney David L. Niefer PRACTICE TIP: Although the prior authorization requirements set forth at WCL § 13-a(5) do not apply to durable medical equipment (DME), any relevant Medical Treatment Guideline (MTG) provisions still must be met and a request to vary from the MTGs filed by the [...]
From the Desk of Attorney David L. Niefer PRACTICE TIP: Early and complete investigation is critical in successfully defending occupational disease claims. In Urdiales v. Durite Concepts, Inc., 21 N.Y. WCLR 199 (11/18/21), the Appellate Division affirmed a decision of the Board disallowing an occupational disease claim for exposure to [...]
From the Desk of Attorney David L. Niefer PRACTICE TIP: Separate MMI findings leading to separate permanency decisions arising out of the same accident can trigger the application of Genduso resulting in a credit from the initial SLU award. As a general proposition, the case of Genduso v. New York [...]
Practice Tip: When seeking to have the claimant sign a Resignation Agreement or General Release, it must now be included in the Section 32 agreement. You need to consider whether its inclusion might jeopardize approval of the Section 32. When settling workers’ compensation claims by a Section 32 agreement, some employers [...]
A Cash Advance is Not a Litigation Expense: Remember to carefully scrutinize any closing statement arising out of a third-party action PRACTICE TIP: While the workers’ compensation insurance carrier is responsible for its equitable share of the cost of litigation giving rise to a third party settlement or judgment, careful scrutiny of [...]
PRACTICE TIP: If a work injury has resulted in a diagnosis of de Quervain’s disease, make sure that the attending and consulting physicians are properly determining whether permanency remains in the hand or thumb. Under Chapter 3 of the 2018 Workers' Compensation Guidelines for Determining Permanency, Injuries to the Hand are [...]
PRACTICE TIP: In defending a hearing loss claim, it first must be determined whether the claim is being asserted for a traumatic or an occupational loss in order to determine the necessary filing requirements. Under the New York Workers' Compensation Law, the filing requirements for a traumatic hearing loss arising out [...]
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, [...]
