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WHY SO BLUE? CLAIMANTS DON’T GET THE BENEFIT OF BOTH ROM DEFICITS AND SPECIAL CONSIDERATIONS
PRACTICE TIP: Carefully evaluate permanency opinions to make sure physicians are not adding Range of Motion and Special Consideration SLU's together. In the 2022 decision of Matter of Blue v New York State Office [...]
IT CAN’T BE WAIVED: CARRIER’S RIGHT TO THE RELIEF SET FORTH AT WCL SECTION 15(3)(W)
PRACTICE TIP: If the credit under WCL Section 15 (3) (w) is not addressed at the time a permanency determination is made, a prompt RFA-2 filing should be made seeking a determination as to [...]
The Return of Apportionment Before Permanency
PRACTICE TIP: Under compelling circumstances, an apportionment can be implemented with regard to medical and indemnity treatment prior to a finding of MMI/permanency. In the Full Board Panel Decision of Robert Macvie Inc., WCB [...]
BEYOND THE STATUTORY CAP: TEMPORARY DISABILITY CAUSED BY POST-CAP SURGERY
PRACTICE TIP: In order to limit additional indemnity awards, do not let a prior PPD ruling prevent ongoing claim administration. The New York State Appellate Division has affirmed a ruling of the WCB holding [...]
WHO TOOK ECONOMICS 101: THE WCB “REMEDY” TO FILLING PRESCRIPTIONS OUTSIDE OF AN APPROVED PHARMACY NETWORK
PRACTICE TIP: The WCB has now firmly established that an injured worker can freely obtain prescription medications outside of a carrier’s approved pharmacy network, therefore, C-8.1B objections will routinely be found in favor of the [...]
IT HAS BEEN DECIDED: PPD AWARDS UNDER THE STATUTORY CAPS DO NOT EXTEND BEYOND THE DATE OF DEATH
From the Desk of Attorney David L. Niefer PRACTICE TIP: If you are paying PPD non-schedule awards, those awards will terminate as of the date of death even if there are additional weeks owed [...]
A PRIOR CONTINUING PAYMENT DIRECTION IS NOT SET IN STONE
PRACTICE TIP: Upon receipt of medical evidence meriting an alteration in continuing indemnity awards, the WCLJ should consider the medical evidence for purposes of implementing awards since the prior hearing with a CCP direction. [...]
CHONDROMALACIA PATELLA & BLUE – WHAT DO WE DO NOW?
From the Desk of Attorney David L. Niefer PRACTICE TIP: Consider a finding of no MMI if there is the possibility of a high SLU followed by TKR surgery. In previous editions of [...]
Covid Claims: Another Look
From the Desk of Attorney David L. Niefer PRACTICE TIP: Even if claimant works for a healthcare facility, careful analysis of the facts of each claim will increase the prospect for a disallowance. [...]
WHEN PRODUCING SURVEILLANCE EVIDENCE, FOLLOW THIS SIMPLE RULE: DISCLOSE IT ALL
From the Desk of Attorney David L. Niefer PRACTICE TIP: While the rules of evidence governing the admissibility of surveillance evidence in a New York State workers’ compensation proceeding are liberal, the party producing [...]
DON’T FORGET 1996: THE CONTINUING RELEVANCE OF THE 1996 MEDICAL GUIDELINES
From the Desk of Attorney David L. Niefer PRACTICE TIP: When considering a claimant's temporary level of disability arising out of cervical and lumbar injuries, reference should be made to the criteria set forth [...]
IT IS A SHORT TRIP ACROSS A TUNNEL OR BRIDGE – WHEN THE NEW YORK STATE FEE SCHEDULE APPLIES TO OUT-OF-STATE PROVIDERS
From the Desk of Attorney David L. Niefer PRACTICE TIP: Even though an injured worker might reside out of state, the New York State fee schedule can apply to treatment provided out of state [...]
DON’T FORGET ABOUT MTG’S WHEN EVALUATING PAYMENT OF DME’S
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 [...]
IF THE CLAIMANT GETS IT WRONG, THE DOCTOR GETS IT WRONG: DEFENDING AN OD CLAIM
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), [...]
APPLYING GENDUSO WHEN A SINGLE CLAIM INVOLVES MULTIPLE JOINTS: THE MMI TRIGGER
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 [...]
All or Nothing: Dealing with the WCB’s New Section 32 Guidance
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 [...]
A Cash Advance is Not a Litigation Expense
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 [...]
Don’t pay for a hand when a thumb will do
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. [...]
Traumatic vs Occupational Hearing Loss: What is the difference?
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. [...]
YOU DO NOT NEED THE CINEMATOGRAPHER TO BENEFIT FROM THE CINEMATOGRAPHY
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 [...]
Summer Sunburns: Don’t Forget About Chapter 14 of the NYS Guidelines for Determining Permanent Impairment
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 [...]
AN INDEPENDENT MEDICAL EXAMINATION IS NOT A RECORD REVIEW: DO NOT LET YOUR RECORD REVIEW GET PRECLUDED
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 [...]
Pass Go and Collect $200 -Collecting SLU and Classification under Arias
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 [...]
AN ARM AND A LEG: CALCULATING PROTRACTED HEALING WHEN A SINGLE CLAIM INVOLVES MULTIPLE EXTREMITIES
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 [...]
Establishing Work-Related Covid Claims: Back to the Future Part 2.1
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 [...]
IF IT LOOKS LIKE AN IME, ACTS LIKE AN IME . . . IT IS AN IME
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 [...]
Words have meaning, except when they don’t…
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 [...]
The “L” Code Pigeonhole
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 [...]
WHEN THE NYS WCB PLACES FORM OVER SUBSTANCE
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 [...]
Medicare Set Asides: Know the Basics and Settle with Confidence
Practice Tip: Medicare Set Asides are a crucial step in settling a New York Workers’ Compensation Claim. Obtaining formal approval from the Centers for Medicare and Medicaid Services (CMS) of a set aside is [...]
Do Not Automatically Reimburse Health Providers When You Receive a HIMP-1 Request
Many carriers automatically reimburse private health insurance providers in full for medical treatment and prescriptions that were initially billed to the private health insurance provider rather than a workers' compensation carrier. In many cases, [...]
The Wholesale Waiver Agreement
CONVERTING NEW YORK STATE WCL § 15-8 REIMBURSEMENT CLAIMS INTO A LUMP SUM ON BEHALF OF THE EMPLOYER: THE WHOLESALE WAIVER AGREEMENT PRACTICE TIP: Converting future Section 15-8 reimbursement claims into a lump sum [...]
EXPOSURE TO GERMS AND ACCIDENTAL INJURIES UNDER THE WORKER’S COMPENSATION LAW – BACK TO THE FUTURE – pre-Covid-19 background
Practice Tip: be aware that claims can be made by employees outside of the healthcare setting for infections if there is proof that the infection was contracted on the job In 1975 the Court [...]
Beware of Tentative Rates and Evidence of Total Disability…
Beware of Tentative Rates and Evidence of Total Disability on Approach to Permanent Partial Disability Finding From the desk of Attorney David L. Niefer PRACTICE TIP: When addressing labor market attachment at the time [...]
NYS WCB Expands List of Authorized Providers – Here Come the Licensed Social Workers
From the desk of Patrick B. Guy, Attorney January 2020 PRACTICE TIP: The Workers' Compensation Board expanded the type of providers and the scope of the treatment and services they can independently provide to [...]
Special Considerations are Special for a Reason
December 2019 From the Desk of Patrick B. Guy PRACTICE TIP: When evaluating a medical opinion on schedule loss of use, make certain the physician is appropriately interpreting and applying any Special Considerations set [...]
Voluntary Retirement: Quitters Never Win. Winners Never Quit.
From the Desk of John H. Snyder November 2019 VOLUNTARY RETIREMENT: QUITTERS NEVER WIN. WINNERS NEVER QUIT. PRACTICE TIP: When you are faced with a claimant's retirement, and claim for awards, be certain to [...]
Old SLU Followed by New TKR: Don’t Fall Into the Which Guideline Trap
From the Desk of David L. Niefer September Newsletter Old Slu Followed by New TKR: Don’t fall into the “Which Guideline” trap PRACTICE TIP: When evaluating a claim involving a previous schedule loss of [...]
Recent Developments in Workers Compensation – Claims after 4-10-17
From the Desk of Jason M. Carlton October 2019 Temporary Awards After 130 Weeks May Now Be Permanent – Keep An Eye Out For Post-4/10/17 Claims Practice Tip: Any claim having a [...]