The post Increase to Minimum Weekly Benefits appeared first on Troy, Albany, Schenectady, NY | Stockton, Barker & Mead, LLP.
]]>The new legislation amends Section 15(6)(a) in which it allows for an increase of the minimum rate going forward. For an accident occurring on or after January 1, 2024, the minimum rate is set at $275.00 a week. For accidents occurring on or after January 1, 2025, the minimum rate is set at $325.00 a week. For accidents occurring each year following, starting July 1, 2026, and on or after July 1 of each succeeding year, the minimum rate is one fifth of the New York State average weekly wage for the year the accident is reported.
The exception to each minimum rate is: if the claimant’s average weekly wage is equal to or less than the statutory minimum rate, they will get their entire calculated average weekly wage.
This change is outlined in Subject Number 046-1649 (Subject Number 046-1649 (ny.gov)).
This new legislation brings the minimum rates in line with how maximum rates have been calculated for over a decade in Workers’ Compensation. The maximum weekly benefit amount is based on the New York State average weekly wage of the previous calendar year as reported by the Commissioner of Labor to the Superintendent of Insurance on March 1 of each year. The new rates then go into effect for accident dates July 1 and onward each year.
While this increase minimum payments to claimants each year will affect all insurance carriers, small businesses and self-insured employers are more likely notice the effects.
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]]>The post New Medical Treatment Guidelines Effective May 2, 2022 appeared first on Troy, Albany, Schenectady, NY | Stockton, Barker & Mead, LLP.
]]>The Work-Related Depression and Depressive Disorders Guidelines allow a maximum duration for psychological intervention of 3 to 6 months. For PTSD, the maximum duration is 12 months.
The Guidelines provide that the time to produce affect is 2 to 8 weeks. The optimum duration is 6 weeks to 3 months for cases involving depression; and 3 to 6 months for cases involving PTSD.
Mental health counseling and treatment often extends beyond the maximum duration allowed by these Guidelines. Contact us to discuss how these guidelines apply to your cases.
– By William Pausley
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]]>The post Schedule Loss of Use Rules Revised by Court of Appeals appeared first on Troy, Albany, Schenectady, NY | Stockton, Barker & Mead, LLP.
]]>Two recent decisions change the rules for calculating schedule losses of use.
In April, the Court of Appeals published its decisions in Johnson v. City of New York and Liuni v. Gander Mountain. These two appeals were consolidated and resolved by the Court in one written decision.
Johnson injured both knees in 2006. He then injured both hips in 2009. A permanency award was made in the second case first and Johnson was awarded a 50% SLU of his left leg and 52.5% schedule loss of use of his right leg due to the 2009 injuries. Johnson then sought permanency findings for his 2006 knee injuries. He presented medical proof of an 80% SLU of his left leg and a 40% SLU of his right leg. His doctor acknowledged that combining the knee and hip schedules would result in a 130% SLU of the left leg and a 92.5% SLU of the right leg.
A WCLJ awarded the 80% SLU of the left leg and the 40% SLU of the right leg due to the 2009 hip injuries but reduced each award by the schedules previously awarded in the 2006 knee injury case. The result was a 30% increase of the left leg SLU and no increase of the right leg SLU.
Liuni injured his left elbow in 2007 and was awarded a 22.5% SLU of his left arm. In 2014 Liuni sustained another work-related injury which led to a consequential injury to his left shoulder. He presented medical evidence of an overall 50% SLU of the left arm, 22.5% due to the left elbow and 27.5% due to the left shoulder.
A WCLJ agreed with Liuni’s medical expert and awarded an increase of 27.5% to the left arm SLU. The WCB reversed and awarded only a 5% increase in the left arm SLU (the difference between the initial 22.5% and the subsequent 27.5%).
The Appellate Division affirmed the WCB in both cases citing its prior decision in Matter of Genduso v New York City Dept. of Educ. (164 AD3d 1509 [3d Dept 2018]). The Court of Appeals accepted both for review.
The Court of Appeals rejected Johnson’s claim of a higher SLU for his legs, but accepted Liuni’s claim of a higher SLU for his left arm. The difference: Liuni presented medical evidence that the injuries to his elbow and shoulder were separate pathologies, and each individually caused a particular amount of loss of use of his arm. Johnson did not.
– By Matthew Mead
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]]>The post Schedule Loss of Use Rules Revised by Appellate Division appeared first on Troy, Albany, Schenectady, NY | Stockton, Barker & Mead, LLP.
]]>Blue injured his right knee in 2016. When his doctor evaluated the right knee for permanency, he found that Blue had significant chondromalacia patella as well as a medial meniscal tear. He also found that Blue’s range of motion deficits justified a 50% SLU of the right leg. However, due to the chondromalacia patella, he limited his opinion to a 10% SLU of the right leg based on § 7.5, Special Consideration No. 4, of the 2018 Workers’ Compensation Guidelines for Determining Impairment.
Chapter 7 of the 2018 guidelines describes the process for determining impairment due to injuries to the knee and tibia. Section 7.4 directs that the process begins with an assessment of whether any special considerations apply. Section 7.5 enumerates 13 special considerations and includes this instruction:
The following are special considerations that have enumerated schedule loss of use values. Other defects may be added when specified or when no schedule value is provided. However, the maximum schedule loss of use value cannot exceed the value of ankylosis.
Special Consideration No. 4 states: “Chondromalacia patella, mild to marked degree, equals 7½ – 10% loss of use of the leg, depending on the defects of motion and atrophy of muscles found.”
Because Special Consideration No. 4 does not specify that motion defects should be added, the WCB has heretofore consistently ruled that the maximum schedule loss of use available when chondromalacia patella is present is 10%. This is the interpretation applied by Blue’s doctor when he evaluated the knee for permanency.
The Appellate Division ruled that the instructions in §§ 7.4 and 7.5 are ambiguous and that the WCB’s interpretation of the ambiguous instructions in these two sections “does not reflect a fair and considered judgment on the circumstance presented in this case.”
Since the Appellate Division’s ruling, the WCB has issued its first post-Blue, Board Panel decision regarding Special Consideration No. 4. In Employer: Sky Chefs, Inc. [2022 NY Wrk. Comp. G2441551 (June 15, 2022)], a claimant had causally related diagnoses of meniscal tears and chondromalacia patella in both knees. The Board Panel awarded the claimant an SLU value for range of motion loss plus an SLU value for chondromalacia patella.
Moving forward, it is likely that where claimants have diagnoses of the knee which support a reason for range of motion loss, the WCB will award an SLU for the loss of motion regardless of a chondromalacia diagnosis. In other words, just because a diagnosis of chondromalacia is present, there is no longer an expectation that a cap of 10% SLU will be found so long as other pathology exists. In fact, as supported by Sky Chefs, Inc., the two SLU values (i.e., range of motion loss and chondromalacia) may now be combined.
Every case is different. Contact us to discuss how this decision may impact your case.
– By Sean Weber
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]]>The post Legislature votes to redefine temporary total disability, potentially creating major problems for carriers appeared first on Troy, Albany, Schenectady, NY | Stockton, Barker & Mead, LLP.
]]>If the bill becomes law, it will significantly increase carriers’ liability on Workers’ Compensation claims. It seems that total disability would become the default for any periods of temporary disability. It also seems likely that more schedule loss of use cases would result in increased awards for protracted healing periods. Labor market attachment would presumably cease being a viable defense.
At this point, the governor has until the end of the year to sign the bill into law or veto it. It is currently unclear what the governor’s position is. If passed, the bill would significantly change the Workers’ Compensation Law in a way that will be very unfavorable to employers and carriers. We will continue to track the bill and update our clients with any developments.
– By Nicholas Herubin
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]]>The post Symptom Magnification in SLU Claims appeared first on Troy, Albany, Schenectady, NY | Stockton, Barker & Mead, LLP.
]]>When an attending physician or Independent Medical Examiner observe symptom magnification which is documented in writing, WCL §114-a(1) immediately becomes an issue for consideration. In cases where the injured worker engages in symptom magnification at an Independent Medical Examination, a repeat examination by the Independent Medical Examiner is usually not appropriate.
When a claimant engages in symptom magnification, he/she essentially negates any range of motion deficit findings as there is no way to ascertain whether or not the claimant had a lesser deficit or no deficit at all. Upon a finding that a claimant has severely magnified his symptoms, the range of motion findings rendered are always found unreliable with respect to making an objective assessment of the claimant’s loss of use.
When the claimant fails to cooperate and provide full effort at the time of a Schedule Loss of Use evaluation, the claimant is not generally rewarded by the Board for this misconduct. (See Matter of DOCCS Coxsackie Correctional Facility, 217 NY Wrk Comp G1116630; see also DOCCS Wende Correctional, 217 NY Wrk Comp G0739656). We have frequently found that when an injured worker elects to magnify his symptoms to an Independent Medical Examiner at the time of a permanency evaluation, an excellent opportunity exists to avoid a permanency award. In some cases, even a permanent disqualification request may be granted pursuant to WCL §114-a.
– By William Pausley
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]]>The post New Maximum Weekly Benefit Rate Effective July 1, 2022 appeared first on Troy, Albany, Schenectady, NY | Stockton, Barker & Mead, LLP.
]]>The use of the NYS AWW to calculate the maximum compensation rate began in 2010. The table below shows how the rates have changed.
Date of Accident | Rate | Increase | ||
7/1/2022 | to | 6/30/2023 | $1,125.46 | 5.9% |
7/1/2021 | to | 6/30/2022 | $1,063.05 | 10.0% |
7/1/2020 | to | 6/30/2021 | $966.78 | 3.5% |
7/1/2019 | to | 6/30/2020 | $934.11 | 3.2% |
7/1/2018 | to | 6/30/2019 | $904.74 | 3.9% |
7/1/2017 | to | 6/30/2018 | $870.61 | 0.7% |
7/1/2016 | to | 6/30/2017 | $864.32 | 2.4% |
7/1/2015 | to | 6/30/2016 | $844.29 | 4.4% |
7/1/2014 | to | 6/30/2015 | $808.65 | 0.7% |
7/1/2013 | to | 6/30/2014 | $803.21 | 1.4% |
7/1/2012 | to | 6/30/2013 | $792.07 | 2.5% |
7/1/2011 | to | 6/30/2012 | $772.96 | 4.5% |
7/1/2010 | to | 6/30/2011 | $739.83 | 23.3% |
7/1/2009 | to | 6/30/2010 | $600.00 |
– By Matthew Mead
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]]>The post Changes to Schedule Loss of Use (SLU) / EC-81.7 Process appeared first on Troy, Albany, Schenectady, NY | Stockton, Barker & Mead, LLP.
]]>Here’s what has changed:
– By Matthew Mead
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]]>The post Section 32 Waiver Agreements / Release of Liability appeared first on Troy, Albany, Schenectady, NY | Stockton, Barker & Mead, LLP.
]]>The bulletin made clear that all Section 32 Waiver Agreements were required to contain all the terms and conditions agreed to between the parties as a condition of settling a workers’ compensation claim, and that the Board would disapprove a waiver agreement if it became aware that as a condition of entering into the waiver agreement, the parties entered into a separate agreement or contract that contained terms which were not included in the agreement submitted to the Board for approval.
The bulletin further mandated that beginning on December 6, 2021, all waiver agreements submitted to the Board for approval be accompanied by a Carrier’s/Self-Insured Employer’s Affirmation (Form C-32AF), executed by the person who signed the agreement on behalf of the insurance carrier/self-insured employer, affirming that the agreement contained all the terms and conditions agreed to by and between the claimant and the insurance carrier/self-insured employer.
The October 8, 2021 bulletin also stated:
It is generally permissible and appropriate to resolve claims or potential claims in other forums, which are outside of the Board’s jurisdiction, as part of a Section 32 Waiver Agreement when those other claims arise out of the same nucleus of operative facts as the claim for workers’ compensation benefits that is being settled. For instance, the circumstance surrounding a workers’ compensation claim for mental injuries caused by workplace stress might also serve as the basis of a civil rights claim. A Section 32 Waiver Agreement may include a general release whereby the claimant agrees to waive all claims arising out of the same nucleus of operative facts of the workers’ compensation claim being settled. The agreement must, however, delineate what consideration is being paid in exchange for the general release or waiver of a specific claim arising out of the same nucleus of operative facts of the workers’ compensation claim, which is separate from the consideration paid to the claimant for waiving their right to ongoing workers’ compensation lost wage benefits or future medical expenses. An agreement containing the waiver of a claim or claims outside the Board’s jurisdiction that does not separately delineate the consideration being paid in exchange for the waiver will not be approved by the Board.
Please be aware that even if the terms of a Section 32 Waiver Agreement are consistent with the requirements outlined in the previous paragraph, the Board may nonetheless disapprove the agreement if it finds, based on the circumstances of the particular claim, that the provision is unfair, unconscionable, improper as a matter of law, or the result of an intentional misrepresentation of material fact.
A Section 32 Waiver Agreement that contains a provision waiving a claim or claims that do not arise out of the same nucleus of operative facts as the workers’ compensation claim being settled will not be approved by the Board unless the agreement identifies the specific claim being waived and the claim has already been commenced. The Board will not approve an agreement that contains a general release of any and all such unrelated claims, or an agreement that seeks to waive a specifically identified claim that has not yet been brought by the claimant. If a Section 32 Waiver Agreement contains a provision waiving an unrelated claim that has already been commenced by the claimant, the agreement must delineate what consideration is being paid in exchange for the waiver of that claim, which is separate from the consideration paid to the claimant for waiving their right to ongoing workers’ compensation lost wage benefits or for future medical expenses. An agreement containing the waiver of an unrelated claim outside the Board’s jurisdiction that does not separately delineate the consideration being paid in exchange for the waiver will not be approved by the Board.
Please be aware that even if the terms of a Section 32 Waiver Agreement are consistent with the requirements outlined in the previous paragraph, the Board may nonetheless disapprove the agreement if it finds, based on the circumstances of the particular claim, that the provision is unfair, unconscionable, improper as a matter of law, or the result of an intentional misrepresentation of material fact.
Section 32 Waiver Agreements will sometimes include a provision whereby the claimant agrees to resign from employment with the employer and/or to never reapply for employment with the employer. A waiver agreement containing such a provision may be approved by the Board, provided that the agreement delineates what consideration is being paid in exchange for the agreement to resign and/or never reapply, which is separate from the consideration paid to the claimant for waiving their right to ongoing workers’ compensation lost wage benefits or for future medical expenses. An agreement containing a provision whereby the claimant agrees to resign and/or never reapply that does not separately delineate the consideration being paid in exchange for the waiver will not be approved by the Board.
Please be aware that even if the terms of a Section 32 Waiver Agreement are consistent with the requirements outlined in the previous paragraph, the Board may nonetheless disapprove the agreement if it finds, based on the circumstances of the particular claim, that the provision is unfair, unconscionable, improper as a matter of law, or the result of an intentional misrepresentation of material fact.
– By Matthew Mead
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]]>The post When is Payment Required Pending Administrative Review? appeared first on Troy, Albany, Schenectady, NY | Stockton, Barker & Mead, LLP.
]]>Following the Decision of the Workers’ Compensation Law Judge, there are two further levels of appeal. Any party may file a request for review of a WCL Decision pursuant to WCL §23 within 30 days. At this level, the appeal is reviewed by a panel of three WCB commissioners. Any party dissatisfied with the decision of the three member panel may appeal to the Appellate Division, Third Department.
There is a potential third step, which is a request for Full Board Review. Generally, Full Board Review is discretionary unless there is a dissenting Board member in the initial Appeal.
Only the initial appeal to a three member panel stays the obligation to pay benefits, both medical and indemnity. A request for Full Board Review does not stay the obligation to pay benefits. Nor does an Appeal to the Appellate Division Third Department or the Court of Appeals stay the payment of compensation awarded.
The initial Board Level Appeal Decisions need to be reviewed carefully to avoid a penalty. Unless payment is made within 10 days of a Board Level Decision affirming an award, a 20% penalty is due pursuant to WCL §25-3(f).
There is no stay of payment because of either Discretionary Full Board Review or Mandatory Full Board Review. Upon the filing of a Board Panel Decision which determines that compensation and/or medical benefits are payable, the carrier liable, must provide payment within 10 days of the filing of the Decision. Otherwise a 20% penalty will be due.
Occasionally while cases are pending at the Board Level, the issues raised on Appeal will become moot. Sometimes this occurs because of subsequent developments in the case. In other cases, the parties have reached a mutual agreement or stipulation to resolve the issues presented on the appeal. It is the Board’s current practice to impose substantial penalties pursuant to WCL §114-a (3)(ii) on parties, including defense attorneys, when an unnecessary appeal is not rescinded. Therefore, a written withdrawal of any pending Board Level Appeal is required to avoid a WCL §114-a penalty when the issues presented on Appeal become moot.
– By William Pausley
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