Susan R. Duffy Receives Workers’ Compensation Award
We are pleased to announce that our partner, Susan R. Duffy, received the Mary M. Russo-John Sciortino Award from the Torts, Insurance and Compensation Law Section of the New York State Bar Association at its Annual Dinner in New York City. The award is given to a lawyer in recognition of outstanding contribution to the practice of law in the field of Workers’ Compensation. Congratulations Susan!
CRC Announces New Contractor for Conditional Payment Recovery
As many of you know, we perform conditional payment searches and handle conditional payment recovery demands for our clients as part of our Medicare Secondary Payer practice. As of2/12/18 the Commercial Repayment Center (CRC) will have a new CRC contractor, Performant Recovery Inc. There will be a “dark days” transition period from 2/9/18 to 2/12/18, sowe would ask that any conditional payment reimbursement requests (CPN, CPD, NOI, Referrals to Dept. of Treasury) that are due from 2/9/18 to 2/12/18 be referred to us for handling in advance of 2/9/18 so that we can be sure they are timely filed.
The contractor will have a new address and fax as of 2/12/18:
Medicare Commercial Repayment Center – NGHP ORM PO Box 269003 Oklahoma City, OK 73216-9003 FAX (844) 315-7627
The call center number will remain the same (855) 798-2627.
The CMS conditional payment recovery process will remain the same, as the processes (Section 111 reporting, letters of authority, deadlines, etc.) are dictated by CMS, not the contractor in place at a given time.
Cases that are pending with CGI Federal (the current contractor) will be transferred to Performant Recovery.
Appellate Division Issues Two Important SLU Decisions in January
As befits the adoption of the Board’s just-barely revised SLU Guidelines on January 1st, the Appellate Division also has had SLUs on the mind, issuing two decisions concerning same in January 2018.
In the first,Parody v. Old Dominion Freight, the Court held that the Board is not bound by the medical opinions of schedule loss of use (SLU) in the record and may fashion its own SLU assessment based on the medical evidence and the impairment guidelines if the ultimate result is supported by the record, even if the percentage loss of use awarded has not been given by any medical expert in the record.
This opens additional avenues for compromising as well as litigating SLU awards because the parties need not assume that the Board will be forced to choose the SLU opinion of one of the medical experts. The Board is permitted to selectively adopt and reject portions of expert opinion and testimony, and thus could make a different finding on percentage loss of use, using the medical evidence in the record, than that reached by the medical experts.
The second case,Maloney v. Wende Correctional Facility, holds (as we have long argued) that a medical expert may not add both the values for deficits in anterior (or forward) flexion and abduction in determining percentage SLU of the arm because the combined value of same could exceed 80%, which is the SLU percentage applicable to ankylosis under the Board’s Impairment Guidelines. This decision provides authority from the Appellate Division to support the Board’s own line of cases followingNFTA Metro that considering loss of range of motion in both abduction and forward flexion would be duplicative and improper. Of note, the Board’s new2018 SLU Impairment Guidelines also clarify that the two values should not be duplicated.
Also of note inMaloney was the Court’s rejection of the claimant’s argument that the employer waived its defenses to the attending physician’s SLU opinion because it failed to file a pre-hearing conference statement. The Court noted that the filing of a pre-hearing conference statement is contemplated where the claim for workers’ compensation benefits is controverted. The Court said that inMaloney, the employer did not controvert the claim and that the Board admitted error in directing the employer to file a pre-hearing conference statement. The Court’s statement concerning pre-hearing conference statements being filed in contemplation of controversy may allow an argument to avoid the Board’s attempt to preclude issues where it directs a pre-hearing conference statement in an established or accepted claim.
Appellate Division Requires Board to Obtain Medical Evidence of Effect of Injury on Claimant’s Functional Abilities in Determining LWEC
On 12/14/17, the Appellate Division, Third Department, decided King v. Riccelli Enterprises, which held that when assessing a claimant’s loss of wage earning capacity (LWEC), the record must contain medical evidence of how the work injury impacts claimant’s functional capabilities. The record in King contained permanent partial disability rankings under the 2012 Guidelines, and a generic 15 lb. lifting restriction. The Court held that this, by itself, was insufficient, and that the physicians needed to explain how the claimant’s permanent medical impairment impacted his ability to perform relevant physical tasks.
This decision serves as a reminder for medical professionals of the level of detail necessary for a competent medical report on permanency. LWEC findings by the Board where the record lacks a detailed description of claimant’s physical capabilities will be vulnerable to attack. Doctors must fill out the C-4.3 form completely, including the part requesting information on specific physical task capabilities. If the doctors on record have not provided this information, the parties may need to obtain it by deposition testimony or risk having a LWEC finding reversed or remanded on appeal.
Claimants Trying to Prove Re-Attachment to Labor Market Must Show Connection Between Unsuccessful Job Search and Work Injury
On 12/14/17, the Appellate Division, Third Department, decided Pontillo v. Consolidated Edison of New York. The Court held that when a claimant voluntarily retires and tries to claim re-attachment to the labor market, mere production of evidence of an unsuccessful job search by itself is insufficient. The claimant must also prove that his or her “earning capacity and …ability to find comparable employment has been adversely affected by his or her disability,” and that “…other factors totally unrelated to [the] disability did not cause the adverse effect on his or her earning capacity.” (internal quote omitted).
InPontillo, the claimant had an established claim for pulmonary fibrosis. The employer provided a light-duty job, which claimant worked at for two days before retiring. He later claimed re-attachment to the labor market. He was never classified with a permanent disability. Claimant produced evidence of an unsuccessful job search, and the WCLJ made awards, finding him re-attached to the labor market. The employer appealed, arguing that claimant failed to prove his unsuccessful job search was causally related to his work injury. The Board Panel affirmed, and the employer appealed to the Appellate Division.
The Court reversed, holding that the Board failed to address the employer’s burden of proof argument, and remanded for further proceedings. Based on this holding, merely producing proof of an unsuccessful job search after voluntary removal from the labor market is insufficient. The claimant must also affirmatively prove a causal nexus between his or her work injury and the unsuccessful job search to re-attach to the labor market.
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