All posts by Declan Gourley

Declan is an attorney licensed to practice law in New Jersey, New York and the U.S. District Court of New Jersey. Declan is a Partner at Lois LLC where he defends employers and carrier in New York workers’ compensation claims. He can be reached directly at or 201-880-7213.

Appellate Division Issues Decision Clarifying How To Calculate Schedule Loss of Use For Shoulder Injuries

Case: Matter of Maloney v Wende Correctional Facility

In determining the Schedule Loss of Use (SLU) percentage applicable to a shoulder injury, whether it is appropriate to assign separate loss of use values for deficits in anterior flexion and abduction or if this is duplicative and results in an inflated SLU percentage.

Facts of Case
Claimant was a Correctional Officer who injured himself while working in July 2013. The claim was established for a right shoulder injury. At permanency, the claimant’s treating physician opined claimant had 90% SLU of the right arm while an IME opined the claimant had 50% SLU of the right arm. Following litigation of the issue, the law judge credited the IME opinion over that of the treating physician and found claimant to have 50% SLU of the right arm. The Workers’ Compensation Board affirmed the Law Judge’s finding and the claimant appealed to the Third Department.

Board decision is affirmed, finding claimant to have 50% SLU of the right arm. The Court noted “the Board is vested with the authority to resolve conflicting medical opinions concerning the SLU percentage to be assigned to aspecific injury.” Additionally, the Court noted “judicial review is limited, and the Board’s determination will not be disturbed as long as it is supported by substantial evidence.” Continue reading Appellate Division Issues Decision Clarifying How To Calculate Schedule Loss of Use For Shoulder Injuries

Virtual Hearings Coming To New York!

The New York Workers’ Compensation Virtual Hearings pilot program will be rolled out starting next week for hearings at the Menands (Albany) hearing point.

Virtual Hearings will allow injured workers, attorneys/representatives, witnesses and other participants to attend hearings online. Participants will no longer have to travel to a hearing site to attend their hearing. For the time being, parties will have the option to attend any hearing eligible for a virtual hearing either in person, as they normally would, or via the Board’s video conference software program.

According to the Board website:

Virtual Hearings will be rolled out gradually to districts throughout New York State after the successful completion of the Board’s Virtual Hearing pilot. The pilot moves into the next stage with Virtual Hearings available in the Albany District Office, located in Menands, beginning November 13, 2017.

If you are eligible to attend your hearing virtually, you will see a notification of ““Virtual Hearing Available” adobe pdf at the bottom of your hearing notice, along with detailed instructions.

There is no set time frame for when all Workers’ Compensation hearings in the state will be eligible for a virtual hearing but it is clear this is coming state-wide in the near future.

Anyone that has set foot in a hearing point recently has seen updated technology in many of the hearing points and presumably this is the Board preparing for the roll out across the state.

The Board has been hosting a series of webinar training sessions for attorneys and representatives to provide instructions on how to attend hearings virtually, as well as how to use the new check-in procedure when appearing in person. During a “Question & Answers” segment of one of the webinars it was disclosed that claimants will be allowed to attend virtual hearings using audio only but attorneys and representatives will be required to appear via video. Additionally, it appears the plan is eventually for all hearings aside from discrimination matters to be eligible for the virtual hearing process.

It is anticipated there will be many “growing pains” as the Board implements this new process. Presumably, regulations and new Board rules will follow.

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New York Court of Appeals Rules Amendment to §25-a Is Constitutional

What is the Fund?
As a background, §25-a provides for a Special Fund to be set up especially to administer and pay claims arising from the reopening of closed cases. The primary purpose of §25-a is to transfer liability for awards from self-insured employers and insurance carriers to the Special Fund where the claim has become “stale.” Under §25-a, claim is “stale” if it meets certain criteria:

  1. more than seven years has elapsed from the date of the injury or death, and;
  2. where more than three years has elapsed after the last payment of compensation.

Essentially, insurance carriers and self-insured employers could potentially shift liability to the Special Fund in claims that met the criteria of §25-a. Whether a case has been officially closed so as to shift liability to the Special Fund is a decision for the Board to make. Upon transfer to the Special Fund, the carrier or self-insured employer is no longer responsible for payment or management of the claim.

The Law was changed in 2013 to close the Fund to new claims.
In an effort to phase out the Special Fund/Fund for Reopened Cases, the Business Relief Act of 2013 created an amendment to §25-a that no application by an employer or insurance carrier to transfer liability to the Fund for Reopened Cases would be accepted by the Board on or after January 1, 2014. In short, the amendment to be addressed in American Economy Ins. Co. v State of New York closed the reopened case fund to newly reopened claims as of January 1, 2014. Following the amendment to §25-a, any claims that were reopened that previously would have transferred to the Fund became the obligation of the carrier, liability would not shift to the Special Fund.

On October 24, 2017, the Court of Appeals ruled that retroactive closure of the Fund for Reopened Cases was not unconstitutional.
Insurance carriers and self-insured employers have been waiting anxiously for the Court of Appeals to render a decision of the appeal filed by The State of New York and will not be happy with the ruling. Continue reading New York Court of Appeals Rules Amendment to §25-a Is Constitutional

New York Workers’ Compensation Board Announces New Hearing Process for Opioid Weaning Issues

Recognizing that opioid addiction is a major public health crisis, the New York Workers’ Compensation Board today announced a new hearing process to address opioid weaning issues. In 2014, the Board implemented the “Non-Acute Pain Medical Treatment Guidelines” (“MTG”) to address opioid usage in workers’ compensation claims.

Declan Gourley
Declan Gourley, Esq.

As the “Non-Acute Pain Medical Treatment Guildeines” makes clear, long-term opioid use is only recommended in limited circumstances, and must involve constant clinical monitoring and re-evaluation. The guidelines also includes best practices for safely weaning injured workers from opioids and other narcotics.

Requesting a Hearing

Under the new process, the insurance carrier or self-insured employer can now request a hearing to address whether the claimant should be weaned from opioids. In order to request the hearing, the Board requires an IME report or Records Review, “which indicates weaning goals and recommended weaning program or resource” be submitted with the RFA-2.
Continue reading New York Workers’ Compensation Board Announces New Hearing Process for Opioid Weaning Issues

How an Award of Workers’ Compensation Benefits Impacts Other Disability Benefits

In New York, when an individual suffers an accident or illness arising out of and in the course of employment, workers’ compensation becomes the primary source of wage replacement and medical benefits. It is important to understand how workers’ compensation benefits affect or are affected by other available benefit programs. Some of these additional benefit programs duplicate workers’ compensation benefits, some supplement workers’ compensation benefits, and others are paid instead of workers’ compensation benefits.

Private Long Term Disability Benefits: Some employers voluntarily provide employees with long term disability benefits. Individuals can also obtain these policies on their own. Long term disability benefits are typically available for periods of disability which extend beyond an ‘elimination period.’ These policies issue indemnity benefits to policyholders who are disabled and unable to work beyond a set period of time, i.e. six months, 26 weeks, or another set period of time specified in the long term disability policy.

The Workers’ Compensation Board does not have jurisdiction over private long term disability benefit plans. As there is no jurisdiction, the Board has no legal authority to direct reimbursement for a duplication of benefits. Therefore, a claimant can receive both workers’ compensation indemnity benefits and benefits from their long term disability policy at the same time and even receive more from the two than their normal weekly wage while working. However, most long term disability policies contain provisions that require reimbursement to the long term disability carrier or take an offset for any workers’ compensation benefits. These reimbursements and offsets are to be determined in accordance with the terms of the long term disability policy. Continue reading How an Award of Workers’ Compensation Benefits Impacts Other Disability Benefits

New York Workers’ Compensation Board Adopts New Regulations For Appeals

The New York Workers’ Compensation Board has adopted new regulations for Administrative Review, Full Board Review, and Applications for Reconsideration. The new regulations affect all appeals at the Board level.

The regulations were detailed in a Board Bulletin issued last week. The new regulations affect the format of the appeal briefs, page length of the appeal briefs, methods of filing your appeal with the Board, and reasons for Board denial of a request for review.

The Board has again modified the cover pages that must be used when filing an appeal, a rebuttal, or a request for full Board review. The new forms are available directly on the Board website; Application For Board Review (Form RB-89) and Rebuttal of Application for Board Review (Form RB-89.1). After December 1, 2016, the Board will only accept the modified forms. The Board has made it clear that appeals and rebuttals submitted on the old forms after December 1, 2016 will not be reviewed.

The new regulations limit the page length of an appeal brief. According to the Bulletin:

The Board may deny applications when the brief exceeds eight pages, unless the appellant specifies in writing why the legal argument could not have been made within the eight-page limit. In those cases, the brief can be no longer than 15 pages.

The modified cover pages (RB-89, RB-89.1), specify the criteria for margin and font size for legal briefs.

The full text of the new §300.13 can be found here.

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