All posts by Lois LLC

Defending Employers in New York, New Jersey, and Longshore.

Video: Defending Occupationals and Winning Apportionment In New York

Attorney Christian Sison leads a presentation and discussion on defending occupational exposure and repetitive use claims before the New York Workers’ Compensation Board. This video is from a live presentation on September 16, 2019.

Our recent article on apportionment can be found here.

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New York’s Drug Formulary Implementation Coming

New York has announced the implementation plan for the new drug formulary.

Which New York Cases Are Impacted?

This new drug formulary will effects ALL CASES and ALL CLAIMS in New York. It’s actually great news for employers because it limits the drugs that physicians can prescribe. Think of the drug formulary as a sort of companion/extension to the Medical Treatment Guidelines. The formulary is AUTOMATIC and MANDATORY. After December 5, 2019 payers can object to provider prescriptions which fall outside the formulary.

How Does the Formulary Benefit Payers?

The formulary should reduce employer/carrier costs by eliminating or reducing the following five (5) prescription types:

  1. A drug not listed on the Formulary,
  2. A Formulary brand name drug, when a generic is available,
  3. Combination products, unless specifically listed on the Formulary,
  4. A brand name drug when a generic version of the same active ingredient(s) is a commercially available in a different strength/dosage, or
  5. A compounded drug

WONDERING what’s in the formulary?

More good news: it’s short (12 pages) and available online here: https://www.wcb.ny.gov/drug-formulary-regulation/NYS-drug-formulary.pdf

Key Implementation Dates

There are TWO KEY DATES to know:

  • DECEMBER 5, 2019: The formulary becomes mandatory in every case on December 5th! All prescriptions written on or after that date MUST FOLLOW the formulary.
  • JUNE 5, 2020: The regulations (441.3) stated that all OLD prescriptions are void and as of 12 months form the effective date of the regulation (June 5, 2019) and therefore as of June 5, 2020 all drugs prescribed must follow the drug formulary.

Questions about the formulary?

Contact Greg Lois with any drug formulary questions you have regarding your New York workers’ compensation claims.

TRIAL WIN: Attorney Karen Vincent Prevails on Dismissal in New Jersey

LOIS attorney Karen Vincent prevailed in the defense of a motion to restore in the New Jersey Workers’ Compensation Court. In that case, where Vincent represented the carrier, the petitioner filed a formal claim petition alleging an accident on June 11, 2016 with significant injuries to the lumbar spine. LOIS filed a Motion to Dismiss for lack of employment arguing that the petitioner was a 1099 independent contractor. Petitioner was unable to oppose the original Motion and instead requested a consensual dismissal without prejudice for lack of prosecution.

Several months later, the petitioner filed a Motion to Restore the claim. LOIS again prepared Opposition to the Motion advising that the petitioner had not provided any new discovery to prove employment.

On July 16, 2019, this case was listed as the Motion to Restore. Petitioner’s attorney requested the Court consider allowing him to withdraw the Motion without prejudice so that he could further investigate employment. However, Attorney Vincent pointed out to the Judge that the case had originally been dismissed for that same reason and that the accident was now three years old.

In light of same, the Judge of Compensation held a hearing on the Motion and attorney Karen Vincent won a dismissal WITH prejudice, which is beneficial to the employer because it means the petitioner can never bring those claims again.

TRIAL WIN: Attorney Andrea Abudayeh Prevails on Attachment in New York

LOIS Attorney Andrea Abudayeh prevailed in a case where the claimant was directed to produce evidence of attachment to the labor market because his doctor conceded a partial disability. Instead, the claimant produced evidence that he underwent authorized surgery a week before the hearing. The claimant also argued that he did not have to look for work as he was still employed by the employer of record. He submitted a letter from the employer allegedly confirming the claimant was employed.

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TRIAL WIN: Attorney Declan Gourley Prevails on Claim Disallowance in New York

LOIS attorney Declan Gourley was successful in getting a low back claim disallowed by the trial judge on August 6, 2019 due to conflicting histories and mechanisms of injury. At trial, through effective cross-examination of the claimant and presentation of employer witnesses, Gourley showed that claimant was terminated for cause and did not notify her employer of a work related injury until after the termination. Additionally, LOIS was able to emphasize numerous discrepancies between the claimant’s testimony, her medical reports and her claim form (C-3). While the claimant insisted notice was provided prior to her termination, the law judge determined there was insufficient evidence that a compensable injury occurred and the reporting of the injury was merely an afterthought following the unrelated termination for cause.

TRIAL WIN: Attorney Joseph Melchionne Prevails In App-Based Employment Defense

LOIS attorney Joseph Melchionne was successful in getting a claim disallowed based upon an argument that no employer/employee relationship existed between a deliver dasher and Door Dash based upon the facts of the claim and the current case law on the issue. The claimant was injured when he was struck by an SUV in New York City while making a delivery on a bicycle through the Door Dash application. The claimant injured his right leg and right ankle and required surgery to repair his fractured ankle. The claim was denied by carrier based upon an argument that the claimant was an independent contractor and not an employee of Door Dash.

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