Category Archives: New York

Trial Win: Attorney Rhey Duque on “Going and Coming” Defense

In a case involving a major national retailer, LOIS attorney Rhey Duque was successful in having a claim disallowed by the trial judge on 5/2/19 after cross-examination of the claimant by Duque. This was despite the defense IME conceding causal relationship. The claimant was employed by a retail store in a mall and alleged a fall in the mall parking lot close to an entrance to the mall. Mr. Duque was able to show that the accident was not compensable as claimant fell in the a mall parking lot and there were no special hazards that the general public was not also exposed to. While the claimant attempted to argue that she parked in close proximity to her employer’s location and was walking to an employee entrance, Mr. Duque obtained favorable testimony that the claimant was not directed by the employer as to where she must park her vehicle and conceded the employee entrance was inside the mall and she had not yet entered the mall’s entrance which was also used by the general public. This win was a direct result of Mr. Duque’s aggressive cross-examination that brought to light the key facts necessary to support disallowance of the claim.

Trial Win: Partner Tashia Rasul Wins Reimbursement for Employer After Claimant Testifies Fraudulently

LOIS Law Firm attorney and Construction Practice Team Partner Tashia Rasul successfully won a judgment of Section 114-a fraud before a New York Workers’ Compensation Law Judge. After covert surveillance captured the Claimant performing activities that contradicted what he represented to his doctors and what he previously testified to under oath, Tashia presented that the Claimant was making material misrepresentations to the Court in order to receive Workers’ Compensation benefits. Continue reading Trial Win: Partner Tashia Rasul Wins Reimbursement for Employer After Claimant Testifies Fraudulently

WCB Fee Schedule Changes Address Out of State Medical Provider Claims

Effective April1, 2019, the Workers’ Compensation Board changed the Medical fee Schedule in effect for medical payer reimbursement in New York workers’ compensation claims. This will have a significant impact on the many Medical Provider Claims filed by New Jersey doctors and medical providers seeking reimbursement for services rendered to New York workers’ compensation claimants where the Jersey provider is demanding reimbursement at a much higher (“usual and customary”) rate than would be allowed under New York’s fee schedules.

The Changes to the Fee Schedule.

Changes to General Ground Rule 16 govern reimbursement for out-of-state treatment. The Rule now provides that a claimant who lives in New York State may treat with a qualified or Board authorized out-of-state medical provider when such treatment confirms to the Workers’ Compensation law and Regulations, the MTG’s and the Medical Fee Schedule. Payment shall be made to the medical provider as set forth herein and using the regional conversion factor for the zip code where the claimant resides.

How are fee schedule reimbursements determined?

Simple. The methodology for calculating medical reimbursement fees remains unchanged. Fee schedules are both region and activity-specific. To calculate a fee for a particular procedure:

  • Identify the appropriate conversion factor, which is listed within the respective Ground Rules document. There is a conversion factor for each geographic region and general type of medical service provided (e.g., surgery, radiology, etc.). For example, in the Medical Ground Rules document, you’ll find the conversion factor table on page 12.
  • Once you have the conversion factor you need, find the CPT code for the specific type of service you want to look up.
  • For each CPT code, there is a Relative Value Unit (RVU) listed.
  • Multiply the RVU by the conversion factor to calculate the fee for that service.

The Takeaway.

The New York Workers’ Compensation Medical fee Schedules now specifically address how providers who render treatment to New York residents out-of-state should be reimbursed. This means that a qualified out-of-state medical provider should be reimbursed (paid) at the rate applicable in the region where the claimant resides (in New York). The Board has continuing jurisdiction to resolve disputes between medical providers and insurers for out-of-state medical care and now has set forth a bright-line rule for how those providers will be reimbursed.

Trial Win: Noah Pollack On Date of Disablement

In a controverted occupational disease claim where the claimant worked for three separate employers contemporaneously with the alleged disability, and depending on the setting of the date of disablement, either of the three employers could have been found to be the liable party. Adding more difficulty to the defense, our client was actually the last employer for whom the claimant worked. Generally, with occupational disease claims, the last employer is deemed liable, as the date of disablement can be set when the claimant stopped working. Moreover, the first medical reports were filed after the claimant began working for our insured. However, based on testimony taken from multiple employer witnesses as well as the claimant, we successfully argued that because of the claimant’s changed job duties when she began working for our insured (i.e. they were less strenuous), it should be a different employer that should be liable and the date of disablement should be set as the date prior to when the claimant began working for our insured. The Law Judge agreed, and set the date of disablement two days prior to when the claimant began working for our insured, placing liable on a different party. While the claim was established, our client was not deemed liable.
Case: TD v. FSH
Court: Brooklyn Workers’ Compensation Board
Trial Attorney: Noah Pollack, Esq.

IME Watchdog Materials Held Privileged

On March 19, 2019 the Appellate Divison of New York’s Supreme Court ruled that the materials held by and created by a third-party observer to an independent medical evaluation were protected by litigation privilege. The observer, a service called “IME Watchdog” was hired by the plaintiff’s counsel in a civil action. The service describes itself as “a weapon against insurance companies and their hired gun IMEs.”

This is a case of first impression in New York and can be found atMarkel v. Pure Power Boot Camp. In Markel, the plaintiff appeared for a physician exam with an IME doctor chosen by the defense. The plaintiff’s attorney hired a person from IME Watchdog to be present. The defense then served a subpoena on the IME Watchdog service seeking notes, reports, and other materials. The IME Watchdog ultimately prevailed in having the subpoena quashed as the court found that the qualified litigation privilege applied.

The court ruled that the materials (including the notes and reports created by the IME Watchdog and which were the subject of the subpoena) were created in preparation for litigation. The court found that the IME Watchdog was an agent of plaintiff’s attorneys and therefore the materials were protected under CPLR 3101(d)(2).

Trial Win: Lois Partner Christian Sison Prevails on Labor Market Attachment

Lois Law Firm attorney Christian Sison recently secured a favorable result for a client before the New York Workers’ Compensation Board on the issue of labor market attachment. After multiple doctors testified to the claimant’s temporary degree of disability, Christian successfully argued that the claimant could return to light duty work. The Law Judge directed the claimant to produce evidence of work search, and Christian duly requested to cross-examine the claimant on these alleged efforts.

At trial, the claimant admitted that he sought employment for positions that required heavy manual labor. The Law Judge rejected arguments that the work search was not made in good faith, as the job duties were in excess of the claimant’s adjudicated disability. However, Christian appealed to the Board Panel. The resulting Decision overturned the Law Judge, confirming our client’s right to suspend benefits.

Specifically, the Board Panel found that the claimant “made a cursory effort to seek employment.” The Panel also noted that the record “contain[ed] no evidence that the jobs the claimant sought were within his restrictions.” Therefore, this claimant was not entitled to any awards after being found fit to return to work in a light duty capacity.

Decision Date: April 3, 2019
Court: Jamaica Workers’ Compensation Court
Case: JS v. ECM