Category Archives: New York

Scheduled Loss of Use “What’s Working Now”: New York Workers’ Compensation Webinar

Join Us for This Live Webinar on Monday October 19, 2020 at 12PM EST or 3PM EST

In this LIVE webinar on Monday, October 19, 2020 at 12 PM EST, Greg Lois leads a discussion and answers questions on Schedule Loss of Use awards in New York. We will focus on the recent case law and practical advice on how to minimize the employer’s exposure in these types of awards. This webinar is offered at two different times, always on the Third Monday of the month, at 12:00 PM and 3:00 PM EST.

We will discuss:

  • Definition of “Schedule Loss of Use,” including what classes of injuries may qualify for this type of award.
  • Overview of how awards are calculated.
  • Te use of IMEs and Disability Duration Guidelines to challenge excessive SLU awards.
  • Answers to common Schedule Loss of Use questions.

To register for our New York Workers’ Compensation Webinar Series, a monthly discussion offered at your choice of time in two sessions of recent case law developments and best practices for handling civil claims and reimbursement actions, click the buttons below (or register here).

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Appeals Court and WCB Fee Schedule Changes Address Out of State Medical Provider Claims

Appeals Court Rules Against New Jersey Provider Claims

On October 7, 2020, the New Jersey Appellate court issued a decision affecting Medical Provider Claims. The Court ruled that unless the New Jersey’s Division of Workers’ Compensation has jurisdiction over the underlying claim for a compensable work-related injury, it does not have jurisdiction over a Medical Provider Claim for payment. The court also ruled that the injured employee’s residency in New Jersey alone is an insufficient basis to confer jurisdiction on the Division for extraterritorial workplace injuries.

Practical Effect

This decision impacts all Medical Provider Claims filed in New Jersey where the injured worker received medical or surgical treatment in New Jersey related to a New York, Pennsylvania, or any other state’s workers’ compensation law and then the provider made a claim for fee reimbursement at New jersey’s “usual and customary” rate. These types of claims are very common as medical providers in “fee schedule” states like Pennsylvania or New York often instruct their patients to receive medical care in New Jersey so that the provider can charge the insurance carrier under New Jersey’s lucrative “usual and customary” medical fee approach (New Jersey has no medical fee schedule for workers’ compensation claims).

Example: New York Claimant Getting Care in New Jersey. Provider Brings Claim for Reimbursement.

In a common example, the injured worker resides in New Jersey but works in New York. The injured worker is injured in New York. The worker seeks workers compensation benefits, and chooses to have care in New Jersey. The New Jersey medical provider then demands payment for medical services at the “usual and customary rate” in New Jersey, instead of the New York fee schedule. The “usual and customary” demands of the medical provider are routinely 8- to 12-times the costs for the same care under the New York fee schedule. Often, the insurance carrier will reimburse the New Jersey medical provider at the New York Medical Fee Schedule rates (again, usually a small fraction of the demanded payment under New Jersey’s “usual and customary” scheme).  The New Jersey medical provider will then file an action, called a “Application for Medical Provider Reimbursement” (or more commonly a “Medical Provider Claim”) demanding that the difference between what was paid (the New York Fee Schedule amount) and the “usual and customary amount” (often multiples larger) before the New Jersey Division of Workers’ Compensation.

The insurance carrier should file a Motion to Dismiss for Lack of Jurisdiction.  Based on the recent court decision (decided October 7, 2020, and applicable to all pending Medical provider Claims) the Workers’ Compensation Court should dismiss these claim petitions.

What Happens Next: Applying New York’s Fee Schedule

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.

It is clear that Medical provider Claims filed in New Jersey where the Division of Workers’ Compensation does not have jurisdiction over the underlying workplace injury should be dismissed. The medical providers remain entitled to the Fee Schedule payments due under the jurisdictional state’s statutory scheme. 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.

Video: Coverage Disputes in Construction Litigation

In this video, “Coverage Disputes in Construction Litigation,” Tashia Rasul, partner at Lois Law Firm and Construction Defense Team Leader discusses common coverage issues that arise in Owner Controlled Insurance Program (OCIP) and Contractor Controlled Insurance Program (CCIP) projects.

Tashia Rasul leads webinar

Some of the topics Tashia discusses include:

  • What is covered in a wrap-up policy.
  • How to prepare to handle coverage disputes.
  • How coverage issues are handled in court – practical advice..

This video is from a live presentation on October 5, 2020.

How to attend these webinars live and ask questions.

To register for our Construction Litigation Webinar Series, a monthly discussion of recent case law developments and best practices for handling construction accident claims in New York, click the button below (or register here).

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Coverage Disputes: Construction Defense Webinar

Join Us for This Live Webinar on Monday, October 5, 2020 at 12PM EST

In this live webinar, “Coverage Issues in Multijurisdictional Construction Claims,” Tashia Rasul, partner at Lois Law Firm, discusses the challenges in defending catastrophic construction losses when coverage is an issue.

Tashia will discuss the following:

  • Workers’ Compensation coverage issues.
  • Differences between operational policy coverage and wrap up coverage.
  • How and in which venue coverage issues are resolved.

To register for our Construction Litigation Webinar Series, a monthly discussion of recent case law developments and best practices for handling construction accident claims in New York, click the button below (or register here).

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Video: IME vs Records Review In New York

In this video, Attorney Greg Lois explores the methods and tactics to consider when choosing either an Independent Medical Evaluation or records review in New York Workers’ Compensation claims. This video is from a live webinar provided to clients on September 21, 2020.

In this video, Greg talks about what is changing now, such as:

  • The differences between an IME and a records review;
  • How the relevant rules (WCL Section 137 and 12 NYCRR 300.2 impact the decision of record review or IME;
  • The pros and cons of IME versus records review; and
  • Why records reviews may be preferable when defending COVID-19 claims.
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RESULTS: Attorney Bailey Ott Wins at Trial, Affirmed on Appeal

LOIS Attorney Bailey Ott recently secured a favorable Board Panel Decision, which affirmed a trial win in which the claimant had been found to have no disability and no permanency to the neck and back, as well as 0% SLUs for the right arm, right hand, right leg, left foot, and right foot. This case had a very high potential exposure based on the amount of injuries the claimant had sustained, but we were able to secure a finding of no permanent injuries to any of the established sites. This case was established for injuries to the bilateral knees, left hip, neck, back, right elbow, right wrist, right hip, and bilateral ankles.

Claimant’s treating physician submitted a C-4.3 finding the following SLUs: 76% left hip, 60.8% right hip, 47.5% left knee, 20% right knee, 27.5% right hand, 7.5% right elbow. In an attachment, he assessed a 22.5% SLU for the right foot. The doctor then issued an apportionment opinion for the SLUs: for the right hand he apportioned 30% to the 2016 accident and 70% to 2018; for the right elbow he apportioned 40% to 2016 and 60% to 2018; for the right hip he apportioned 40% to the 2012 accident and 60% to 2018; for the left hip he apportioned 60% to the 2012 accident and 40% to 2018; for the right knee he apportioned 20% to 2012 and 80% to 2018; for the right foot he apportioned 45% to 2012 and 55% to 2018. In the claimant’s 2012 claim, the doctor’s C-4.3 assessed a SLU of 60% for each hip and 25% for the right foot. In his C-4.3 from February of 2017, he assessed a SLU of 60% for the left hip, 73% for the right hip and 25% for the right foot. In the 2012 claim, the claimant was awarded SLUs of 55% for the right leg, 12.5% for the left leg, and 12.5% for the right foot. In the 2016 claim, the doctor’s C-4.3 assessed a SLU of 50% for the right shoulder, 12.5% for the right elbow (62.5% total for the right arm), 40% for the left shoulder, and 45% for the right wrist. In the 2016 claim, the claimant was awarded SLUs of 12.5% for the right arm, 7.5% for the right hand, and 7.5% for the left arm. Therefore, we determined an IME cover letter would be necessary to combat these high SLU findings and to attack the treating physician’s credibility, using targeted questions that highlighted discrepancies in the treating physician’s reports.

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