Category Archives: New York

Video: Law Change in New York to Provide Employer Credit

Attorney Greg Lois leads a presentation on the changing workers’ compensation law in New York which will provide a credit to carriers and employers for temporary disability benefits issued against permanency benefits in certain cases. This video is from a live presentation on October 9, 2019.

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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 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.

Apply Apportionment to Reduce Exposure in New York

Apportionment is allowed under the Workers’ Compensation Law Section 44 to ensure that compensation is proportionally awarded to the amount of causal contribution made by the employer. This is intended to prevent windfalls to employers and can be applied to both permanent partial disability awards (“PPD”) or loss of use (Scheduled Loss of Use awards). In general, and despite the clear statutory authority, it remains challenging to secure apportionment to non work-related disability except for scheduled loss of use.

For the defense, apportionment should be considered where it can result in a lower wage (and lower benefit rate), where a statute of limitation defense becomes available, and where this is sucessive or prior coverage to which liability can be ascribed.

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