Category Archives: New York

Calculating Average Weekly Wage Under Section 14 of the New York State Workers’ Compensation Law

Attorney Nidhi Shetye joins LOIS.
Attorney Nidhi Shetye joins LOIS.
The claimant’s average weekly wage (“AWW”) lays the foundation for calculating weekly indemnity payments. It is, therefore, imperative to correctly calculate a claimant’s average weekly wage under the (not-so-clear) provisions of the New York Workers’ Compensation Law (“WCL”). Section 14 (4) of the WCL defines the claimant’s AWW as one fifty-second (1/52) of the claimant’s average annual earnings. Put simply, this means, the claimant’s yearly gross income divided by 52, the number of weeks in a year. This raises the question of calculating a claimant’s yearly income.

Section 14 (1) guides in calculating the annual wage for claimants who worked in the same employment at the time of the accident, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury. WCL §14(1). For section 14 (1) to apply, the claimant needs to have had the same job for most of the year preceding his work-related injury, regardless of whether he had the same employer. Id. Once the claimant meets this criterion, his annual earnings are the product of his daily wages and either 260, if he worked 5 days a week, or 300, where the claimant worked six-day weeks. Id. Continue reading Calculating Average Weekly Wage Under Section 14 of the New York State Workers’ Compensation Law

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

Case: Matter of Maloney v Wende Correctional Facility

Issue
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.

Decision
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

Medicare Secondary Payer Set-Asides and Conditional Payments in New York Workers’ Compensation Cases

Attorney Declan Gourley leads a presentation designed to help the attendee answer the following questions: “Can I settle this case?” and “Does Medicare have a current interest I need to consider?” and “Do I need to consider Medicare’s future interest?” Presenter Declan Gourley has years of experience representing claimants before the Social Security law judges and employers and carriers before the Workers’ Compensation Board. At the end of the presentation, the attendees will have a basic understanding of Medicare Secondary Payer exposure and when they need to consider Medicare’s interest in a lump-sum settlement.

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Video: New Schedule Loss of Use Guidelines in New York

LOIS Partner Christian Sison leads a presentation on the new-for-2018 New York Guidelines for Determining Impairment. The new Guidelines replace the prior methods of determining Scheduled Loss of Use for all claims where an impairment report was not submitted before January 1, 2018 and will have an impact on exposure join all future claims. Attorney Sison provides examples including side-by-side exposure analysis of the same impairment under the old and new Guidelines and answers questions live from the webinar audience.

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Training on 2018 New York Impairment Guidelines

2018 Impairment GuidelinesThe Board has adopted New Guidelines for Determining Impairment. These are the same Guidelines which were proposed in November 2017. The new Guidelines replace the prior methods of determining Scheduled Loss of Use for all claims where an impairment report was not submitted before January 1, 2018. For cases where an impairment rating report was submitted before January 1, 2018, the 2012 Guidelines will apply. The new Guidelines are here.

Training on the New Guidelines.

We will be running training on the new Guidelines, led by LOIS partner Christian Sison, on January 8, 2017 in multiple sessions. Register here:
Register for 12PM EST January 8 – New Guidelines Training
Register for 3PM EST January 8 – New Guidelines Training

Both webinars are LIVE and Questions-and-Answer sessions will be held.

New York Workers’ Compensation Board Proposes a “Second Draft” of the 2018 Impairment Guidelines – and these are Not Favorable to Employers and Carriers.

The day before Thanksgiving the Board released new proposed Guidelines – and these are not great for employers. But wait, what about the draft Guidelines that were issued in September and we were so excited for? Those Guidelines, widely viewed as favorable to carrier and employers as they appeared designed to curtail the worst abuses of the current impairment determination guidelines, have been scrapped.

The new proposed Guidelines are here. When you check them out it will be clear that the old “range of motion” system that the Board was supposed to scrap and start over from has returned. The whole point of the April 2017 statutory reform was that the Board had to adopt updated Scheduled Loss of Use guidelines that reflected “medical advances” (i.e., better outcomes for basic injuries) and were supposed to address the fact that employees with minor injuries, with little or no impact on their working ability, were collecting giant SLU awards, often with only a few days of lost time (which goes to show that there really wasn’t any impact on their working ability). Instead, the Board has caved into pressure from union and “pro-worker” groups (read: trial attorneys representing workers and collecting fat fees) and issued new Guidelines that are bad for businesses and carriers.

Why is this a big deal?

The Board must adopt new Guidelines for Determining Impairment in Schedule Loss of Use cases (think fingers, hands, wrists, elbows, shoulders, knees, ankles, feet, toes) which will take effect on January 2, 2018. The first proposed impairment guidelines were a departure from the prior practice before the Board – in a good way! The initial draft was favorable to employers in that the most frustrating and unfair cases – where the claimant loses minimal time from work for a Schedule Loss of Use Injury (meaning, a minor injury) would result in giant Scheduled Loss of Use awards based on range of motion testing. In those cases, where there was neglible (if any) impact on the claimant’s working ability, it is patently unfair that the employer must pay large Schedule Loss of Use awards based on turn of the century medical guidelines that don’t reflect anything more than subjective range of motion tests. These latest draft guidelines bring back that old range of motion system.

What can we do about it?

The proposed Guidelines are now in “comment period.” Comments can be made here. The Board was clearly persuaded by the flood of comments from the unions and trial attorneys – we are recommending that our clients review the “new” Guidelines and make comments urging the Board to adopt the first proposed impairment guideline.

Training on the New Guidelines.

We will be running training on the new Guidelines, in whatever form they take, on January 8, 2017 in multiple sessions. Register here:
Register for 12PM EST January 8 – New Guidelines Training
Register for 3PM EST January 8 – New Guidelines Training

Both webinars are LIVE and Questions-and-Answer sessions will be held.