Category Archives: New York

Investigator kills himself during investigation into his mishandling of evidence – should the death be compensable?

Forensic Investigator Gary Veeder specialized in trace fiber evidence for the New York State Police Forensic Investigation Center. His findings were relied upon by prosecutors and juries in sending people to jail. Unfortunately, a state investigation found that in nearly 1/3rd of all the cases Veeder worked on there were “serious problems” with the evidence provided by Veeder.

A very public scandal erupted following an investigation (“Troopergate” and “Dirty Tricks Scandal”) when it was learned that Veeder

“routinely failed to conduct a required test when examining fiber evidence, then falsely indicated in case records that he had performed the test,”

according to the audit of his practices. It appears that Veeder had no knowledge of the tests he was supposed to be conducting, and could not even properly operate a microscope.

A lot of people may have gone to jail because of Veeder’s fake evidence.

Veeder first retired and then 15 days later committed suicide by hanging himself in his garage.

His widow claimed that his death was caused by work-related stress and filed for workers’ compensation benefits.

Dependency Benefits in New York

Under the New York Workers’ Compensation Law, if a worker dies from a compensable injury, the surviving spouse would be entitled to weekly cash benefits. The amount is equal to two-thirds of the deceased worker’s average weekly wage for the year before the accident. The weekly compensation may not exceed the weekly maximum, despite the number of dependents.

Suicide

Intentional self-injury is not compensable under the New York Workers’ Compensation law. Self-injury or stress related to a negative personnel action (discipline, termination, etc.) is not compensable. However, a line of cases has developed since 1991 finding some suicides compensable. For example, a suicide may be found compensable where:

  • There was a work-related injury which caused insanity, derangement, or mental deterioration;
  • A depressive condition causally related to the employment (presume causal connection between work and mental illness);
  • Work-related stress contributed to a depressive illness (which may have been pre-existent in nature and in which suicidal tendencies were a feature).

See Miller v. Int’l Bro. Of Elec. Workers Local 631, 654 N.Y.S.2d 460 (3d Dep’t 1997).

The widow’s claim was denied, on the basis that the stress was the result of personnel actions, which are excluded from workers’ compensation eligibility.

The case was appealed and the decision to deny benefits was reversed and the case sent back to the Workers’ Compensation Board for reconsideration.

Decision on appeal

The reversal was based upon the fact that at the time of Veeder’s suicide, no personnel actions had been implemented. The Appellate court stated that “the unrefuted psychiatric evidence contained in the record, as well as the suicide letters, make clear that decedent’s suicide was predominantly the product of the depression and stress he experienced from the employer’s inquiry into the inconsistencies in his fiber analysis tests.” The state was investigating the situation; they had uncovered problems in Veeder’s work, but they were on a narrowly defined “fact finding” mission. No action had been taken against Veeder: he was not suspended or demoted or disciplined in any manner. Thus the stress was purely the result of the investigation, not of any personnel action.

In other words, had the employer simply announced to Veeder that the investigation was the initial phase of a disciplinary process, he would probably not have been eligible for workers comp. The only facts that count: he was under enormous work-related stress (of his own making) and he killed himself as a direct result of the work-related situation.

Based on the decision in the appeal, it appears that Veeder’s widow will be eligible for burial and indemnity benefits.

Case: Veeder v. New York State Police, 511128 (N.Y. App. Div decided July 14, 2011).

New York: Applying the “Attachment to the workforce” test to ongoing benefits.

Twice this year the Appellate Division has affirmed the rule that a claimant who is receiving an award for permanent partial disability has an ongoing obligation to show “attachment to the workforce” – that he is actively seeking a job within his restrictions – in order to continue to be eligible for weekly benefits. In both of these cases the Appellate court has instructed that where a claimant fails to seek employment, fails to participate in vocational rehabilitation, and fails to attend to a referral to educational services, the Board’s determination that the separation from the workforce was “voluntary” and therefore on further benefits must be paid by the carrier/employer.

On June 9th, the Appellate Panel ruled that a subsequent medical condition – which left the previously “partially” disabled claimant unable to work in his former industry but still able to do something – extinguished the claimant’s right to benefits.  In that admittedly compensable case, the claimant was collecting a partial permanent disability award for orthopedic injuries to his neck, shoulder, and back (the award was entered pursuant to stipulation). However, the claimant failed to demonstrate search for work within his restrictions.  The claimant also failed to attend to vocational rehabilitation or offered educational services.

The employer argued that benefits should be discontinued as the claimant failed to demonstrate “attachment to the workforce” in the form of a reasonable work search within his restrictions.  For his part, the claimant argued that he had developed a subsequent health condition which made work as a construction laborer impossible.  The Law Judge found that this factor mitigated the claimant’s obligation to show he was seeking work within his restrictions.

On June 9, 2011 the Appellate court overruled the workers’ compensation judge  – ruling that even a subsequent unrelated condition does not abrogate the claimant’s duty to seek work within his restrictions.

Keep this decision by your side!  

Even in a case where the employer has stipulated to the claimant;s ongoing permanent partial disability, benefits can be withdrawn if the claimant fails to seek accommodated work.

Remember: the burden is on the claimant to show a evidence of a  job search within his restrictions.

Case:  Bobbitt v. Peter Charbonneau Constr., 2011 N.Y. Slip Op. 04790 (App. Div. Decided June 9, 2011) andMatter of Hester v Homemakers Upstate Group, 2011 NY Slip Op 02091 [82 AD3d 1461] (App. Div. Decided March 24, 2011).

Does the MTG apply to out-of-state claimants?

Clients have reported to me that when handling claims under the New York Workers’ Compensation Act if the claimant resides out of state they are not applying Medical Treatment Guidelines (“MTG”) to the ongoing treatment.  This means that employers and their insurers are not getting the benefit of the MTG in these cases. (Note: If you are unfamiliar with the Medical Treatment Guidelines that went into effect on December 1, 2010, I recommend you read my earlier posts on these topics:

There is no case law examining this issue in light of the controlling statutory authority and the information published by the WCB is simply nonsensical. Why would an out-of-state claimant be entitled to more or less medical treatment than the in-state claimant?

What the law states.

The strongest authority is the Workers’ Compensation Law (“WCL”) statute itself. Section 13 of the WCL states:
(b) In the case of persons, injured outside of this state, but entitled to compensation or benefits under this chapter, the provisions as to selection of authorized physicians shall be inapplicable. . . All fees and other charges for such treatment and services, whether furnished by the employer or otherwise, shall be subject to regulation by the board as provided in section twenty-four of this chapter, and shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living.” None of the cases that cite to this provision indicate that an out-of-state claimant is entitled to less or more medical care than is required under WCL § 13-a.

That first part about the “selection of authorized physcians” just means that when the claimant is treating out-of-state, the treating physicians do not have to be “coded” or otherwise authorized by the WCB to treat the claimant. Nothing in the statute allows for an out-of-state claimant to get more or less treatment then a worker injured in New York.

What the WCB says.

This is where it gets confusing: I found this on the WCB website in a ‘Frequently Asked Questions’ response under the heading “Out of State” (link):
Question: How do the Medical Treatment Guidelines apply if an injured worker lives or receives treatment outside of New York State?
Answer: If the injured worker either lives or is treated in New York State, the Medical Treatment Guidelines apply. If the injured worker both lives and is treated outside New York State, the Medical Treatment Guidelines do not apply.”

There is also this:
Question: How can a party compel appearance at a deposition of an out of state provider, when a variance is denied by a health care provider?
Answer: First, the variance can only be denied by a carrier. It is submitted by the health care provider. Second, If the out of state provider is treating a claimant that both lives and is treated outside New York State, the Medical Treatment Guidelines do not apply. If the Medical Treatment Guidelines do not apply, then there is no need to request a variance and there will be no need to depose such provider. However, if the out of state provider is treating a claimant who lives in New York State, the Medical Treatment Guidelines apply. In that case the methods used to depose out of state providers for all other issues should be used. A subpoena is not necessary if the provider agrees to a date and time to be deposed.

 
Hmm.  This seems to directly state that an out-of-state claimant is not bound by the MTG.  Remember, answers to “Frequently asked Questions” on the Board’s website is not law or even persuasive authority.
 

The Regulations imply that the MTG applies to out-of-state claimants.

After reviewing the regulations and the MTG, I found only one Regulation that references a claimant who resides out of state in regards to treatment (in this case, IMEs). Here are some references in the Regulations that seem to imply that the Guidelines DO apply to claimants who reside out of state. For example, 12 N.Y.C.R.R. 325-1.4(a)5 states as follows:

In response to requests for authorization for treatment related to an established body part or illness, the self-insured employer or insurance carrier may have the [patient] claimant examined within four business days if the [patient] claimant is hospitalized or [30] thirty days if patient is not hospitalized, by an appropriate [medical board-certified] specialist who is [also] authorized [in such specialty,] by the [chair,] Chair to [treat] conduct independent medical examinations of workers’ compensation claimants. If such specialist is not available or where the claimant resides outside of state, consultation may be rendered by [an authorized physician who is acceptable to both the self-insured employer or insurance carrier and the physician requesting authorization, or in the event the parties cannot agree, a physician may be selected by the chair] a qualified provider who may conduct the independent medical examination as provided in Workers’ Compensation Law Section 137 (3) (a) and section 300.2 (b) (9) and (d) (7) of this Chapter.

This regulation clearly assumes that the Chair has the power to regulate out of state care, and that a patient who resides out of state (and presumably is getting treatment out of state) can still request authorization for treatment to established body parts.
 
The Regulations and the individual Guidelines for each body part certainly do not state that claimants who live out of State are treated any differently than in-state residents.

Of course, if out-of-state claimants with established cases were not subject to the MTG they could continue to direct and control their own medical care as they did in the pre-MTG era. Certainly, this creates a situation where the out-of-state claimant would be able to obtain more medical treatment than a similary-situated in-state claimant, which defies common sense.

Have any questions about this article? Contact Greg Lois.

Rejecting variance requests based on defective MG-2s.

What makes an MG-2 form complete?

The MG-2 variance request form is a multi-page document with plenty of small type. Certain information is essential to the Board’s internal procedures and if that information is missing or incomplete, the Board cannot process the form. In order for the Board to take action on an MG-2 form, the Board requires that the following fields be completed (required items are denoted by the “checklist” symbol ““.

Check the MG-2 – if any the following sections are incomplete or missing – issue a denial and alert the Board as to your reasons!

Required in Section A:

Patient’s name, and
Insurance Carrier’s Name & Address.
Please note that the Insurance Carrier’s or TPA’s name and address must match the information the Board has on file.

Required in Section B:

Individual Provider’s WCB Authorization Number for all providers authorized by the New York State Workers’ Compensation Board

Required in Section C:

Date Variance Request Submitted and Method of Transmission,
Guideline Reference for the body part followed by the 2 to 4 character corresponding reference in the Medical Treatment Guidelines or followed by the four letters N-O-N-E if there is no listed procedure,
Approval Requested For requires a written description of the treatment requested,
Statement of Medical Necessity requires a description directly on the form. If there is a supporting medical report in the Board’s case file, the requesting physician should enter the date of service or if there is no supporting medical report in the case file, attach a medical report and enter “See attached medical report” on the form;
A check box selected for how the carrier was contacted; and
the Provider’s signature or stamp. Please note that initials next to the signature or stamp are not acceptable.

Also remember that physical therapists are not “medical providers” under the the MTG and cannot issue an MG-2 to request authorization for addiitonal physical therapy visits beyond the Guidelines – only a doctor can issue the MG-2 to request addiitonal PT. Issue a summary denial to any variance request issued by a physical therapist.