All posts by Greg Lois

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com

Medical Treatment Guidelines Apply to Out of State Claimants

In a Board Panel Decision dated May 24, 2017, the Board found that the Medical Treatment Guidelines apply to the out of state treatment of a claimant residing outside of New York State. The decision in In Re Hospice is important because it reverses the Board’s previous statements that out-of-state treatment was immune from the application of the restrictive Medical Treatment Guidelines (“MTG”). This meant that New York claimants merely had to “cross the river” into New Jersey or any other state and obtain medical treatment and medications which far exceeded the treatment or medications allowed under the Medical Treatment Guidelines, needlessly increasing the costs in their cases. Now employers and carriers have a Board Panel decision supporting the argument that law judges should apply the MTG’s to out of state cases. Continue reading Medical Treatment Guidelines Apply to Out of State Claimants

How to: Reducing Exposure by Offering Accommodated Positions in New York

We can stop paying temporary disability benefits in New York when:

  • The claimant has reached “maximum medical improvement” and is discharged from further care.
  • The claimant has voluntarily withdrawn from the labor market.
  • The claimant has refused a light duty offer that complies with the treating doctor’s work restrictions.

​Why seek a return to work in a light duty capacity?

Employees who do not return to work (transitional or otherwise) within 6 months of the date of loss have a less than 50% chance of returning to gainful employment. Injured workers who remain out of work for more than one year but less than two years have a 25% chance of returning to employment. Workers who have lost two or more years to injury have less than a 1% chance of returning to any type of employment. This drives up claims costs and is bad for the injured worker.

The Workers’ Compensation Board envisions a process in which an employer “creates” a light duty job tailored to each injured worker. In reality, most employers have a limited amount of potential light duty employment. In those cases, the goal of the claims professional is to get a clear statement of the claimant’s work ability from the treating physician and then to issue an appropriate offer letter to the claimant. Continue reading How to: Reducing Exposure by Offering Accommodated Positions in New York

Explainer: Permanency Benefits in New York

The New York Workers’ Compensation Law allows for four types of benefits to be provided to injured workers: medical treatment, lost time wage replacement, death benefits, and permanent disability benefits. This article discusses the three types of permanent disability benefit available to the injured worker:

  • Scheduled loss of use.
  • Classification/LWEC
  • Permanent Total Disability.

The employer is exposed for permanent disabilities which the claimant may prove. These three types of disability are compensated at different rates.

Scheduled Loss of Use.

Values come from tables which establish the compensation for loss of limbs, vision, and hearing in terms of ‘weeks of compensation.’ Scheduled loss is the percent of those weeks equal to the percentage loss of function of the member (for example a 10% schedule use loss of the arm equates to 31.2 weeks of compensation. The award is the number of weeks of compensation according to the schedule multiplied buy the workers’ maximum rate (2/3rd of Average Weekly Wages subject to the maximum and minimum rates in place according to the year of the accident). Prior payments of compensation and wages (all wages, not just those paid at the compensation rate) are deducted from the award. Continue reading Explainer: Permanency Benefits in New York

Settlements in New Jersey: What gets deducted?

What does the petitioner have to pay back when a settlement is reached in a New Jersey workers’ compensation case?

Has to be paid back: State Disability

Any petitioner’s award is offset by any amounts paid to the petitioner by State Disability as provided by N.J.S.A. 34:15-57.1. Temporary disability paid by the state for injuries later deemed compensable or settled via Section 20 must be reimbursed to the state. Before settling a case, counsel should be expected to investigate all outstanding liens. The New Jersey workers’ compensation law judge can provide the parties with the amount of the State temporary disability lien at the time of settlement.

Has to be paid back: Health Insurance

By the very terms of the Act, workers’ compensation insurance is primary to medical insurance. Therefore, any amounts paid on behalf of the petitioner for treatment deemed by a judge “reasonable and necessary” to cure the petitioner of the effects of the work-related accident, can be collected by the health insurer at the time of settlement, or later. Recent case law instructs that even matters disposed of pursuant to Section 20 may not extinguish a health insurer’s lien. Continue reading Settlements in New Jersey: What gets deducted?

Explainer: Appeals of New Jersey Workers’ Compensation Decisions

Decisions of a Workers’ Compensation Judge are appealable directly to the New Jersey Appellate Court. An appeal of the Workers’ Compensation Judge’s opinion must be made within 45 days of the entry of the final order. How does the appeals court rule where there was a disagreement between the doctors who testified in the workers’ compensation case?

The Scope of Review.

The scope of review by the Appellate Division is “the same as that on appeal in any non-jury case, that is, whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.” Close v. Kordulak Bros., 44 N.J. 589, 599 (1965), quoting State v. Johnson, 42 N.J. 146, 162 (1964).

Thus, the findings of fact made by a judge of compensation “are entitled to substantial deference.” Ramos v. M & F Fashions, Inc., 154 N.J. 583, 294 (1998). But how does the appeals court review cases where there was a significant split – a disagreement – between the doctors who testified in the workers’ compensation case? How does the Appellate Division review a case where the Trial Judge agrees with one side’s doctors over the other? Continue reading Explainer: Appeals of New Jersey Workers’ Compensation Decisions

Explainer: Wage Replacement Benefits in New York

This articles provides a basic overview of the wage replacement benefit – temporary disability – in New York workers’ compensation claims. A workers’ compensation claimant is entitled to medical care and wage replacement. If the worker is killed by the accident, his dependents may be eligible for death benefits.

As set forth more completely in my book, when an employee sustains are injury medical benefits must be provided immediately. WCL § 13. There is no waiting period before medical benefits must be provided. Wage replacement (as discussed below) has a waiting period before benefits must be provided. WCL § 12.

​Wage Compensation: Cash Benefits.

Cash benefits are not paid for the first seven days of the disability, unless it extends beyond fourteen days. In that case, the worker may receive cash benefits from the first work day off the job. Continue reading Explainer: Wage Replacement Benefits in New York