“Friday Frequently Asked Questions” is a series of articles by Tashia Rasul answering common questions about various topics in New York workers’ compensation. Tashia is a partner at Lois LLC where she defends employers in New York workers’ compensation matters. She frequently visits construction and other work sites to develop defense strategies. Tashia routinely handles complex cases involving occupational injuries, pulmonary diseases and catastrophic injuries. Tashia also works on Longshore workers’ compensation claims.
Many C-8.1s are resolved in favor of the providers because they are defective, meaning the C-8.1s are not properly completed or timely filed.
Part A Defenses.
The C-8.1 form is divided into two Parts: A and B. Part A requires the carrier to specify the legal reason for its objection to treatment, and to provide information on its conflicting medical evidence, that is, an IME or Peer Review Report. If treatment is being objected to, the carrier must notify the claimant, provider and Board within five days of the objection (e.g. denial of a C-4AUTH request). If the carrier is asserting that the basis for the objection is conflicting medical evidence, such evidence must be supplied with the C-8.1, or if already in the Board file, identified using the Board document identification number. Further, the carrier must provide proof of mailing of notice to the claimant, his attorney and his doctor. See NYCRR 300.23(d). Continue reading Friday F.A.Q. “Why are so many C-8.1s being resolved in favor of the providers even when there is a legitimate reason to deny the treatment or bill?”→
While the Medical Treatment Guidelines (MTG) governing the treatment of non-acute pain allows for the use of opioids only in certain circumstances, we are still seeing an abundance of claims where the prescribing doctor fails to comply with the stringent requirements of the MTG. In October, 2016, the Board announced a new procedure that allows employers to have the issue addressed by the Board in an effective manner. Continue reading Friday F.A.Q. “What can be done to address opioid overuse or abuse by claimants?”→
The 2007 New York Workers’ Compensation Law reforms capped the number of weeks of compensation a claimant can receive for a permanent partial disability (PPD). However, the 2017 reforms now allows claimants who are classified with higher than a 75% LWEC the opportunity to seek redetermination due to “extreme hardship”. This means that a claimant with a 76% or higher LWEC can request that the Board reclassify him and allow more benefits – potentially benefits for life – thereby creating more exposure for the employer. What qualifies as an “extreme hardship”? Continue reading Friday F.A.Q. “What does the ‘Extreme Hardship Redetermination’ of an LWEC classification mean for an employer’s exposure?”→
Employees are entitled to workers’ compensation benefits, while independent contractors are not.
An employer would concede a claimants’ employment status when he is clearly an employee, but there are times when an employer would hold out that a claimant is an independent contractor. In these situations, workers’ compensation benefits are denied, and the Court would be tasked with making a determination of whether the claimant is an employee or an independent contractor.
In New York, there is a distinction between a general employer and a special employer for the purpose of liability in a workers’ compensation claim. The general employer is the one who hires and pays the employee and the special employer is the one for whom work is done. The classic general and special employer situation is a staffing agency that provides workers to another entity.
The issue of general and special employment is not automatically addressed by a Law Judge. It can be used as a defense to liability, or even raised by the claimant in situations where he knows his employer does not have workers’ compensation coverage. The issue must be litigated, and this means the production of lay witnesses, contractual documents, job descriptions, and workers compensation policies, if applicable. Continue reading Friday F.A.Q.: “What is general and special employment?”→
An employer or insurance carrier must issue payment of an award within 10 calendar days of the filing of the decision directing the awards. This timeframe applies to all types of decisions directing awards. These include a Notice of Decision from a hearing, Reserved Decision, Proposed Decision (when it becomes final), Notice of Section 32 Approval, Notice of Stipulated Decision, and a Board Panel Decision.
If the payment is not made within the required timeframe, the employer or carrier will be subject to a penalty, which equals 20% of the unpaid award, plus $50.00. The 20% penalty is paid to claimant or his dependents, and the $50.00 is paid to the state treasury. This is directed by NY WCL §25-3(f).