DEFINITIONS

Employer

"Employer," except when otherwise expressly stated, means a person, partnership, association, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation, having one or more persons in employment, including the state, a municipal corporation, fire district or other political subdivision of the state, and every authority or commission heretofore or hereafter continued or created by the public authorities law.

Private Insurance Carrier:

Private insurance carriers collect premiums from employers to pay for the claims and related medical expenses of employees who are injured on the job. Over 200 private insurance carriers are currently authorized by the Insurance Department to provide workers’ compensation insurance to employers.

State Insurance Fund:

The New York State Insurance Fund (SIF) is a not-for-profit agency of the State of New York that was established pursuant to the WCL in 1914 to provide a guaranteed source of workers’ compensation insurance coverage at the lowest possible cost to employers within New York State (WCL §76 - 100). Just like any insurance carrier, SIF collects premiums from employers to pay for the claims and related medical expenses of employees who are injured on the job. SIF must provide insurance to any employer seeking coverage, regardless of the employer’s type of business, safety record or size. However, if an employer owes SIF money from a previous bill or account, SIF may deny coverage. SIF is a totally separate and distinct entity from the New York State Workers’ Compensation Board.

Employee

Under the Workers’ Compensation Law, most individuals providing services to a for-profit business will be deemed an employee of that business and therefore must be covered by the employer for workers’ compensation insurance. This applies unless those services are specifically excluded as employment under the WCL. For workers’ compensation insurance purposes, the term employee generally includes day labor, leased employees, borrowed employees, part-time employees, unpaid volunteers (including family members) and most subcontractors. There are specific exclusions that will identify an individual as an independent contractor.

Borrowed Employee

A business may not "borrow" employees from another business without each business having New York State workers' compensation and disability benefits insurance coverage in its own legal name. The only exception is when a business obtains all of its employees from a Temporary Service Agency (TSA). When a TSA has a full New York State workers’ compensation insurance policy and directly pays individuals, provides their direction and control, maintains the ability to hire and fire them and satisfies other factors as defined by case law in determining an employer/employee relationship, the TSA is generally considered the primary employer under the Workers’ Compensation Law. (A Temporary Service Agency is a business that is classified as a temporary service agency under the business’s North American Industrial Classification System (NAICS) code.) Further, any business that is not a temporary service agency cannot lend its employees to another business without each business having a workers’ compensation insurance policy in its own legal name. Accordingly, even “parent” corporations that lend employees to “subsidiary” corporations that the “parent” corporation fully owns must have a workers’ compensation policy that lists all the legal entities using employees and must be able to provide proof of workers; compensation coverage for each of the legal entities using employees under their specific Federal Employer Identification Number (FEIN).

Independent Contractor

In determining whether an individual should be considered an independent contractor or an employee, a worker’s compensation judge will review the following factors:

a.       Control the time and manner in which the work is to be done;
b.       Obtain a Federal Employer Identification Number from the Federal Internal Revenue Service (IRS) or have filed business or self-employment income tax returns with the IRS based on work or service performed the previous calendar year;
c.       Maintain a separate business establishment from the hiring business;
d.       Perform work that is different than the primary work of the hiring business and perform work for other businesses;
e.       Operate under a specific contract, and is responsible for satisfactory performance of work and is subject to profit or loss in performing the specific work under such contract, and be in a position to succeed or fail if the business’s expenses exceed income;
f.       Obtain a liability insurance policy (and if appropriate, workers’ compensation and disability benefits insurance policies) under its own legal business name and federal employer identification number;
g.       Have recurring business liabilities and obligations;
h.       If it has business cards or advertises, the materials must publicize itself, not another entity;
i.       Provide all equipment and materials necessary to fulfill the contract; and the individual works under his/her own operating permit, contract or authority.

EXCLUSIVE REMEDY

General Rule

Every employer subject to this chapter shall in accordance with this chapter, except as otherwise provided in section twenty-five-a, secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment without regard to fault as a cause of the injury, except that there shall be no liability for compensation under this chapter when the injury has been solely occasioned by intoxication from alcohol or a controlled substance of the injured employee while on duty; or by willful intention of the injured employee to bring about the injury or death of himself or another; or where the injury was sustained in or caused by voluntary participation in an off-duty athletic activity not constituting part of the employee's work related duties unless the employer (a) requires the employee to participate in such activity, (b) compensates the employee for participating in such activity or (c) otherwise sponsors the activity.

The liability of an employer prescribed above shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom, except that if an employer fails to secure the payment of compensation for his or her injured employees and their dependents as provided in section fifty of this chapter, an injured employee, or his or her legal representative in case of death results from the injury, may, at his or her option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury; and in such an action it shall not be necessary to plead or prove freedom from contributory negligence nor may the defendant plead as a defense that the injury was caused by the negligence of a fellow servant nor that the employee assumed the risk of his or her employment, nor that the injury was due to the contributory negligence of the employee.

No Exception Recognized:

In New York, there are a few narrow exceptions in which an injured worker may bring an outside lawsuit regarding injuries sustained while performed a covered act:

a.       Workers' compensation does not prevent the injured employee from suing his or her employer for damages in court if the employer intentionally harmed the employee.
b.       In New York, a claimant may sue his or her employer if it interferes with the employee's workers' compensation rights, or deprives him or her of workers' compensation benefits. In addition, a complaint may be filed with the Workers' Compensation Board (WCB) if an employer terminates or otherwise discriminates against an employee for either pursuing a workers' compensation claim or for giving testimony in any workers' compensation proceeding.
c.       When an employer is required by law to carry workers' compensation coverage, but fails to do so and an employee is injured, diseased or killed in a work-related incident, New York law allows the worker either to claim his or her workers' compensation award, or to bring a lawsuit directly against the uninsured employer.
d.       Under New York law, workers' compensation is still the exclusive remedy in a situation where a co-employee may have negligently caused harm to another worker. But if a person deliberately harms a co-worker, he or she may sue the aggressor directly in court for the damage inflicted, including for pain and suffering, which is not available through workers' compensation. If the injured worker wins the lawsuit, the employer or its insurer may be eligible for reimbursement for workers' compensation already paid for the injury.
e.       If a third party is responsible through negligence or intentional action for work-related harm, the injured employee can usually bring a lawsuit against that third party. For example, if a piece of equipment used in the workplace is defectively designed and the defect causes a worker injury, the worker may be able to sue the manufacturer, distributor and seller of the faulty equipment under a product-liability theory.
f.       Again, if the injured worker brings a successful suit against a third party, the employer or its insurer may have a lien against the judgment for the amount of workers' compensation already paid to the worker for the same injury.

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

The Workers’ Compensation Board (Board), administers the New York State Workers’ Compensation Law (WCL). It is responsible for the adjudication of claims and ensuring that employers provide the required coverage to their employees. The Board receives and processes claims and initially seeks to facilitate expedient agreements between injured workers and employers. When a consensus cannot be reached through administrative measures, it becomes necessary for the Board to conduct hearings before a Workers’ Compensation Law Judge (Judge). While the decisions by Judges are binding, parties may seek administrative review of the Judge’s decision to the Administrative Review Division. In such a case, a panel of three Board Commissioners will rule on the validity of the Judge’s decision. Failing a unanimous decision by the panel, a mandatory full Board review by all thirteen Commissioners may be requested within 30 days of the filing date of the Board panel’s decision. In addition, when the decision of the panel is unanimous, a party may seek discretionary full Board review. When a party files a discretionary full Board application, the Board has the option to grant or deny full Board review. The decision of the full Board may be further appealed to the State Appellate Division, Third Department (WCL §23).

Generally, a New York State workers’ compensation policy covers all of a firm’s employees who are located within New York State. That policy also covers employees that have incidental travel and temporary work assignments outside of New York State for New York workers’ compensation insurance benefits if those employees are injured outside of New York State. In some cases an employee whose work site is located outside the state but whose employer’s office is located in New York State may be entitled to collect workers’ compensation benefits in New York State. The Board may determine that the claim is subject to New York workers’ compensation benefits if the employer directs and controls the out of state employees’ work activities from the New York office, or the employer issues paychecks from the New York office. Due to every state and nation having different thresholds as to when an outside company working in their jurisdiction needs their specific coverage, New York employers working outside of New York State, even temporarily, should check for the local workers’ compensation requirements in each state or nation where the employer is conducting business.

Extraterritorial Jurisdiction

Generally, a NY employee working outside of New York State (NYS) but who is under the direction and control of a NY employer will be eligible for benefits under the NYS Workers' Compensation Law. There is no statutory time limit on these benefits. However, that worker could choose to forgo NY benefits and file for benefits in the state that they are working in. The following sections list the requirements for companies regarding the coverage required based on a number of different scenarios.

a.       Out-of-state Employers with Employees JUST LIVING in New York State:
i.       Many businesses whose only locations are outside New York State have employees working for them who live in New York State. These employees, who are NY residents, commute to work to their employer’s out-of-state business locations. Out-of-state employers having employees that just live in New York State and commute to work at a company location outside New York State are not required to carry New York State workers’ compensation insurance as long as those employees living in New York do not do any work for their employer’s business in New York State. To be exempt, the employees just living in New York State must also not receive any direction and control in their homes from their out-of –state employer.
b.       Employers with Employees WORKING in New York State:
i.       As part of the 2007 Workers’ Compensation Reform Legislation, Workers’ Compensation Law Section 50(2) was amended to state that when compensation is secured via a stock corporation, mutual corporation or reciprocal insurer authorized to transact the business of workers' compensation insurance in this state, that such coverage be obtained “through a policy issued under the law of this state.” On July 12, 2007, Subject Number 046-198 was issued stating that “effective September 9, 2007, all out-of-state employers with employees working in New York State will be required to carry a full statutory New York State workers’ compensation insurance policy.” A full, statutory NYS workers’ compensation insurance policy is one where New York is listed in item 3A on the Information Page of an employer’s workers’ compensation insurance policy. Thereafter, in September 2007, the Board posted on its website notice that the Board was reviewing the applicability of this provision to out-of-state employers whose employees are attending meetings, seminars, or other minimal activities in New York State. The Board has concluded its review of this matter and now issues the following Out-of-State Employers policy. Insurance carriers, agents, and brokers, as well as out-of-state employers, should carefully review this policy.
c.       Full NY Workers’ Compensation Coverage Required:
i.       An out-of-state employer with an individual or individuals working in New York State is required to have a full NYS workers’ compensation insurance policy if that employer (as defined in the WCL) meets ANY of the following criteria:
1.       The employer is required to register with the NYS Department of Labor and pay Unemployment Insurance for any period in question.
2.       The employer has a permanent physical location in New York or has employees whose primary work location is here.
3.       The employer is operating in New York under a permit, contract, or license granted by the State of New York, its counties or any municipality as defined under §57 of the Workers’ Compensation Law.
4.       The employer is working as a contractor/general contractor/subcontractor on a construction project in New York.
5.       In the previous year, the employer had employees physically in New York for:
a.       at least 40 hours of every week for a period of longer than 2 consecutive weeks; or
b.       25 or more individual days (e.g.- 5 employees working for 5 days in New York equals 25 individual employee days)
c.       Employees traveling through the State not stopping for deliveries, pick-ups, or other work are not deemed to have worked a day here.
d.       An employer that has reason to know that it will meet these criteria in the current year, even if it has not done so in the prior year, must obtain the required coverage. If an out-of-state employer with an individual or individuals working in New York State meets any of the above requirements, NY MUST be listed on Item 3A on the Information Page of an employer’s workers’ compensation insurance policy. This means that the employer is fully covered under the NY Workers’ Compensation Law.
d.       Full NY Workers’ Compensation Coverage NOT Required, 3C Coverage Acceptable
i.       When out-of-state employers send employees into New York for work purposes and a full, statutory NYS workers’ compensation insurance policy is not required, the employer must have such coverage for workers’ compensation as required under the laws of its state, and New York must be listed in item 3C on the Information Page of the employer’s workers’ compensation insurance policy. If the insurance carrier writing the out-of-state employer’s workers’ compensation insurance policy is not authorized by the NYS Insurance Department to write workers’ compensation and employers’ liability coverage in New York, for the 3C coverage to comply with this policy, the insurance carrier must have completed, signed, and filed the Statement of Compliance With Workers’ Compensation Law with the Chair, Form C-105.11.
ii.       An out-of-state employer having a new worker's compensation insurance policy issued after February 1, 2011 by a private insurance carrier not licensed in New York and listing New York under 3C of that policy will not qualify for the specific exemptions set forth in the Out-of-State Employers Policy statement unless the carrier completes, signs, and files the Statement of Compliance With Workers’ Compensation Law with the Chair, Form C-105.11.

e.       Questions regarding Jurisdiction:
i.       The Board will post on its website a list of all carriers that have filed the Statement of Compliance with Workers’ Compensation Law, and will provide periodic updates to such listing. It may be appropriate to contact your insurance broker, carrier or agent, check with your trade association, or conduct additional research to find the most appropriate insurance coverage for your company. In addition, a New York State workers’ compensation policy may be obtained from the New York State Insurance Fund by calling 1-888-875-5790 and a disability benefits insurance policy may be obtained from the New York State Insurance Fund by calling 1-866-697-4332. Please contact the Board’s Bureau of Compliance at 1-866-298-7830 if you have any questions regarding these requirements.

Time Limitation

Discovery Rule

The employee should immediately tell his or her employer or supervisor when, where and how they were injured and obtain medical treatment. The treating health care provider must be authorized by the Workers’ Compensation Board, except in an emergency situation.

i.       The employee should submit written notice within 30 days to his or her employer. (WCL §18).
ii.       Within 48 hours of the first medical treatment: The doctor completes a preliminary medical report on Form C-4 and mails it to the appropriate District Office. Copies must also be sent to the employer or its insurance carrier, the injured worker, and his/her representative, if any (WCL §13-a [4][a]).
iii.       Within 10 days of the occurrence of the accident: The employer, or its third party designee, reports the injury to the Board and the insurance company on WCL §110 [2].
iv.       Within 14 days of receipt of Form C-2: The insurer provides the injured worker with a written statement of his/her rights under the law (Form C-430). This must be done within 14 days after receipt of the C-2 from the employer or with the first check, whichever is earlier WCL §110 [2]). If the insurer requires the injured worker to use a provider within a network for diagnostic tests it must provide the injured worker with the name and contact information from the network (WCL §13-a[7][b]).
v.       Within 15 days of initial treatment: The doctor completes a 15-day report of the injury and treatment on Form C-4 and mails it to the District Office (WCL §13-a[4][a]).
vi.       Within 18 days after the first day of disability or 10 days after the employer first has knowledge of the alleged accident, or within 10 days after the carrier receives the Form C-2, whichever is greater. The insurer begins the payment of benefits if lost time exceeds seven days. If the claim is being disputed, the insurer must inform the Workers’ Compensation Board (and the claimant and his/her representative, if any) by filing Form C-7. If the claim is not disputed, but payment is not being made for specific reasons stated on the notice, (e.g. that there is no lost time or that the duration of the disability is less than the 7-day waiting period), the insurer must also notify all the parties (WCL §25 [1] and 12 NYCRR §300.22).
vii.       Within 25 days of the notice of indexing: When the Board notifies an employer or its insurance carrier that a workers’ compensation case has been indexed against the employer, and the employer or insurance carrier decides to controvert the claim, a notice of controversy (Form C-7) shall be filed with the Board within 25 days from the date of mailing of the notice of indexing. Failure to file the notice of controversy within the prescribed 25 day time limit could bar the employer and its carrier from pleading certain defenses to the claim (WCL §25[2][b]). If the right to compensation is not controverted but payment has not begun because no compensation is presently due, prescribed Form C-669 shall be filed with the Board not later than 25 days after the Board has transmitted a notice of indexing a case to the employer or its insurance carrier.

Notice of Injury

Notice of an injury or death for which compensation is payable under this chapter shall be given to the employer within thirty days after the accident causing such injury, and also in case of the death of the employee resulting from such injury, within thirty days after such death. Such notice may be given by any person claiming to be entitled to compensation, or by someone on his behalf. The notice shall be in writing, and contain the name and address of the employee, and state in ordinary language the time, place, nature and cause of the injury, and be signed by him or by a person on his behalf or, in case of death, by any one or more of his dependents, or by a person, on their behalf. It shall be given to the employer by delivering it to him or sending it by mail, by registered letter, addressed to the employer at his or its last known place of business; provided that, if the employer be a partnership then such notice may be so given to any one of the partners, and if the employer be a corporation, then such notice may be given to any agent or officer thereof upon whom legal process may be served, or any agent in charge of his business in the place where the injury occurred. The failure to give notice of injury or notice of death unless excused by the board either on the ground that notice for some sufficient reason could not have been given, or on the ground that the employer, or his or its agents in charge of the business in the place where the accident occurred or having immediate supervision of the employee to whom the accident happened, had knowledge of the accident or death, or on the ground that the employer has not been prejudiced thereby, shall be a bar to any claim under this chapter, but the employer and the insurance carrier shall be deemed to have waived such notice unless the objection to the failure to give such notice or the insufficiency thereof, is raised before the board on the first hearing of the claim field by such injured employee, or his or her dependents at which all parties in interest are present, or represented, and at which the claimant, or principal beneficiary, testifies.

Statute of Limitations

Special Rules for Death Claims

See Section regarding Notice of Injury

Occupational Disease Death Claims

See Section Regarding Notice of Injury

Occupational Disease Claims

An occupational disease arises from the conditions to which a specific type of worker is exposed. The disease must be produced as a natural incident of a particular occupation, such as asbestosis from asbestos removal. A person disabled by a work-related occupational disease receives the same benefits as for an on-the job injury. However, the time limit for filing a claim is the later of two dates: two years from the date of the disabled worker’s disability; or two years from the time the disabled worker knew or should have known that the disease was due to the nature of employment. When a worker becomes ill from an occupational disease, he/she may be disabled even if there is no lost time from work. For purposes of determining the employee’s right to benefits, the date of disablement is determined by a Workers’ Compensation Law Judge.

COMPENSABILITY

General Rule

Workers' compensation is insurance that provides cash benefits and/or medical care for workers who are injured or become ill as a direct result of their job. Employers pay for this insurance, and shall not require the employee to contribute to the cost of compensation. Weekly cash benefits and medical care are paid by the employer's insurance carrier, as directed by the Workers' Compensation Board. The Workers' Compensation Board is a state agency that processes the claims. If Board intervention is necessary, it will determine whether that insurer will reimburse for cash benefits and/or medical care, and the amounts payable. In a workers' compensation case, no one party is determined to be at fault. The amount that a claimant receives is not decreased by his/her carelessness, nor increased by an employer's fault. However, a worker loses his/her right to workers' compensation if the injury results solely from his or her intoxication from drugs or alcohol, or from the intent to injure him/herself or someone else. A claim is paid if the employer or insurance carrier agrees that the injury or illness is work-related. If the employer or insurance carrier disputes the claim, no cash benefits are paid until the workers' compensation law judge decides who is right.

“Injury”Defined

New York has held that while a compensable accidental injury may either result from a single catastrophic event or develop gradually over a reasonably definite period of time, it must be demonstrated that a specific aspect of the claimant's workplace was a contributing factor in bringing about the injury" (Matter of Newton v Sears Roebuck & Co., 293 AD2d 862 [2002]. Also, to establish that the accidental injury developed gradually, rather than suddenly, the claimant must "demonstrate by competent medical evidence that [it] resulted from '"unusual environmental conditions or events assignable to something extraordinary"' at his workplace" (Matter of Mazayoff v A.C.V.L.)

Types of Injuries

Accident Not Required

As the technology of today's workplace changes, so do the types of injury that can occur. Reports of cumulative trauma disorders (CTDs), such as carpal tunnel syndrome, are increasingly more common. These are also known as occupational diseases and are recoverable under Workers Compensation law. CTDs can occur in a wide range of occupations and fields, including aerospace, agriculture, automotive, clerical, electronics, fabric cutting, food processing, plastics molding, and the performing arts. According to the American Industrial Hygiene Association, CTDs are a family of muscle, tendon and nerve disorders that are caused, accelerated, or aggravated by repeated movements of the body, particularly when awkward postures, high forces, contact stresses, vibration or cold are also present.

Infectious Diseases

Herpes simplex, autoimmune deficiency syndrome, infectious and viral hepatitis are the most common infectious diseases seen as work related. Such cases often seen among health care providers and ancillary workers. There is usually a history of exposure. It is important to review medical records, hospitalization and diagnostic tests (i.e., blood studies). If needed, request an infectious disease consultant opinion. The examining physician must consider the period of time which has elapsed since the claimant's exposure as well as the severity of the condition.

Heart

In New York, heart conditions can be found to be compensable. In Matter of Losso v Tesco Traffic Servs. 248 AD2d 812 (1998), the claimant's decedent had an established injury involving a heart attack that occurred in 1985. Subsequently, the decedent required angioplasties and powerful cardiac medications to treat the damage that had been caused by the heart attack. In Losso, the Board's decision to award death benefits was affirmed based on the medical evidence in the record that "indicated that decedent's demise was causally related, in part, to the residual effects of the myocardial infarction and his resulting weakened cardiovascular system". However, the Court also noted the medical evidence in the record that "indicated that decedent's heart condition limited the drug therapy that could be employed to fight the cancer and…probably hastened his death as a result (see Matter of Cramer v BASF Wyandotte Corp., 191 AD2d 831 [1993])" (Losso, 248 AD2d 812 [1998]).

Psychological Injury

In New York, an individual is able to recover for a psychological injury, however, the "claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence", Matter of Williams v Colgate Univ., 54 AD3d 1121 (2008). In one case, a claimant suffered from severe depression for several years preceding his work accident. While the claimant's physician found that his psychological conditions were in remission at the point of his accident. The record therefore supported the Board Panel's determination that the claimant's depression was not consequential to his work accident. A claimant must demonstrate that his or her reduced earning capacity is due to the disability, not factors unrelated to the disability' (Burns, 9 NY3d at 216).

Occupational Diseases

An occupational disease arises from the conditions to which a specific type of worker is exposed. The disease must be produced as a natural incident of a particular occupation, such as asbestosis from asbestos removal. A person disabled by a work-related occupational disease receives the same benefits as for an on-the job injury. However, the time limit for filing a claim is the later of two dates: 1) Two years from the date of the disabled worker's disability; or 2) Two years from the time the disabled worker knew or should have known that the disease was due to the nature of employment. In the case of death, the dependents must file within the stated time limits. When a worker becomes ill from an occupational disease, he/she may be disabled even if there is no lost time from work. For purposes of determining the employee's right to benefits, the date of disablement is determined by a Workers' Compensation Law Judge.

EXCLUSIONS AND DEFENSES

Course of Employment

To be compensable under the Workers' Compensation Law, an accidental injury must have arisen both out of and in the course of employment, Matter of Thompson v New York Tel. Co., 114 AD2d 639 (1985); see Workers' Compensation Law § 10. Accidents arising 'in the course of' employment are presumed to arise 'out of' such employment, and this presumption can only be rebutted by substantial evidence to the contrary. Workers' Compensation Law § 21; Matter of Van Horn v Red Hook Cent.

The course of employment is not limited to the exact time when an employee commences his duties. Rather, it encompasses a reasonable amount of time for the employee to enter his place of employment prior to the beginning of his shift (Matter of Babkees v Electrolux Corp., 4 AD2d 710, lv denied, 3 NY2d 708; Matter of Leatham v Thurston & Braidich, 264 App Div 449,affd 289 NY 804)" (Matter of Torio v Fisher Body Div.-General Motors Corp., 119 AD2d 955 [1986]). Furthermore, if an accident occurred on an employer's premises, the Board can reasonably infer that the resulting injuries occurred in the course of employment (Matter of Husted v Seneca Steel Serv., Inc., 50 AD2d 76 [1975], aff'd 41 NY2d 140 [1976], citing Matter of Ott v Gem Elec. Mfg. Co., 44 AD2d 331 [1974]).

Engaged in the Furtherance of Employer’s Business

In New York, inquiries regarding whether or not an employee is engaged in the furtherance of their employer’s business are fact specific. In one instance, the Board noted that the self insured employer (SIE) pointed out the general rule that employees are not within the scope of their employment while commuting to and from work, Matter of Lemon v New York City Tr. Auth., 72 NY2d 324 (1988), and that no exception to the general rule applies here since the claimant was not subjected to any "special hazard" while she was crossing the street Matter of Husted v Seneca Steel Serv., 41 NY2d 140 (1976). For instance, in a case involving an injury that occurred during an employee’s coffee break, the Board held that in order to find that the claimant sustained a compensable injury while on a coffee break, the record must contain sufficient evidence to find that prior to the break, the claimant was in the course of employment, and that the coffee break was only a momentary deviation from employment such that it did not interrupt the claimant’s employment. Matter of Marotta v Town & Country Elec., Inc., 51. In Marotta, the Court noted that "momentary deviations from the work routine for a customary and accepted purpose will not bar a claim for benefits and accidents that occur during an employee's short breaks, such as coffee breaks, are considered to be so closely related to the performance of the job that they do not constitute an interruption of employment" id.

Not in Furtherance of Employer’s Business

In New York, activities which are purely personal pursuits are not within the scope of employment and are not compensable under the Workers' Compensation Law, with the test being whether the activities are both reasonable and sufficiently work related under the circumstances' (Matter of Vogel v Anheuser-Busch, 265 AD2d 705 (1999).

Traveling Employees

New York does not generally distinguish between employees who travel for their work and those with a fixed place of work. New York law holds that “to be compensable, an injury must arise out of and in the course of employment. Workers' Compensation Law § 10. If the injury occurred during the course of claimant's employment, a presumption arises that it also 'arose out of' the scope of his employment, unless the presumption is successfully rebutted by substantial evidence to the contrary. Gutierrez v Courtyard by Marriott, 46 AD3d 1241; accord Matter of Camino v Chappaqua Transp., 19 AD3d 856 (2005); see Workers' Compensation Law § 21.

Commuting

In New York, the general rule is that employees are not within the scope of their employment while commuting to and from work, Matter of Lemon v New York City Tr. Auth., 72 NY2d 324 (1988), and that no exception to the general rule applies here since the claimant was not subjected to any "special hazard" while she was crossing the street Matter of Husted v Seneca Steel Serv., 41 NY2d 140 (1976).

No Fixed Place of Work Exception

See above.

Transportation Included in Employment Exception

New York Courts are not always clear on this distinction. The Courts have found that “as the employee comes in closer proximity with his employment site, there develops "a gray area" where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation.” Matter of Husted v Seneca Steel Serv., 41 NY2d 140 (1976). “The test of compensability in this "gray area" is whether the accident happened as an incident and risk of employment.” Matter of Jacobs v Dellwood Foods, supra at 849.

a.        The courts found that there must be (1) 'a special hazard at the particular off-premises point' and (2) a 'close association of the access route with the premises, so far as going and coming are concerned”. Matter of Husted v Seneca Steel Serv., supra at 142. Matter of Harris v New York State Off. of Gen. Servs., 13 AD3d 796 (2004).

Special Missions, Assignments, or Circumstances Exception

New York does not have such an exception.

Premises and Parking Lot Cases

In New York, the Appellate Division has held that claimant was not exposed to a special hazard when, while on his way to work he fell on ice on a public street walking from the parking garage where he and other employees routinely parked. The Court found that the danger existed to any passerby traveling along the street in that location. (Harris at 797).

Related to Employment

To be compensable under the Workers' Compensation Law, an accidental injury must have arisen both out of and in the course of employment, Matter of Thompson v New York Tel. Co., 114 AD2d 639 (1985); see Workers' Compensation Law § 10. Accidents arising 'in the course of' employment are presumed to arise 'out of' such employment, and this presumption can only be rebutted by substantial evidence to the contrary. Workers' Compensation Law § 21; Matter of Van Horn v Red Hook Cent. As noted above, New York has held that while a compensable accidental injury may either result from a single catastrophic event or develop gradually over a reasonably definite period of time, it must be demonstrated that a specific aspect of the claimant's workplace was a contributing factor in bringing about the injury" (Matter of Newton v Sears Roebuck & Co., 293 AD2d 862 [2002]. Also, to establish that the accidental injury developed gradually, rather than suddenly, the claimant must "demonstrate by competent medical evidence that [it] resulted from '"unusual environmental conditions or events assignable to something extraordinary"' at his workplace" Matter of Mazayoff v A.C.V.L. This means that heart attacks, infectious diseases, are all possibly compensable if they are the claimant’s workplace is demonstrated to be a contributing factor in bringing about the injury.

Intentionally Self-Inflicted Injury or Death

In a New York workers' compensation case, no one party is determined to be at fault. The amount that a claimant receives is not decreased by his/her carelessness, nor increased by an employer's fault. However, a worker loses his/her right to workers' compensation if the injury results solely from his or her intoxication from drugs or alcohol, or from the intent to injure him/herself or someone else. WCL § 10(1) provides that "there shall be no liability for compensation…when the injury has been solely occasioned by intoxication from alcohol or a controlled substance of the injured employee while on duty." WCL § 21(4) creates a rebuttable presumption that "the injury did not result solely from the intoxication of the injured employee while on duty."

Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs

“As a general rule, the misconduct of an employee, whether framed in terms of simple negligent dereliction of duty or even willful disobedience of the rules of the workplace, has no bearing upon whether an injury is compensable. Under the Workers' Compensation Law, fault of the respective parties simply has no bearing to the basic test of coverage (see Matter of Granger v Urda, 44 NY2d 91, 97)" (Matter of Merchant v Pinkerton's Inc., 50 NY2d 492 [1980]). "Activities which are purely personal pursuits are not within the scope of employment and are not compensable under the Workers' Compensation Law, with the test being whether the activities are both reasonable and sufficiently work related under the circumstances' (Matter of Vogel v Anheuser-Busch, 265 AD2d 705 [1999]

Employee’s Violation of Positive Orders of Employer

"As a general rule, the misconduct of an employee, whether framed in terms of simple negligent dereliction of duty or even willful disobedience of the rules of the workplace, has no bearing upon whether an injury is compensable. Under the Workers' Compensation Law, fault of the respective parties simply has no bearing to the basic test of coverage. Matter of Granger v Urda, 44 NY2d 91, 97. Instead, with limited exception, the sole inquiry is whether the injury arose out of and in the course of employment (see Workers' Compensation Law, § 21). If that inquiry be answered in the affirmative, compensation will be awarded the injured worker 'without regard to fault as a cause of the injury.” WCL § 10; see also § 2, subd 7.

       In New York, in keeping with the remedial purpose of compensation laws generally, the Workers' Compensation Law is to be liberally construed 'to accomplish the economic and humanitarian objects of the act.” Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 145. Because of these general considerations, then, there has never developed a rule of general applicability to the effect that an employee forfeits his compensation coverage by performing his duties in a needlessly dangerous way or in conscious disregard of the employer's instructions (1A Larson, Workmen's Compensation Law, § 30.00); Matter of Merchant v Pinkerton's Inc., 50 NY2d 492 (1980). "The 'work rule' cases proceed under this general premise. Simply stated, there is a crucial distinction between the job the claimant has been hired to perform and the manner in which the employee is to accomplish that task. Where the disobedience of a work rule results in the employee overstepping the boundaries defining the ultimate work to be done, the prohibited act is outside the course of employment and any claim for compensation arising there from will be denied. When the misconduct involves a violation of the employer's regulations or prohibitions relating to the method of accomplishing the ultimate work, however strictly enforced those regulations may be, the act remains within the course of employment. In such a case, disobedience of the prohibition does nothing more than establish fault on the part of the injured employee. Since fault concepts generally are immaterial to compensation law, violation of a work rule relating to the manner in which the job is to be accomplished does not result in an injured employee forfeiting the right to compensation. Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322; see Matter of Kilgore v Fragola, 14 AD2d 612; Matter of Macechko v Bowen Mfg. Co., 179 App Div 573; Matter of Merchant v Pinkerton's Inc., 50 NY2d 492 (1980).

Personal Animosity

In New York, "Activities which are purely personal pursuits are not within the scope of employment and are not compensable under the Workers' Compensation Law, with the test being whether the activities are both reasonable and sufficiently work related under the circumstances' (Matter of Vogel v Anheuser-Busch, 265 AD2d 705 (1999). If an individual is injured by another for reasons having nothing to do with the course of the employee’s employment, then the action is not considered compensable.

Hostile Attacks

As noted above, New York has held that while a compensable accidental injury may either result from a single catastrophic event or develop gradually over a reasonably definite period of time, it must be demonstrated that a specific aspect of the claimant's workplace was a contributing factor in bringing about the injury" (Matter of Newton v Sears Roebuck & Co., 293 AD2d 862 (2002). Therefore, if an employee is injured as a result of military actions by the United States or a foreign government, no compensation will be paid.

Retirement

General Rule

"It is now settled that where a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions." Matter of Hare v Champion International, 50 AD3d 1254 (2008), 11 NY3d 863 (2008). Likewise, a claimant who is temporarily partially disabled must also demonstrate an attachment to the labor market to be entitled to continuing compensation benefits. Matter of Bacci v Staten Island University Hospital, 32 AD3d 582 (2006). A partially disabled person need only seek employment within his or her medical restrictions (Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153 (2007)) and for which he or she is qualified (Matter of St. Francis Construction Co., 2009 NY Wrk. Comp. 30705539). Whether a claimant actually maintains an attachment to the labor market sufficient to justify continued compensation benefits is a factual determination for the Board to resolve. Matter of Rothe v United Medical Associates, 18 AD3d 1093 [2005]).

Proof of Voluntary Retirement

When there has been a finding that a claimant voluntarily retired or stopped working, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions. Matter of Hare v Champion Intl., 50 Engaged in the Furtherance of Employer’s Business 5.8.2 AD3d 1254 [2008], 11 NY3d 863 (2008); Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186 [2012]. A partially disabled person need only seek employment within his or her medical restrictions. Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153 (2007). Whether a claimant actually maintains an attachment to the labor market sufficient to justify continued compensation benefits is a factual determination for the Board to resolve. Matter of Rothe v United Med. Assoc., 18 AD3d 1093 (2005). As the Court of Appeals held in Zamora, 19 NY3d 186 (2012), "by finding alternative work consistent with his or her physical limitations, or at least showing reasonable efforts at finding such work, the claimant can prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again" (id.).

BENEFITS

Calculation of Average Weekly Wage

Claimants who are totally or partially disabled for more than seven days receive benefits for lost wages. The amount you receive is based on your average weekly wage for the 52 weeks prior to the date of injury, including overtime. It’s based on your gross earnings, not your take-home pay. The Board will use two-thirds of your average weekly wage, and then adjust it by the extent of your disability:

2/3 x average weekly wage x % of disability = weekly benefit

The weekly maximum benefit is two-thirds your average weekly wage subject to a maximum set forth in NY WCL §15(6). The maximum weekly wage benefit is based on accident date. It does not increase as maximum benefits increase.

Temporary Total Disability

The injured worker's wage-earning capacity is lost totally, but only on a temporary basis.

Permanent Total Disability

The employee's wage-earning capacity is permanently and totally lost. There is no limit on the number of weeks payable. In certain instances, an employee may continue to engage in business or employment, if his/her wages, combined with the weekly benefit, do not exceed the maximums set by law.

Temporary Partial Disability

The wage-earning capacity is lost only partially, and on a temporary basis.

Permanent Partial Disability

Part of the employee's wage-earning capacity has been permanently lost. There are two types of permanent partial disability benefits, depending on the body part affected and the nature of the permanent disability: schedule loss of use (SLU) and non-schedule. The severity of the disability is measured when the employee has reached maximum medical improvement (MMI). MMI is presumed to occur no more than two years after the date of injury.

1.       Schedule Loss of Use:

A SLU occurs when an employee has permanently lost use of an upper extremity (shoulder, arm, hand, wrist, finger), lower extremity (hip, leg, knee, ankle, foot, toe), or eyesight or hearing. Compensation is limited to a certain number of weeks based on the body part and severity of the disability, according to a schedule set by law. Temporary benefits that have been paid are deducted from the total SLU award.
2.       Non-Schedule Loss of Use:

Non-schedule is a permanent disability involving a part of the body or condition that is not covered by a SLU award (e.g. spine, pelvis, lungs, heart, brain, etc.). Non-schedule benefits are based on the employee's permanent loss of earning capacity. If the work related accident or date of disablement occurred before March 13, 2007, benefits are payable as long as the partial disability exists and results in wage loss.

3.        If the work related accident or date of disablement occurred on or after March 13, 2007, benefits are payable for a maximum number of weeks as determined by the claimant's loss of wage-earning capacity. The maximum number of weeks is set forth in statute as follows:
a.       525 weeks for loss of wage earning capacity of greater than 95%
b.       500 weeks for loss of wage earning capacity of greater than 90% thru 95%
c.       475 weeks for loss of wage earning capacity of greater than 85% thru 90%
d.       450 weeks for loss of wage earning capacity of greater than 80% thru 85%
e.       425 weeks for loss of wage earning capacity of greater than 75% thru 80%
f.       400 weeks for loss of wage earning capacity of greater than 70% thru 75%
g.        375 weeks for loss of wage earning capacity of greater than 60% thru 70%
h.       350 weeks for loss of wage earning capacity of greater than 50% thru 60%
i.       300 weeks for loss of wage earning capacity of greater than 40% thru 50%
j.       275 weeks for loss of wage earning capacity of greater than 30% thru 40%
k.       250 weeks for loss of wage earning capacity of greater than 15% thru 30%
l.       225 weeks for loss of wage earning capacity of 15% or less

Impairment Rating

New York has adopted specific impairment ratings for different body parts typically injured as a result of a worker’s compensation accident.

Vocational Rehabilitation

Rehabilitation is a program offering special services designed to: eliminate the disability, if that is possible, or to reduce or alleviate the disability to the greatest degree possible; help an injured worker to return to work when possible; or to aid the person with a residual disability to live and work at his/her maximum capability. New York State’s Worker’s Compensation Board's Rehabilitation staff includes Vocational Rehabilitation Counselors, social workers, and claims examiners to coordinate and follow-up on medical and vocational rehabilitation services. Rehabilitation is voluntary except in limited circumstances, it is mandatory under WCL §15.3(v), i.e., 50% or greater scheduled loss of use.

a.       There are four general types of services offered:
1.       Vocational Rehabilitation programs for those who, because of their disability, cannot return to their former jobs. These services may provide guidance to help the claimant determine the best way to return to work.
2.       Selective Placement programs for those claimants who are left with a permanent disability, and who need a job that will fit their abilities.
3.       Medical Rehabilitation programs include exercise and muscle conditioning, under the supervision of a physician, to restore a person to maximum usefulness. Only a physician may recommend a medical rehabilitation program.
4.       Social Services provide a staff of social workers to assist an injured worker with a family or financial problem that is interfering with the rehabilitation.

b.       Claimants who are participating in one of the rehabilitation programs continue to receive cash benefits based on the extent of the disability. Claimants who return to work but cannot earn the same wages because of an injury may be entitled to compensation benefits at a reduced rate.

Return to Work with Loss of Earnings – Permanency Requirements: 2012 Guidelines

The 2012 Guidelines are the New York standards for evaluating permanent disabilities. The 2012 Guidelines include new impairment guidelines for non-schedule permanent disabilities, along with guidance for medical professionals on how to evaluate physical function and how the Board determines loss of wage earning capacity. To be eligible for a PPD-NSL award, an injured worker must have a permanent medical impairment that is eligible for a non-schedule award and have reached maximum medical improvement. Once these two determinations have been made, the Board calculates the loss of wage earning capacity, which then establishes the maximum number of benefit weeks available.

MMI Determinations:       Evaluation of permanent disability occurs when there is a permanent impairment remaining after the claimant has reached maximum medical improvement (MMI). A finding of MMI is based on a medical judgment that (a) the claimant has recovered from the work injury to the greatest extent that is expected and (b) no further improvement in his/her condition is reasonably expected.

The Guidelines set forth the steps physicians should take when preparing a report on permanent impairment. A final evaluation examination must be conducted to determine whether the claimant should be given a schedule award or a non-schedule award. A schedule award is given not for an injury sustained, but for residual permanent and functional impairments, including impairment of extremities, loss of vision, loss of hearing, or facial disfigurement. The Guidelines include a table of weeks for schedule awards by percentage of loss of use of each body part affected. A non-schedule award is given for classifications of permanent partial or total disability, for permanent impairments of the spine, pelvis, lungs, heart, skin, and brain. Non-schedule awards are calculated based on various inputs (see below).

Non-Schedule Awards: Evaluation of non-schedule permanent partial disability (PPD-NSL) involves both medical and non-medical issues. The duration of PPD-NSL benefits is limited based on the claimant’s loss of wage earning capacity, which is based on three types of input:
1.       Medical impairment: medical evidence provided by the treating provider and the carrier consultant, pursuant to the final evaluation examination guidelines;
2.       Functional ability/loss: medical evidence provided by the treating provider and the carrier consultant, which may include at-injury job evidence, functional ability/restrictions, exertional ability, psychiatric limitations, other limitations, and payment;
3.       Non-medical/vocational factors: non-medical evidence presented by the parties as part of the evaluation of loss of wage earning capacity.

To be eligible for a PPD-NSL award, an injured worker must have a permanent medical impairment that is eligible for a non-schedule award and have reached maximum medical improvement.

Loss of Wage Earning Capacity: Loss of wage-earning capacity (LWEC) is the reduction in an injured worker’s earning capacity due to a work-related injury or disease. The degree of LWEC is the level of disability used to calculate the claimant’s weekly benefit rate. This is a fact-specific inquiry; there is no simple formula to determine loss of wage earning capacity. Instead, the Board may consider factors such as medical impairment, functional limitations, prior work history, education, age, skills, and aptitudes.

Earning Power Assessment

See above.

Amputation or Loss of Use

In New York, compensation for amputation or loss of use of a particular body part is governed by Workers' Compensation Law Section 15. Section 15 prescribes the value for a percentage loss or loss of use of body members. Each body part is different depending on the level of impairment or the amount of amputation required, such as the tip of a finger, the entirety of a finger, etc. Please consult the guidelines on the New York State Worker’s Compensation Website for a full explanation.

Disfigurement/Scarring

Serious and permanent disfigurement to the face, head or neck may entitle the worker to compensation up to a maximum of $20,000, depending upon the date of the accident.

Loss of Sight

The purpose of this chapter is to provide criteria for use in evaluating permanent impairment resulting from dysfunction of the visual system, which consists of the eyes, ocular adnexa and the visual pathways. A method is provided for quantifying visual impairment resulting from a work-related injury. This can then be translated into a payment schedule.

The parameters for scheduling are: (1) loss of uncorrected or corrected visual acuity for objects at distance, (2) visual field loss and (3) diplopia. Evaluation of visual impairment is based on these three functions. Although they are not equally important, vision is imperfect without the coordinated function of all three.

Where there is a visible deformity related to the eye and face, this is scheduled on a per case basis. The following equipment is necessary to test the functions of the eye:
1. Visual acuity test charts for distance vision; the Snellen test chart with letters and numbers, the illiterate E chart, or Landolt's broken-ring chart is desirable.
2. Either a Goldmann type or automated perimeter where the extent of visual field is recorded in degrees.
3. Refraction equipment or report of a recent refraction or recently prescribed glasses.
4. A hand held light with a red glass.
5. A slit lamp.
6. An ophthalmoscope.

Criteria and Methods for Evaluating Permanent Impairment:

a) Central Visual Acuity: The chart or reflecting surface should not be dirty or discolored. The far test distance simulates infinity at 6 m (20 ft.) or at no less than 4 m (13 ft. 1 in.). The central vision should be measured and recorded for distance with and without wearing conventional spectacles. The use of contact lens may further improve vision reduced by irregular astigmatism due to corneal injury or disease. In the absence of contraindications, if the patient is well adapted to contact lenses and wishes to wear them, correction by contact lenses is acceptable.

Visual acuity for distance should be recorded in the Snellen notation, using a fraction– where the numerator is the test distance in feet or meters – and the denominator is the distance at which the smallest letter discriminated by the patient would subtend 5 minutes of arc, that is, the distance at which an eye with 20/20 vision would see that letter. The fraction notation is one of convenience that does not imply percentage of visual acuity.

b) The procedure for determining the loss of central vision in one eye:

(1) Measure and record best central visual acuity for distance with and without conventional corrective spectacles or contact lens.
(2) Schedule according to the Table 1 for uncorrected or corrected visual loss (in the injured eye) whichever is greater.

Loss of Hearing

The waiting period for a worker to file a claim for a job-related hearing loss is three months from the date the worker leaves employment or is removed from exposure to harmful noise in the workplace (can be by way of effective protective devices). The last day of the three month period of removal is considered the worker's date of disablement.

a. Occupational Loss of Hearing

i.       Under these standards which in effect measure the ability to hear normal speech, audiometric tone tests at varying intensity of sound are conducted at frequency levels of 500, 1000, 2000, 3000 Hertz (Hz). Results at the four frequency levels are averaged and if the threshold necessary for the individual to hear sound is 25 decibels (dB) or less, no hearing impairment is considered to be present. For every decibel that the hearing level of an ear exceeds 25 dB, hearing loss is calculated at 1 ½ percent, up to 100 percent at 92 dB. Thus, if the worker's hearing level is 41 dB, he or she would have a hearing loss of 24 percent in that ear. The percentage of hearing loss in the worker's better ear is multiplied by 5, and the resulting figure is added to the percentage of hearing loss in the worker's poorer ear. The total is divided by 6 and this represents the worker's overall percentage of hearing loss for which benefits are awarded.

b.Traumatic Loss of Hearing

i.Traumatic hearing loss may occur as a result of a blow to the head, a strong blast of air into the ear, etc. A different method is used to determine the degree of hearing loss as a result of trauma than as a result of occupational disease. The scale used to measure percentage is based upon 250 Cycles Per Second (CPS) to 4000 CPS. The schedule for complete loss of hearing for both ears is 150 weeks, and the schedule for each ear is 60 weeks. The method used to compute the loss is to take the percentage of loss in each ear, total it, and then divide it by 2. For example: 25% in right ear 40% in left ear = 65% total loss. Divide 65% by 2, which equals 32 ½ %.

Penalties

Failure To Secure Coverage (Criminal)

Section 52 [1] (a) of the Workers' Compensation Law provides that a failure to secure the payment of compensation for five or less employees within a 12 month period shall constitute a misdemeanor punishable by a fine of not less than $1,000 nor more than $5,000. Failure to secure the payment of compensation for more than five employees within a 12 month period shall constitute a class E felony punishable by a fine of not less than $5,000 nor more than $50,000 and is in addition to any other penalties otherwise provided by law.

Subsequent Failure To Secure Coverage (Criminal)

Section 52 [1] (b) Where any person has previously been convicted of a failure to secure the payment of compensation within the preceding five years, upon conviction for a subsequent violation such person shall be guilty of a class D felony, fined not less than $10,000 nor more than $50,000 and is in addition to any other penalties including fines otherwise provided by law.

Misrepresentation (Civil and Criminal):

An employer must keep accurate records of the number of employees, classification, wages and accidents for their business for four years (WCL §131). Any attempt by an employer to intentionally and materially understate or conceal payroll, conceal employee duties to avoid proper classification, or conceal any other information pertinent to the calculation of premium paid to secure compensation may result in a fine of $2,000 per every 10-day period of noncompliance or two times the cost of compensation. Additionally, the fine for criminal conviction is from $1,000 to $50,000. (WCL §52 [1] (d)).

•       Examples of misrepresentation include failure to pay appropriate workers' compensation premiums by paying workers "off the books," not reporting wages paid to illegal aliens, misclassifying employees as "independent contractors," and misclassifying the work of a business to a classification that is less hazardous (identifying all roofers as secretarial staff), and/or intentionally, materially misrepresenting or concealing information pertinent to calculation of premium paid.

Failure To Secure Coverage (Civil):

Section 52 [5] of the Workers' Compensation Law provides that the Chair, upon finding that an employer has failed for a period of not less than ten consecutive days to make the provision for payment of compensation may impose upon such employer, in addition to all other penalties, fines or assessments, a penalty of $2,000 dollars for each ten day period of non-compliance or a sum not in excess of two times the cost of compensation for its payroll for the period of such failure, which sum shall be paid into the uninsured employers' fund.

Costs

Workers Compensation Law Section 24 governs the costs and fees associated with the prosecution of a claim. If the court before which any proceedings for compensation or concerning an award of compensation have been brought, under this chapter, determine that such proceedings have not been so brought upon reasonable ground, it shall assess the cost of the proceedings upon the party who has so brought them. Claims of attorneys and counselors-at-law for legal services in connection with any claim arising under this chapter, and claims for services or treatment rendered or supplies furnished pursuant to subdivision (b) of section thirteen of this chapter, shall not be enforceable unless approved by the board.

If so approved, such claim or claims shall become a lien upon the compensation awarded, and upon any moneys ordered paid under an award by the board into the special funds provided for in section fifteen, subdivision nine, and section twenty-five-a, and any other section of this chapter, but shall be paid there from only in the manner fixed by the board. Any other person, firm or corporation who shall exact or receive fee or gratuity for any services rendered on behalf of a claimant except in an amount determined by the board, shall be guilty of a misdemeanor. Any person, firm or corporation who shall solicit the business of appearing before the board on behalf of a claimant, or who shall make it a business to solicit employment for a lawyer in connection with any claim for compensation under this chapter shall be guilty of a misdemeanor. In case an award is affirmed upon an appeal to the appellate division, the same shall be payable with interest thereon from the date when said award was made by the board except as provided in section twenty-seven of this chapter.

Death Benefits

Section 16 of the Workers Compensation Law governs the payment and processing of death benefits. In New York, [T]he work-related illness need not be the sole or even the most direct cause of death, provided that the claimant demonstrates that the compensable illness was a contributing factor in the decedent's demise (see Matter of Altes v Petrocelli Elec. Co., 270 AD2d 767 (2000); Matter of Losso v Tesco Traffic Servs., 248 AD2d 812 91998); see also Matter of Freer v New Process Gear, 237 AD2d 869 (1997); Matter of Imbriani v Berkar Knitting Mills, 277 AD2d 727 (2000). If they do, the claimant or their next of kin will be able to recover benefits.

Widow/Widower

In New York, in most cases benefits may stop. The widow/widower must file for a Workers' Compensation Death claim showing medical proof that the claimants death was related to the established work injury. If the death claim is found compensable, payments may resume retroactive back to the date of death.

Children

Minor children under the age of 18 can receive death benefits. As can children under the age of 23 enrolled full time in an accredited full time educational institution.

Parents and Siblings

Parents who were not dependent on the deceased would be eligible for a no-dependency award if there were no spouse, children, or other dependent family members. They would also be eligible for up to the maximum in the rules promulgated by the chair.

Amounts of Benefits

The amount of benefits is determined by the Act on the date of the injury. Workers Compensation section 16 provides various percentages of the pre-injury average weekly wage of the decedent payable to the various classes.

Medical Benefits

The injured or ill worker who is eligible for workers' compensation will receive necessary medical care directly related to the original injury or illness and the recovery from his/her disability. The treating health care provider must be authorized by the Workers' Compensation Board, except in an emergency situation. There are certain exceptions where insurance carriers or self-insured employers can direct medical treatment for the injured worker as described below:

Some injured or ill workers may require diagnostic tests, x-ray examinations, magnetic resonance imaging (MRI) or other radiological examinations or tests. As of March 13, 2007, insurance carriers, which includes self-insured employers and the State Insurance Fund, are authorized to contract with a legally and properly organized diagnostic networks to perform diagnostic tests, x-ray examinations, magnetic resonance imaging or other radiological tests or examinations or tests. In addition, insurance carriers may require claimants to obtain or undergo such diagnostic tests with a provider or at a facility that is affiliated with the network the carrier has contracted with, except when a medical emergency exists requiring an immediate diagnostic test or if the network does not have a provider or facility able to perform the diagnostic test within a reasonable distance from the claimant's residence or place of employment.

Beginning July 11, 2007, when a claimant or pharmacy submits a claim to an insurance carrier for payment or reimbursement of the cost of prescribed medicine for the work related injury or illness, the insurance carrier must pay the amount set forth in the Pharmacy Fee Schedule within 45 days of receipt of the claim, unless the claim has not been established or the prescribed medicine is not for a casually related condition. If the claim is not established or the prescribed medicine is not for an injury or illness related to the work accident or disease, the insurance carrier must pay any undisputed portion and notify the injured or ill worker or the pharmacy in writing within 45 days of receipt of the claim that the claim is not being paid, why it is not being paid and requesting any additional information needed to establish the claim.

Also, beginning July 11, 2007, insurance carrier may contract with a pharmacy or pharmacy network to provide prescribed medicines to injured or ill workers and may require injured or ill workers to obtain their prescribed medicines from such pharmacy or pharmacy network. The only exceptions are when a medical emergency occurs and it is not reasonably possible to obtain immediately required prescribed medicines from such pharmacy or pharmacy network or the pharmacy or pharmacy network does not offer mail order service and do not have a physical location within a reasonable distance from the claimant.

The cost of necessary medical services is paid by the employer or the employer's insurance carrier, if the case is not disputed. The health care provider may not collect a fee from the patient. When appropriate, claimants will be awarded reimbursement for automobile mileage to and from a health care provider's office.

Health care providers may request that injured workers sign form A-9. This form is meant to provide notice to the injured worker that he or she may be responsible to pay the medical bills if the Workers' Compensation Board disallows the claim or the injured worker does not pursue the claim.

Medical Treatment Guidelines:

Application

•       The MTGs are mandatory for all work-related injuries and illnesses experienced by employees who:
•       Live in New York; and/or:
•       Are treated by medical providers in New York or who have offices in New York:
•       The MTGs do not apply to the treatment of urgent or emergent care:
•       If the plaintiff changes medical providers mid-treatment, the timelines and/or number of treatments described in the MTG do not start again with the new provider:
•       If additional service is required beyond the Guidelines, the treating provider will have to justify it though the variance process (see Variances) :

Section 324.2 – Medical Treatment Guidelines

•       Applies to treatment of the following:
•       Mid and Low Back (lumbar and thoracic spine)
•       Neck (cervical spine)
•       Knee
•       Shoulder
•       Carpal Tunnel Syndrome – effective March 1, 2013
•       As of 12/1/10, regardless of the date of accident or date of disablement, on the job injuries, illnesses to one of the 4 body parts, must be treated consistent with the MTG
•       In general, all procedures are pre-authorized, even if over $1,000
•       Exceptions

12 procedures require pre-approval (324.2.d.2):

•       Lumbar Fusion (Mid and Low Back)
•       Artificial disc replacement (Mid and Low Back and Neck)
•       Spinal Cord Stimulators (Mid and Low Back)
•       Vertebroplasty (Mid and Low Back)
•       Kyphoplasty (Mid and Low Back)
•       Electrical Bone Stimulation (Mid and Low Back and Neck)
•       Anterior Acromioplasty (Shoulder)
•       Chondroplasty (Knee)
•       Osteochondral Autograft (Knee)
•       Autologus Chondrocyte Implantation (Knee)
•       Meniscal Allograft Transplantation (Knee)
•       Knee Arthroplasty (total or partial knee joint replacement) (Knee)

Subsequent Surgical Procedure (324.2.d.3):

•       Even if a surgical procedure is consistent with the Guidelines, a second or subsequent performance of such a surgical procedure requires pre-approval if it is repeated because of the failure or incomplete success of the same surgical procedure performed earlier, and if the MTG do not specifically address multiple procedures
•       Maximum Medical Improvement shall not preclude the provision of medically necessary care for claimants
•       Such care must be medically necessary to maintain function at the maximum medical improvement level or to improve function following an exacerbation of the claimant’s condition
•       Post-maximum improvement medical services shall conform to the relevant MTG

Section 324.3 – Variances

•       Insurance carriers and Special Fund must designate a qualified employee as a point of contact for the Board and Providers regarding variance requests
•       A variance is requested when the Provider determines that:
•       Medical care varies from the MTG; and
•       Is appropriate for the claimant; and
•       Is medically necessary
•       A variance request must be made on WCB Form MG-2 (see appendix); if requesting a variance for more than 1 procedure at the same time, the MG-2.1 form is to be used for the additional variances requested
•       A variance must be requested BEFORE the medical care requested is provided – a request for a variance will not be considered if the medical care has already been provided
•       The burden of proof is on the Provider that a variance is appropriate and medically necessary for the claimant

Process:

•       A copy of the MG-2 form must be sent to the insurance carrier or Special Fund, WCB, claimant, and the claimant’s legal counsel, all on the same day via same day transmission
•       For ALL variances, all questions on the form must be answered completely, clearly setting forth information that meets the following requirements:
•       Medical opinion of why the treatment is medically necessary, included the basis for the opinion;
•       A statement that the claimant understands and agrees to undergo the proposed medical care
•       An explanation of why alternative under the MTG are not appropriate or sufficient
•       In addition, for appropriate claims, the following information is required:
•       A description of any signs or symptoms which have failed to improve with previous treatments provided in accordance with the MTG; or
•       If the variance involves frequency or duration of a particular treatment, a description of the functional outcomes that, as of the date of the variance request, have continued to demonstrate an objective improvement from that treatment and are reasonably expected to further improved with additional treatment
•       Providers may submit citations or copies of relevant literature published in recognized, peer-reviewed medical journals for support
 

Timeline:

•       *Note*: Date of receipt is the day sent if sent via same day transmission; however, if sent by mail, the date of receipt is 5 days after the Provider certified that the form was sent
•       The carrier has 15 calendar days of receipt to respond without obtaining an IME
•       Response must be provided on the same form as the request
•       The carrier has 5 calendar days to notify the Provider that it wants an IME conducted of the claimed or a review of records in order to respond the request
•       The carrier must fill out the appropriate sections of the form and send a copy to both the WCB and the Provider via same day transmission
•       The carrier has a total of 30 days from receipt of the variance request to give a final response – to be indicated on the form and sent via same day transmission to the WCB and Provider
•       The Provider has 8 business days, from receipt of the denial, to try and resolve the dispute informally with the carrier
•       If no informal resolution has been reached, the claimant has 21 business days from the receipt of the denial to seek review

Options:

•       An insurance carrier or Special Fund can either APPROVE or DENY the request
•       Approval: carrier is saying that it will pay for that specific treatment or test
•       Denial: the carrier will not pay for the specific treatment or test and the issue has been disputed and will be resolved by the WCB if the claimant requests
•       * * if the claim is controverted or the time to controvert the claim has not expired, a response to the variance request must still be given, but, the approval or denial is limited only to the issue of medical necessity and is not an admission that the condition for which the variance is requested is compensable or that the carrier is the proper carrier

Denial:

Generally, a variance request may be denied for 4 reasons:
1.       The medical care requested has already been rendered;
2.       The Provider did not meet his/her burden of proof;
3.       The test or treatment requested is not medically necessary or appropriate; or
4.       The claimant failed to appear, with reasonable cause, for the scheduled IME
•       The basis for denial shall be stated in detail
•       If the reason for denial is other than 1, 2, or 4 (as stated above), the written report of the insurance carrier or Special Fund’s medical professional that reviewed the variance request or records, must be attached and sent to all other parties

Dispute Resolution: 2 Options

•       Informal resolution with the carrier or Special Fund
•       Review by the WCB:
Request for review must be made on Form MG-2
•       2 Methods of Review by the WCB:
•       Expedited Hearing Process (default)
•       Overseen by a Workers’ Compensation Law Judge
•       Hearing scheduled within 30 days after receipt of request
•       Medical testimony may be taken before or at the hearing
•       Depositions can only be taken if claimant is represented by counsel
•       Continuances are limited to 30 days and only for cases involving complex medical issues of diagnosis or causation
•       Burden of proof is on the claimant and Provider
•       Arbitration by WCB Medical Director
•       The claimant and insurance carrier or Special Fund must state in writing:
1       They waive their right to an expedited hearing; and
2       Request that the issue be decided by a medical arbitrator
•       The decision of the WCB Medical Director is final and binding and there is no right to an appeal

Section 324.4 – Optional Prior Approval

•       Insurance carriers and Special Fund that participate in the optional prior approval process must designate a qualified employee as a point of contact for the Board and Providers
•       An insurance carrier may opt out of the prior approval process
•       The Provider can request prior approval from the insurance carrier or Special Fund to confirm that the proposed medical care is consistent with the MTG.

Request Requirements:

•       Must be sent by same day transmission but Provider may also reach out by telephone
•       Must be on WCB form MG-1 and MG-1.1 (if more room is needed) (forms included in index)
•       Information on form must include:
•       The body part;
•       The treatment or procedure requested; and
•       The corresponding section of the MTG

Timeline:

•       Response: Carrier has eight (8) business days from receipt of the request to approve or deny the request
•       Approval of the request means that the insurance carrier or Special Fund agrees that the medical care requested is consistent with the MTG
•       They should fill out the appropriate section of the MG-1 form and send to both the Board and the Provider via same day transmission
•       Approval of a controverted claim or a claim where the time to controvert has not expired, shall not be construed as an admission that the condition for which the approval was requested is compensable
•       The insurance carrier or Special Fund is not liable for the cost of the treatment unless the claim or conditions is established
•       Before a request can be denied, it must be reviewed by the insurance carrier or Special Fund’s medical professional before it may be denied
•       If denied, the appropriate section of the MG-1 form should be filled out and include the basis for its denial
•       The denial must be sent to the Board and Provider via same day transmission
•       The medical care requested is deemed approved on the ground that approval was unreasonably withheld if no response is received within 8 business days

Resolution of Dispute of Denial By Provider:

•       Not mandatory, but Provider may discuss the request directly with the insurance carrier or Special Fund’s medical professional prior to commencing formal review
•       If dispute is resolved, it must be confirmed by the insurance carrier or Special Fund on the MG-1 form and sent to the Provider and the Board via same day transmission
•       If dispute is unresolved, the Provider may request review of the denial by completing the appropriate sections of the MG-1 and sending it to the Board via same day transmission
•       Formal Review of Denial:
•       Review must be requested within 14 days of the denial
•       Review is performed by the medical arbitrator and he/she will rule on whether the medical care is consistent with the MTG
•       Within 8 business days of receipt of the request for review, the medical arbitrator will issue a notice of resolution setting forth the ruling and basis for such ruling
•       Notice of resolution is binding and not appealable
•       Notice of resolution does not preclude, where applicable, a subsequent request for a variance

Section 324.5 – Conditions, treatments, or diagnostic tests not addressed by Medical Treatment Guidelines

•       A Provider should seek a variance if the MTG is silent to a particular condition, treatment or diagnostic test
•       The WCB will resolve the request and determine whether the carrier is obligated to pay by looking at:
•       Appropriateness and medical necessity of the treatment;
•       Whether alternatives within the MTG are appropriate or sufficient;
•       Whether claimant agrees to the treatment;
•       Whether symptoms failed to improve with treatments within the MTG;
•       Whether objective functional improvements can reasonably be expected; and
•       Relevant literature concerning the proposed treatment published in recognized, peer-reviewed, medical journals

Section 324.6 – Incorporation into policies, procedures and practices

•       Insurance carries and Special Fund must incorporate the MTG set forth in section 324.2 (a) and (b) and the provisions in sections 324.3 (b), 324.4 (a), and 324.5, and section 325-1.25 of Subpart 325-1 into their policies, procedures, and practices
Multiple Body Part / Diagnosis
•       If the claimant has 2 or more diagnosis for one body part, which result in different MTG paths, the Provider may opt to follow the MTG for either diagnosis
•       If the claimant is being treated for multiple injuries, including body parts both covered and not covered by the MTG, the Provider must utilize the MTG for those body parents covered by the Guidelines and follow their normal standard of care and normal Board rules and processes, including authorization of treatment in excess of $1,000 for the other body parts

Refusal of Medical Treatment

Refusal to submit to any exam designated by your insurance carrier may affect a worker’s claim, including such claim being terminated. See Worker’s Compensation Law section 137.

SUBROGATION OR CREDIT

General Rule

If an employee entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employee, or in case of death, his dependents, need not elect whether to take compensation and medical benefits under this chapter or to pursue his remedy against such other but may take such compensation and medical benefits and at any time either prior thereto or within six months after the awarding of compensation or within nine months after the enactment of a law or laws creating, establishing or affording a new or additional remedy or remedies, pursue his remedy against such other subject to the provisions of this chapter. If such injured employee, or in case of death, his dependents, take or intend to take compensation, and medical benefits in the case of an employee, under this chapter and desire to bring action against such other, such action must be commenced not later than six months after the awarding of compensation or not later than nine months after the enactment of such law or laws creating, establishing or affording a new or additional remedy or remedies and in any event before the expiration of one year from the date such action accrues. In such case, the state insurance fund, if compensation be payable there from, and otherwise the person, association, corporation or insurance carrier liable for the payment of such compensation, as the case may be, shall have a lien on the proceeds of any recovery from such other, whether by judgment, settlement or otherwise, after the deduction of the reasonable and necessary expenditures, including attorney's fees, incurred in effecting such recovery, to the extent of the total amount of compensation awarded under or provided or estimated by this chapter for such case and the expenses for medical treatment paid or to be paid by it and to such extent such recovery shall be deemed for the benefit of such fund, person, association, corporation or carrier. Should the employee or his dependents secure a recovery from such other, whether by judgment, settlement or otherwise, such employee or dependents may apply on notice to such lienor to the court in which the third party action was instituted, or to a court of competent jurisdiction if no action was instituted, for an order apportioning the reasonable and necessary expenditures, including attorneys' fees, incurred in effecting such recovery. Such expenditures shall be equitably apportioned by the court between the employee or his dependents and the lienor.

Attorney’s Fee

In New York, a workers’ compensation judge is responsible to set the attorney fee to be awarded to your attorney. The amount of the attorney fees will be deducted from the benefits you are found entitled to receive at the time your attorney wins your case. If your attorney is unsuccessful in securing additional workers’ compensation benefits for you, you may be responsible for paying the costs associated with the legal services. This includes filing fees, copy costs, and other charges. You and your attorney should agree at the time you retain your attorney regarding the types and/or amount of costs you will pay.

Motor Vehicle Accidents

Any of the foregoing providers of compensation and/or medical benefits which has recovered a lien pursuant to the provisions hereof against the recovery of a person injured on or after February first, nineteen hundred seventy-four and before July first, nineteen hundred seventy-eight, through the use or operation of a motor vehicle in this state, shall notify such person by certified mail in a manner to be approved by the chairman and the superintendent of financial services of the responsibility of an "insurer" (as defined in subsection (g) of section five thousand one hundred two of the insurance law), to reimburse such person under such circumstances to the extent that the recovered lien represent first party benefits as defined in article fifty-one of the insurance law.

Health Benefits

A health insurance carrier may be entitled to subrogate for benefits paid depending on the policy and whether the plan is an ERISA plan or an ERISA backed plan.

Credits

In New York, compensation previously paid on a claim will be credited against any final award or decision by a Workers Compensation Law Judge.

ATTORNEYS

Certifying Organization

In New York, there is no specialized certifying body in the area of worker’s compensation law. In New York, No person except an attorney-at-law of this State, a law school graduate or senior law student as permitted by the Judiciary Law and these rules, a representative licensed by the board, an authorized employee of a licensed representative of self-insurers, or a regular employee of a self-insured employer or insurance carrier may practice before the board.

Required Documentation

A licensed New York Attorney is not required to produce any specialized documentation in order to practice before the Worker’s Compensation Board. An attorney duly admitted to practice in another state may be permitted to represent any party in interest before the board, on a particular matter, upon proof submitted with his or her application that reciprocal privileges are accorded attorneys of this State.Additional Information: Not applicable. See Section 302 of the Worker’s Compensation Law for further information.

CLAIMS PROFESSIONALS

Any Claims Professional who is not a regular salaried employee of an authorized insurer must be licensed in New York in order to manage and adjust workers’ compensation claims. There is a continuing education requirement.

LITIGATION AND APPEAL

Workers’ Compensation Judge Proceedings

Office of Adjudication

Not applicable in New York

Appointment of Workers’ Compensation Judges

In New York, judges are appointed by the Worker’s Compensation Board Chairperson. Judges are also known as Compensation Claims Referee. They are appointed by the Chair of the Workers’ Compensation Board from a Civil Service competitive process to hear and determine claims and to conduct such hearings and investigations and make such orders, decisions and determinations as may be required in the adjudication of the claims. A Judge’s decision is deemed the decision of the Board unless the Board modifies or rescinds such decision. A judge must be an attorney in good standing within the state.

Qualifications of WCJ

See appointment process.

Procedure

In New York, any controverted claim is governed by Workers Compensation Law section 300.38. An insurance carrier who controverts a claim shall file with the Board and serve upon all other parties a notice of controversy on the form prescribed by the Chair in accordance with Workers' Compensation Law section 25 (2) (a) or (b) or section 300.22(d)(3) of this Part. The notice of controversy shall comply with the following:
(1)       it must be complete and provide a factual basis for the insurance carrier's controverting the claim and for any asserted defenses;
(2)       it must contain a written certification signed by the insurance carrier, or if represented, by its legal representative, that to the best of his or her knowledge, information and belief, formed after an inquiry reasonable under the circumstances that the allegations and other factual matters asserted in controverting the claim or the defenses asserted have evidentiary support, or if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. If the initial certification is not signed by a legal representative, then before a legal representative may appear on behalf of the insurance carrier, the legal representative shall file and serve the required certification;
(3)       it must provide the name and, if known, the address and telephone number of each individual likely to have information that the insurance carrier may use to support its factual basis for controverting the claim or for supporting a defense, and briefly describe the information; and
(4)       it must provide a list of all documents in the possession, custody or control of the insurance carrier that it may use to support the factual basis for controverting the claim or for supporting a defense.

Upon receipt of the notice of controversy and a Medical Report, the Board shall send notice to the parties that shall include the following:
(1)       The date of the pre-hearing conference, which shall not be later than thirty days from receipt of a notice of controversy and a Medical Report;
(2)       An order directing the parties, except a claimant that has not retained a legal representative, to serve and file a pre-hearing conference statement no later than ten days before the date of the pre-hearing conference; and
(3)       Notification that any independent medical examination report as provided in section 300.2(d)(3) of this Part (hereinafter referred to as IME Report) shall be filed with the Board and served as required by Workers' Compensation Law section 137(a)(1) at least three days before the date set for the Initial Expedited Hearing; and
(4)       the failure to so file and serve an IME Report shall be a waiver, as provided in subdivision (g)(8) of this section, of the insurance carrier's right to examine the claimant and to have filed on its behalf or otherwise have considered an IME Report on the threshold issue of causal relationship.

In accordance with the limited release, the parties may seek production of relevant medical records from medical professionals and hospitals that have treated the claimant for previous injury to the same body part or similar illness to the one listed on the Employee Claim form. All medical records obtained by the parties shall be filed with the Board so that all parties have access to them.

If a claimant retains a legal representative after a claim is indexed or after the carrier files a form to controvert the claim when the claim is not indexed, the legal representative shall, within five days thereof, file with the Board and serve on all other parties a notice of retainer on the form prescribed by the Chair together with an Employee Claim form or the legal representative's certification of a previously filed Employee Claim form and the list of documents required to accompany the Employee Claim form of a claimant who has retained a legal representative as required in §300.37(d)(1).

Claimant's retention of a legal representative within ten days of the pre-hearing conference may constitute good cause for the insurance carrier to obtain an adjournment of that conference. Such adjournment shall be within the discretion of the Workers' Compensation Law Judge.

Ten days before the pre-hearing conference, the insurance carrier or its legal representative and legal representative of the claimant shall file with the Board and serve on all other parties a pre-hearing conference statement. A claimant that has not retained a legal representative on or before the date for the pre-hearing conference shall not be required or asked to file the pre-hearing conference statement. The pre-hearing conference statement shall contain information to facilitate the just, speedy and efficient disposition of the claimant's right to workers' compensation benefits, including settlement.

Failure by the insurance carrier to timely serve upon all other parties and file with the Board the pre-hearing conference statement, or the filing by the insurance carrier of a materially incomplete statement shall result in a waiver of defenses to the claim; failure to list a witness on, or to include a copy of any document not in the electronic case file with the pre-hearing conference statement, which the insurance carrier had in its possession or could reasonably have obtained, shall constitute a waiver of the right to call such witness or introduce such document in the case. There shall be no waiver if the Workers' Compensation Law Judge finds, based on the affidavit of the insurance carrier's legal representative (or if the insurance carrier does not have a legal representative, then by the insurance carrier), that the conduct at issue was due to good cause and the insurance carrier exercised good faith and due diligence.

The pre-hearing conference shall be held within thirty days of the filing of a notice of controversy and a medical report referencing an injury, and shall proceed as described herein.

At the pre-hearing conference, the Workers' Compensation Law Judge may take appropriate action with respect to the following:
(1)       confirmation that all forms necessary to resolve the controversy, including medical reports except IME Reports, have been filed with the Board and served upon all other parties and a verification from the parties that all information thereon is accurate;
(2)       addition of any other necessary parties;
(3)       simplification and limitation of factual and legal issues;
(4)       stipulations by the parties;
(5)       presentation of a list of proposed witnesses;
(6)       settlement or other disposition of the case;
(7)       confirmation that the parties have conferred in a good faith effort to settle or otherwise resolve the case; and
(8)       scheduling any hearings or submission of testimony by deposition as to the resolution of disputed threshold issues.

At the pre-hearing conference, the Workers' Compensation Law Judge shall:
(1)       obtain the names and addresses of all health care providers who rendered treatment for a previous injury to the same body part or similar illness to the one claimed in the controverted workers' compensation claim and direct, if necessary, the claimant to sign the appropriate limited medical release;
(2)       if the insurance carrier requested a broader release for medical records than that set forth in section 300.37 (b) (1) (iii) of this Part, hear arguments from all parties as to whether the request should or should not be granted, render a decision and if the decision is to grant the request, direct the claimant to sign the appropriate broader release; and
(3)       determine if there are any prior workers' compensation claims and direct, if necessary, the claimant to sign the prescribed authorization pursuant to Workers' Compensation Law section 110-a.

If the insurance carrier requests an opportunity to have the claimant examined by an independent medical examiner, the IME Report must be completed, filed and served in accordance with Workers' Compensation Law sections 13-b (4) and 137 and section 300.2 (d) of this Part at least three days before the date set by the Workers' Compensation Law Judge for the Initial Expedited Hearing. If the claimant will not testify and no other lay testimony will be taken so an Initial Expedited Hearing will not be scheduled, the Workers' Compensation Law Judge shall set a date that is no more than thirty days after the pre-hearing conference for the IME Report to be filed and served. The failure to file and serve the IME Report by such date shall be a waiver of the insurance carrier's right to examine the claimant and to have filed on its behalf or otherwise have considered an IME Report on the threshold issue of causal relationship, unless the insurance carrier makes a showing of good cause for such failure, and that it acted in good faith and with due diligence. The showing must be made by an affidavit by the insurance carrier or if represented, by its legal representative. Good cause shall include, but not be limited to, the inability to obtain medical records in advance of the hearing or the failure of the claimant to appear for an independent medical exam.

The Workers' Compensation Law Judge shall issue a decision stating all determinations, directions and orders made at the pre-hearing conference.

If the insurance carrier or its legal representative fails to appear, a Workers' Compensation Law Judge will render a decision based upon the evidence contained in the Board file. The insurance carrier will be deemed to have waived its right to have an IME Report considered on the issue of causal relationship and to cross-examine the medical providers who have treated the claimant. The foregoing is subject to the insurance carrier making the required showing for an adjournment pursuant to subsection (j) of this section.

Within thirty days following a pre-hearing conference at which the claimant is represented, the Workers' Compensation Law Judge shall hold an Initial Expedited Hearing at which testimony of the claimant and all other lay witnesses shall be taken and recorded. If a party's witness does not appear, then the party shall have waived the right to have the witness testify in-person or by deposition, unless the party makes a showing of good cause that he or she should be granted additional time, and that he or she acted with good faith and due diligence.

All IME Reports shall be filed and served pursuant to Workers' Compensation Law section 137(1)(a) and section 300.2(d)(11) of this Part no later than three days before the date of the Initial Expedited Hearing as provided in subdivision (g)(8) of this section. Failure to timely file and serve an IME Report in a controverted claim shall be a waiver of the insurance carrier's right to examine the claimant and to have filed on its behalf or otherwise have considered an IME Report on the issue of casual relationship, unless the insurance carrier makes a showing of good cause that it should be granted additional time, and that it acted in good faith and with due diligence.

When the close of evidence occurs at a hearing, the Workers' Compensation Law Judge shall advise the parties, on the record, of his or her decision, including the reasons and evidence supporting the decision, and that a notice of decision will be sent after the close of the hearing. If the Workers' Compensation Law Judge determines on the record that there are extensive and complicated factual determinations or novel and important questions of law, then the written decision shall be issued within five business days of the hearing.

Investigatory Powers

See section regarding procedure.

Reasoned Decision

In controverted claims the Workers' Compensation Law Judge shall make a [brief summary of the] reasoned decision upon the contested points. This decision, outlining the evidence supporting said determination, may be made by an oral statement [of findings upon the essential points, which statement] which shall be entered upon the [stenographic] minutes of the hearings, or may be in a [brief] written and signed statement which shall be filed with the papers in the record.

Workers’ Compensation Appeal Board

Either side may seek administrative review of the decision within 30 days of the filing of the Judge's decision. This is done by applying in writing for Board review. A panel of three Board Members will review the case. This panel may affirm, modify or rescind the Judge's decision, or restore the case to the calendar for further development of the record. In the event the panel is not unanimous, any interested party may make application in writing for mandatory review of the full Board. The full Board must review and either affirm, modify or rescind such decision. In addition, following a unanimous decision of the Board panel, a party may file an application for discretionary full Board review. The application for discretionary full Board review will either be denied by the Board or, when warranted, the Board panel decision may be rescinded by resolution of the full Board. When the original Board panel decision is rescinded a new panel decision will be issued.

General Rule

When seeking administrative review, the carrier does not pay for any contested weekly benefits while the claim is being reviewed by a Board Panel (WCL §23). The carrier must pay any portion of the award that is not the subject of dispute. For example if the carrier concedes that the employee has a mild disability and the WCLJ found the disability was total, the carrier must pay the employee at the mild rate while it seeks administrative review of the finding of total disability. When the carrier does not concede any liability, then the entire WCLJ award is stayed pending administrative review by the Board panel.

Scope of Review of WCAB

See Above

Original Jurisdiction

Not applicable

Commonwealth Court and Supreme Court

Jurisdiction

See Above

Appeal to Supreme Court

Appeals of Board Panel decisions may be taken to the Appellate Division, Third Department, Supreme Court of the State of New York, within 30 days (WCL §23). The decision of the Appellate Division may be appealed to the Court of Appeals. Following administrative review, the carrier must make any payment of compensation and physician's bills directed by the Board Panel, even if an application for discretionary full Board review and/or an appeal is made to the Appellate Division. (Lehsten v. NACM, 93 NY2d 368 [1999]).

SETTLEMENT

General Rule

Under Section 32 of the WCL, parties may enter into a binding agreement settling upon and determining the compensation and other benefits due to the claimant. If approved by the Board, the settlement is binding on all the parties and not subject to appeal. Section 32 agreements can expedite the adjudication of issues or entire claims, while assuring the rights of the claimant and all other parties.

Another method to settle a claim is the Board's WISK Program (Walk-In Stipulation Calendar). When interested parties wish to settle matters quickly and equitably, the WISK program allows them to stipulate to certain findings and resolve claims. Upon reaching agreements, the parties may request time on the WISK to seek approval of the agreed upon terms from a Judge.

A third option of settling a claim is through a lump-sum settlement, which allows the parties to agree to a lump-sum amount to be paid to the claimant. A lump-sum settlement is considered closed unless there is a change in the claimant's condition that was not contemplated at the time of the agreement.

Alternative Dispute Resolution

WCL § 25(2-c)(a) provides that for the purposes of employments classified under Sections 220, 240, and 241 of the Labor Law, an employer and a recognized or certified exclusive bargaining representative of its employees may include within their collective bargaining agreement provisions to establish an alternative dispute resolution system to resolve any claims arising under this chapter.

By Chapter 491 of the Laws of 1995 and extended until December 30, 2005 (Chap. 464 of the Laws of 1999) the legislature amended Workers' Compensation Law §25 to permit, by negotiated labor agreement, a non- WCB arbitration and/or mediation claim process for employers and employees in the unionized construction industry. As a result, there are now four operating workers' compensation alternative dispute resolution ("ADR") programs in New York State.

It is important for ADR-1s to be filed promptly and at the same time as C-2 accident reports so the Board can quickly identify and separate ADR cases from traditional WCB claim processes. The ADR-1 is the initial and primary indicator that a particular claim is an ADR claim and needs to be segregated from non-ADR workers' compensation claim processing. In the absence of an ADR-1, Board personnel might assume a case is a "regular" compensation case and process the case accordingly. This can result in an ADR case being adjudicated by the Board in the traditional fashion, which defeats the purpose of the alternative dispute resolution process and may cause additional, unnecessary work for corrective action.

Informal Settlement Conferences

Settlement cans be discussed informally between representatives. Settlements must be approved by the board.

Compromise and Release

See above.

INSURANCE

General Rule

Virtually all employers in New York State must provide workers’ compensation coverage for their employees (WCL §2 and 3). In New York, the New York State Insurance Department, is directly responsible for authorizing insurance carriers to write New York State workers’ compensation insurance policies. Insurers are comprised of private insurance carriers, the State Insurance Fund, self-insured employers and employers that are participating in group self-insurance.

General Rule Where Employer is Uninsured

The law requires employers operating in New York State to have workers’ compensation coverage for their employees, with limited exceptions. Employers are required to obtain and keep in effect workers’ compensation coverage for all employees, even part-time employees and family members that are employed by the company. Section 26-a says an employer is liable for a penalty of $1,000 per 10-day period of noncompliance, plus the actual award (including both compensation and medical costs), plus any other penalties the Board assesses for noncompliance. In cases involving severely injured employees, the medical costs alone could be in the hundreds of thousands of dollars per injury.

Section 52 [1] (a) of the Workers’ Compensation Law provides that a failure to secure the payment of compensation for five or less employees within a 12 month period shall constitute a misdemeanor punishable by a fine of not less than $1,000 nor more than $5,000. Failure to secure the payment of compensation for more than five employees within a 12 month period shall constitute a class E felony punishable by a fine of not less than $5,000 nor more than $50,000 and is in addition to any other penalties otherwise provided by law. Where any person has previously been convicted of a failure to secure the payment of compensation within the preceding five years, upon conviction for a subsequent violation such person shall be guilty of a class D felony, fined not less than $10,000 nor more than $50,000 and is in addition to any other penalties including fines otherwise provided by aw. Cases investigated by the Board are referred to the Attorney General and the local district attorney’s offices for prosecution.

Damages by Action at Law Where Employer is Uninsured

An uninsured employer is responsible for obtaining and paying for any legal representation required to defend against a workers’ compensation claim. (An insured employer’s workers’ compensation insurance carrier provides such representation as part of the workers’ compensation insurance policy’s coverage.) An uninsured employer can be directly sued by an injured employee. (WCL §11). In most cases, an employer’s workers’ compensation insurance is the sole recourse for the employer’s injured employees. An uninsured employer is responsible for all wage and medical benefits awarded to anyone ruled to be their employee. There is no cap on these benefits in New York.

Uninsured Employers Guaranty Fund

If an employee is hurt when there is no workers’ compensation policy in effect and that employee chooses to file a workers’ compensation claim, the employer will be liable for the actual cost of medical care and compensation payments, in addition to penalties. If a corporation has failed to secure workers’ compensation coverage, the president, secretary and treasurer of a corporation are personally liable for the medical care, compensation payments, penalties and possible criminal prosecution. See WCL §26-a. The New York State Workers’ Compensation Board’s Bureau of Compliance oversees uninsured claims. The Uninsured Employers Fund (UEF) is the funding mechanism for compensation and medical payments to injured employees whose employer was not properly insured at the time of the accident. These claims are processed by staff, who collect all evidence, prepare the claim for hearings and administer the payment of all compensation and medical benefits. The Bureau also has a team of lawyers to represent the UEF at Workers’ Compensation Board hearings.