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Major Win Alert: Jones Jones Rebuts Administrative Review

Jones Jones LLC congratulates Associate Kevin Moy and his team on successfully rebutting an administrative review of a Workers’ Compensation Law Judge (WCLJ) decision.  

 

In this case, the claim was previously established for injuries involving the claimant’s right wrist and hand, both knees, right foot and right shoulder. Two independent medical examiners (IMEs) assessed the claimant. The first IME evaluated the claimant in 2022, and after several visits examining the injuries, conducted a permanency exam assessing 70% SLU of the right shoulder.  

 

In a deposition facilitated by Jones Jones Associate Samantha Sokoloff, the IME noted the claimant’s extreme range of motion deficits due to forgoing surgery to the right shoulder, and inflammation that waxes and wanes with the weather influenced their assessment. A second IME later examined the claimant and assessed a 20% SLU of the right arm, and 10% SLU of the left leg. The WCLJ deemed the second IME more credible, and their assessment was used in the deliberation.  

 

In its application for administrative review, the claimant argued the WCLJ had erred in deeming the first IME’s testimony as less credible. Moy and his team contended the WCLJ’s decision should be affirmed as the first IME’s findings were inconsistent due to basing their assessment on the claimant’s range of motion changing day to day and did not consider that the claimant had previously returned to work without restriction before gaining an additional injury. The team also shared that the first IME had included consideration of mild abnormalities in internal/external rotations in his original opinion, conflicting with Chapter 5.4 under the 2018 impairment guidelines, which states these considerations should not be added to avoid cumulative values.  

 

Moy and his team’s extensive research, along with Sokoloff’s thorough questioning, secured an affirmation from the Board on the WCLJ’s original decision. If you require assistance with a workers’ compensation case, please contact our appellate team at concierge@jonesjonesllc.com.  

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Body Creep: Are Your Claims at Risk?  

Dear Valued Clients, 

Many of you have shared with us your continued challenges with body creep in the construction space. In response to this challenge, we are pleased to share the following information on mitigating body creep within the court system.  

What is Body Creep? 

Body creep is a phenomenon that occurs in workers’ compensation when a case is subject to attempted body part expansions. After filing an initial workers’ compensation claim, the plaintiff or the plaintiff’s attorney, will file for additions to be included in the claim. These additions expand on and escalate the initial injury, seeking to relate subsequent symptoms or injuries requiring medical treatment to the claimant and increase compensation through ties to related general liability claims.  

Why is This an Issue in Construction? 

In New York state, when there is an accident on a construction job site, two types of claims can arise. The first type of claim is a workers’ compensation claim, which provides for lost wages and ensures the injured party receives treatment. The second type of potential case is a general liability (GL) claim. With a GL claim, there are several issues a plaintiff can pursue, including but not limited to: 

  • Pain and suffering 
  • Bodily injury 
  • Property damage  
  • Repair costs and legal fees 

Because GL claims involve more issues, there is more potential for exposure and damage to the employer. The complexity of GL cases related to workers’ compensation claims in construction also means they take longer to settle and typically settle for more.  

In summary: when a workers’ compensation case in construction is subject to body creep, the case almost always becomes more complicated and costly for the employer and insurer. 

How to Spot Body Creep 

A key indicator of body creep impacting a workers’ compensation case would be inconsistencies in the claimant’s report. Inconsistencies to look for include:  

  • Shifting timelines 
  • Injuries or body parts added to the injury report after-the-fact 
  • Changes to the story regarding the mechanism of injury 
  • Missing or altered medical reports 

Any change or shift the plaintiff or their attorney makes to the claim or their testimony throughout the case should trigger concern for body creep. Because body creep can sneak up on a case quickly, attention to detail is vital when defending such a case. Attorneys who focus on report documentation and detail will be better positioned to defend against body creep. 

Mitigating Body Creep 

Identifying when a case is susceptible to body creep is only the first step in mitigating or minimizing this possibility in a case. Fortunately, there are other tactics construction owners, risk managers and attorneys can use, including: 

  • Documentation: When consulting with your attorney about a workers’ compensation case, provide them with documents such as the initial investigation report, onsite medical report, witness statements, investigation materials, videos/photos from the scene and the claimant’s initial recorded statement. Having documentation from every step of the process will allow your defense to recognize changes and inconsistencies that could lead to body creep.
    Similarly for attorneys, it is important to document every change and inconsistency that occurs after gathering the initial reports. This documentation allows you to provide a judge with tangible evidence that changes were made. 
  • Collaboration: It is vital to connect your workers’ compensation and GL attorneys quickly if you suspect body creep. While a workers’ compensation attorney may not be familiar with your GL case, cross collaboration is important for a strong defense. Your workers’ compensation attorney may have insights into the situation that your GL attorney may not have and vice versa. By connecting the two parties, you are expanding your resources to defend the case. 
  • Patience: Construction owners or insurers may be tempted to proactively secure an opinion on additional sites from an independent medical examiner (IME) as soon as those sites are added to the case. This has the potential to backfire. For example, if a claimant adds body sites to a case and a carrier gets an IME on the causal relationship before the Prima Facie Medical Evidence (PFME) finding has been shared, and the IME finds a causal relationship, it can make it difficult to make any other arguments finding the additional site not causally related. In this scenario, it is best to wait for specific directions from the judge requiring an IME.  
  • Safety First: Construction site safety is the best way to minimize the risk of body creep as well as any workers’ compensation claims. If a site is safe and employees are properly trained and fitted with PPE, there is less risk of injury or workers’ compensation claims, including those susceptible to body creep. 

While accidents and subsequent claims are not completely avoidable, identifying cases that could be open to body creep and taking the steps above to prepare and defend against this phenomenon can help save construction owners and their insurers from costly and complicated cases.  

Our goal at Jones Jones is to continually improve and provide you, our clients, with additional support and resources each day. This information sheet is one of the many ways we work to put you first. If you have questions about body creep, or if you are facing a workers’ compensation claim you are concerned may involve body creep, please connect with Managing Partner Sarah Thomas at sthomas@jonesjonesllc.com.  

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Major Win Alert: Jones Jones Secures Reversal

Jones Jones LLC congratulates Associate Diane Mandleur on successfully reversing a decision regarding restarting and continuing awards in front of the New York State Workers’ Compensation Board.

In this case, the claim previously established injuries to the claimant’s left ankle and foot with a temporary moderate degree of disability. The claimant’s podiatrist later stated the claimant had 100% degree of disability. In a later hearing, the workers’ compensation law judge (WCLJ) directed the claimant to submit proof of labor market attachment, such as job applications, due to concern from the self-insured employer (SIE) . The WCLJ determined the claimant had provided sufficient proof of labor market attachment and awarded benefits for the corresponding period of time.

 

When appealing the decision, Mandleur researched each individual job posting submitted by the claimant and calculated the distance and time it would theoretically take them to get to work. Of the 96 job applications filed, 71 of the locations were at least 45 minutes from their home with numerous employers an hour and a half away. This distance would make it difficult for the claimant to work these jobs as they do not have a car or drive.

 

Additionally, the claimant did not participate in reemployment services or vocational programs that qualify as displaying labor market reattachment under American Axle. As a result, the WCLJ found that the record did not support a finding of a good-faith job search in support of continuing awards.

 

Mandleur’s diligent research and close attention to detail secured a reversal of the decision. If you are in need of assistance with a worker’s compensation case, please contact our appellate team at clientservices@jonesjonesllc.com.

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NY Governor Announces Legislative Updates Expanding Workers’ Access to Medical Treatment

New York Governor Kathy Hochul recently announced four legislative proposals aimed at improving access to timely, high-quality medical treatments for injured workers. The proposals would provide workers with the ability to choose their own medical provider when seeking treatment for a work-related injury.

 

The first two proposals would universally authorize all eligible health care providers, including resident and fellow physicians under supervision, to treat patients seeking treatment related to workers’ compensation claims. The third proposal would focus on making increased access to providers more enticing for all parties with additional language aimed at reducing delays in treatment for workers.

 

Details on these proposed changes can be found on the New York State website.

 

What this Means for Employers and Insurers

 

With these new proposals, there will be more treatment options available to injured workers. In expanding provider access, claimants can find nearby treatment and avoid a delay that could worsen the initial injury. Injured workers will likely receive more timely treatment, leading to a faster return to work.

 

Finally, this expansion of access to medical treatment may make it more difficult for individuals who misuse the system. Under a proposed amendment insurers will have up to a year to admit liability while covering the cost for medical treatments.

 

Steps Jones Jones is Taking

As these changes take place, Jones Jones will closely monitor the cost of medical treatment related to workers’ compensation claims to determine the impact of Governor Hochul’s proposal. Jones Jones remains committed to achieving excellence on behalf of our clients, including monitoring for legislative changes that could impact the state of the workers’ compensation industry, such as those proposed by Governor Hochul.

 

If you have questions about how this new proposal may impact you, please contact us at clientservices@jonesjones.com.

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CMS Updates Pertaining to WCMSAs and Section 111 Reporting

FROM THE DESK OF MANAGING PARTNER SARAH THOMAS 

 

Dear Valued Clients, 

 

Jones Jones is aware the Centers for Medicare & Medicaid Services (CMS) will be implementing changes to impacting Workers’ Compensation Medicare Set-Aside Arrangements (WCMSAs) in the first half of 2025. These changes are based on a review of the current WCMSA guidance and feedback from the WCMSA community.  

 

The changes being implemented in 2025 are as follows: 

 

  • Expanded Section 111 Reporting Requirements: Effective April 4, 2025, CMS has begun requiring Section 111 reporting for WCMSAs involving Medicare beneficiaries. If a claimant is a Medicare beneficiary, details of the settlement must be reported to CMS, including on claims involving a $0 WCMSA, and settlements below $25k.  

 

  • Amended Reviews: Effective April 7, 2025, amended review requests will be allowed at any time after a WCMSA case is approved. This is a change from the prior amended review request process which requires a one-year waiting period after a WCMSA case has been approved. 

 

  • Zero-Dollar Set-Asides: Effective July 17, 2025, CMS will no longer accept or review WCMSA proposals with a zero-dollar allocation. Entities should still consider the parameters available in the WCMSA Reference Guide to determine whether a zero-dollar WCMSA allocation is appropriate and should maintain documentation to support that allocation.  

 

 

What This Means for our Clients 

 

The upcoming changes will have an impact for insurance carriers and their insureds. The changes outlined above will have the following effect:  

 

  • CMS will have unprecedented visibility into the facts of a full and final settlement involving a Medicare beneficiary, including on claims that do not meet the $25k threshold for CMS approval.  
  • If an individual’s medical situation has changed, or if they have had a significant surgical procedure that was originally included by the CMS, parties can now apply for amended review as soon as the case is approved.  

 

  • If CMS approved a medical set aside that was otherwise untenable, an insurance carrier can now submit for amended review to get the set aside reduced more quickly.  

 

 

The changes outlined above will reduce delays in securing final settlements and will facilitate more settlements in general, increasing the potential for cost savings and positive outcomes.  

 

Steps Jones Jones is Taking 

 

At Jones Jones, we work to communicate all changes from legislative and government administration bodies that may impact our clients. We are prepared to take action in response to ensure compliance and cost-savings to our clients. 

 

As a result of the upcoming WCMSA changes, a team of Jones Jones’ attorneys is prepared to: 

 

  • Work with clients to update their settlement protocols to reflect the new Section 111 Reporting Requirements. 

 

  • Assist clients who would like to consider amended review of a medical set aside that previously obtained CMS approval.  

 

  • Review any medical set asides for potential opportunities for cost savings.  

 

We can confer and provide recommendations regarding the new reporting requirements, or the possibility of a WCMSA amended review request, and take appropriate measures. Our goal at Jones Jones is to strive toward excellence each day with you, our clients. Any client who would like to confer regarding the above-mentioned updates should contact clientservices@jonesjonesllc.com. 

 

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