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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.  

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.  

 

• Updated WCMSA Reference Guide: As of January 16, 2025, the Update Workers’ Compensation Medicare Set Aside Reference Guide (WCMSA Reference Guide version 4.2) is now available: https://www.cms.gov/medicare/coordination-benefits-recovery/workers-comp-set-aside-arrangements.  

 

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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The New York State Workers’ Compensation Board has provided an update on the December 2024 Mental injury legislation, providing clarity for employers, insurers, and legal counsel alike on the interpretation of extraordinary work-related stress. For context, on December 6, 2024, Governor Hochul signed legislation amending Section 10 of the Workers’ Compensation Law (WCL) with respect to claims for mental injuries resulting from work-related stress, subject to a chapter amendment agreed to by the Legislature and the Governor (Laws of New York, 2024, Chapter 546, Approval Memorandum 21 [enacting S6635/A5745]).

On February 14, 2025, the Governor signed a chapter amendment (Laws of New York, 2025, Chapter 79 [enacting S755/L1677]). The amendment says that covered employees must demonstrate that the mental disorder arose out of extraordinary work-related stress attributable to a distinct work-related event or events directly related to the employment and occurring during the performance of the employee’s job duties.

The new amendment will take effect June 4, 2025.

What this Means for Employers and Insurers

The key in this new amendment is the word extraordinary. Defining what constitutes extraordinary will come down to each case or judge and cannot be definitively determined until litigation begins in June. The same can be said for the word distinct when referring to distinct work-related events or an event. While the definition and impact of these terms won’t be clarified until June, there are other impacts that these amendments bring, including:

• The amendments to WCL § 10 in S6635/A5745 were superseded by the chapter amendment signed on February 14, 2025 (S755/L1677) and are no longer in effect.
• The amendments to WCL § 10 in S755/L1677 that go into effect on June 4, 2025, will apply to all pending claims, regardless of the date of accident.
• Prior to June 4, 2025, pending claims will be decided based on existing law.

Of note, a new paragraph (c) will be added to subdivision (3) of WCL § 10, providing:

(c) The board may not disallow a claim by a covered employee upon a factual finding that the stress was not greater than that which usually occurs in the normal work environment where a claim for post-traumatic stress disorder (PTSD), acute stress disorder or major depressive disorder resulting from work-related stress is filed upon submission of medical evidence based on the criteria contained in the version of the Diagnostic and Statistical Manual of Mental Disorders in effect on the date of accident, or as otherwise adopted by the board, provided that such adoption shall be no more stringent than the current or immediately preceding version of the Diagnostic and Statistical Manual of Mental Disorders. Such covered employee must demonstrate that such disorder arose out of extraordinary work-related stress attributable to a distinct work-related event or events directly related to the employment and occurring during the performance of the employee’s job duties.

What Jones Jones is Doing

Jones Jones will continue to monitor New York State Workers’ Compensation Law for additional updates, as well as work closely with legislators, judges, clients and others to clarify how the term work-related stress is now interpreted. We will also continue to closely watch any upcoming mental injury workers’ compensation cases or decisions made on mental health injuries to prepare for the potential influx of newly filed claims.

For more information on this new legislation, please visit the New York State website. If you have questions about how this new legislation may impact you, or if you have a mental injury connected to extraordinary work-related stress claim, please contact us at clientservices@jonesjonesllc.com

The legislation signed by New York Governor @Kathy Hochul on Dec. 6 and a February 14 amendment are set to take effect June 4, 2025, amending Section 10 of the Workers’ Compensation Law (WCL) with respect to claims for mental injuries resulting from work-related stress. Jones Jones will continue to monitor the NYSWCB for additional updates and prepare to take necessary action for the potential influx of newly filed claims.

 

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