Education

Dear Client,

On Jan. 21, 2026, the New York Workers’ Compensation Board (The Board) issued proposed changes to its regulations governing medical depositions. These proposed changes are currently open for public comment at regulations@wcb.ny.gov through March 22, 2026.

While many of the proposed changes formalize existing practice, several provisions will meaningfully impact litigation strategy, evidentiary expectations and how medical disputes are evaluated by Workers’ Compensation Law Judges.

To help you navigate these proposed changes, we have compiled a summary below, followed by insights from Jones Jones LLC for employers, carriers, third party administrators (TPAs) and self-insureds to consider.

The Changes:

12 NYCRR §300.10(c) – Adjournments for Medical Cross-Examination

• Law Judges may, but are not required to, grant adjournments, or temporary postponements, to produce a treating physician for cross-examination.
• Any denial of an adjournment by the law judge must be explained on the record.
• Additional adjournments may only be called if the law judge finds sufficient excuse for the physician’s original non-appearance and are conditioned on subpoena use.
• If the physician ultimately does not appear, the case will generally proceed on the existing record absent extraordinary circumstances.
• Responsibility for enforcing subpoenas rests squarely with the employer/carrier.

12 NYCRR §300.10(e) – Responsibility for Depositions (New Section)

• Regardless of which party requests a deposition, the employer/carrier is responsible for:
  • Securing the medical witness
  • Issuing subpoenas if necessary
  • Retaining and paying the stenographer
  • Filing and serving deposition transcripts
  • Bearing all deposition-related costs

In practice, this largely reflects what defense counsel already does, but it formally allocates responsibility in the regulations. We urge all clients to review their current deposition process to assess and adjust for any cost increases.

12 NYCRR §300.10(f) – Extensions for Deposition Transcripts (New Section)

• Extensions must be requested in writing, on or before the deadline, and in a Board-prescribed format.

This appears to be the current common practice among stakeholders as it stands now.

12 NYCRR §§301.1 and 301.3 – Medical Witness Fees

• Deposition fees for physicians and other medical providers will increase significantly, particularly if not paid within 45 days.
• Unpaid fees accrue interest in the same manner as unpaid medical bills.
• These provisions heighten the importance of timely payment and accurate fee processing.

What Jones Jones Clients Should Consider

While the proposed changes do not dramatically shift who performs deposition logistics, if passed, these changes will alter the litigation environment for medical disputes. Some key insights employers, carriers, third party administrators (TPAs) and self-insureds should consider include:

1. Increased Strategic Importance of Cross-Examination: Judges may feel more comfortable proceeding on the existing record when treating physicians are not available. As a result, defense counsel will need to make more deliberate, earlier decisions about when cross-examination of treating providers is necessary—and be prepared to explain those decisions on the record.

 

1. Independent Medical Examination (IME) Quality Will Matter More: Independent medical examinations (IMEs) will increasingly need to stand on their own when treating doctors are not cross examined. Reports should be thorough, well-reasoned and directly address treating opinions, causation and credibility. Conclusory or formulaic IMEs will be more vulnerable under this framework.

 

1. Greater Scrutiny of Unrebutted Treating Opinions:Where no cross-examination occurs, there is a heightened risk unrebutted treating opinions will carry more weight. This places increased pressure on the defense to ensure the evidentiary record is sufficiently developed.

 

1. Consistency in Judicial Application Will Be Critical:The proposed rules create discretion for judges. Predictability and fairness will depend on consistent application, particularly regarding when cross-examination is expected and when IME evidence alone is sufficient.

 

How Jones Jones can Help

If you are in need of assistance in drafting a response, please contact us at concierge@jonesjones.com and an attorney will be in touch to coordinate draft comments on your behalf.

For more information on the proposed changes, please visit the Board’s webpage. If you have additional questions about how these proposed changes may impact you, please contact us at concierge@jonesjones.com.

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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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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