Education

New York Governor Kathy Hochul recently signed new legislation allowing any New York worker to file for workers’ compensation for specific types of mental injury connected to extraordinary work-related stress. Bill S.6635/A.5745 expands an existing law enacted in 2017 which allowed for only first responders facing post-traumatic stress disorder (PTSD) to file for such benefits.

The new law will take effect on Jan. 1, 2025.

What this Means for Insurers

New York workers will experience expanded access to mental health benefits regarding work-related stress. This also means state insurers and employers can expect to see an increase in work-related stress claims as more employees file for coverage. Resulting cost increases in response to related claims and the burden of proof for work-related stress claims will likely also transfer to the employer.

Action by Jones Jones

As this new legislation takes effect, Jones Jones expects there to be an increase in related mental health claims. In anticipation of a surge of new claims, Jones Jones will closely monitor any changes related to the new law and any other changes that may come about because of this legislation. We will also closely watch any upcoming mental injury cases or decisions made on mental health injury cases to prepare for the influx of newly filed claims.

This development creates a new world for the workers’ compensation industry in New York. While we don’t know exactly how these new claims will shape future litigation, we can and will look to other states, such as Connecticut, with similar laws that may provide guidance. Regardless, Jones Jones will continue to provide the same level of excellence, experience, innovation and efficiency we have delivered for more than 100 years.

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

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The Jones Jones construction team is pleased to share that to resolve confusion around Employee Claims (Form C-3) and reduce delays in cases where the identity of the proper employer or insurance payer is not immediately known, the New York State Workers’ Compensation Board (the Board) has created a new process to be used when the employer and payer are in dispute.

The New Procedure

Henceforth, when a complete C-3 form is filed, the law judge will direct the scheduling of a subsequent hearing, moving such claims forward more quickly.

While law judges currently direct the filing of a C-3 form at a hearing to collect data and move the form forward, a large percentage of all pre-hearing conferences were placed in “No Further Action (NFA)” status in 2023 due to the failure to file a complete C-3 form. Law judges directing the filing of a C-3 form prior to a hearing will ensure claimants and their legal representatives file the complete C-3 form with the Board.

Key Information and Filings

In claims where the proper employer and insurance payer are in dispute, certain information will be critical. Important information on the C-3 form includes:

• Field B-1: The name of the employer or as much of it that is known
• Field B-6: The full name of the person who hired the claimant or as much of it that is known
• Field D-3: The full address where the accident occurred
• Field D-5: A detailed description of the claimant’s work at the time of injury

Additional information important to determining the identity of the proper employer and insurance payer include:

• Form PH-16.2: The Pre-hearing Conference Statement must be completed and include any evidence relevant to the identification of the proper employer such as:
  • Pay stubs,
  • Phone numbers,
  • Text messages, etc.
• Form MV-104 (NYS DMV Report of Motor Vehicle Accident): If the work-related injury was the result of a motor vehicle accident this form must be presented to the Board if the case is controverted on the issue of whether the injury occurred in the course of employment.

Questions of Liability

When compensation is withheld solely because a controversy exists on the question of liability as between carriers, the Board may direct that any carrier shall immediately pay compensation, without prejudice, pending further development of the record on the issue of the proper carrier (see WCL Section 25[1][f]). Due to this it will be in the best interest of carriers to cooperate with the full extent of the Board’s efforts to determine the proper employer in a case.

What Jones Jones is doing:

To best cooperate with the Board and expedite all claims where the identity of the proper employer or insurance payer is not immediately known, Jones Jones will work to have any hearing that is scheduled without a properly filed C-3 closed with no hearing. Additionally, our PH16.2 team, led by Partner Stacee Vaikness will thoroughly review all C-3 forms for proper information and will contact the board to seek cancellation of any improperly set hearings.

The cancellation of hearings with improperly filed C-3 forms or inaccurate information will help move properly filed C-3 form hearings forward. Excellence is one of the four tenets we live by at Jones Jones, and we strive to have that excellence present in every aspect of every case we work, including the details of forms filed, such as the C-3. We will work to ensure every C-3 form filed and subsequent hearing moves as efficiently as possible by confirming all the necessary information is present.

For more information on this new process, please visit the Board’s webpage. If you have questions about how this new procedure may impact you, or if you have a case where the identity of the proper employer or insurance payer is not immediately known, please contact us at clientservices@jonesjonesllc.com

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In May, 2024 the New York State Workers’ Compensation Board (the Board) issued a Subject Number (Subject Number 046-1683 Additional Criteria for Section 32 Waiver Agreements Reviewed Without a Hearing) which announced that beginning on July 1, 2024 the Board would use the desk review process to administratively review all Section 32 waiver agreements of represented claimants in which the gross settlement amount was $10,000 or less.

On Nov. 14, the Board announced that due to the success of the desk review expansion, the Board is further expanding the reach of the desk review to include all Section 32 waiver agreements of represented claimants in which the gross settlement amount is $25,000 or less. This further expansion will start with agreements dated on or after Jan. 6, 2025.

The Board cites its decision to further expand the desk review because of expedited processing, with three times the number of Section 32 waiver agreements processed since the original expansion. Additionally, the original expansion resulted in a reduction in the time it takes to approve all Section 32 waiver agreements.

The decision to further expand the administrative desk review will help clients seeking decisions on Section 32 waiver agreements. Since the expansion, Jones Jones has experienced desk decisions coming out several weeks faster than hearing approvals. This timeline is faster than waiting for a Section 32 approval hearing. Additionally, the Board’s desk review is a thorough review process that also allows for efficiency and will allow hearings to be held sooner when they are necessary.

For more information on Section 32 waiver agreements please visit: https://www.wcb.ny.gov/Section32/section32_waiver-agreements-guidance.jsp. If you have a Section 32 waiver agreement scenario that you need help with, or if you have questions about how this decision may impact you, please contact us at clientservices@jonesjonesllc.com

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From the Desk of Managing Partner Sarah Thomas 

The New York State Workers’ Compensation Board (Board) has announced that starting in December 2024 they will begin using a new procedure to expedite claims for additional sites of injury and consequential injuries.  

This means if the board receives a Request for Further Action by Legal Counsel (Form RFA-1LC) presenting prima facie medical evidence (PFME) for an unestablished injury or condition, they will expedite a determination by issuing a Proposed Decision finding PFME.  

Next Steps for Insurers 

Unless the insurer contends the finding of PFME was made in error, there should be no objection to the Proposed Decision.  

Within 30 days of the Proposed Decision, the insurer should:  

• If accepting the new body part or condition: Notify the Board by filing a FROI-02. 
• If not accepting the new body part or condition: Proceed with development of the record by: 
• Obtaining an independent medical examination (IME) within 60 days; or 
• Waiving the IME and cross-examining the claimant’s health care provider within 60 days. 

What this Means for Insurers 

With this new procedure it will be more important than ever for carriers, third party administrators (TPAs) and self-insured employers to monitor their proposed decisions and respond in a timely manner. The turnaround period on these decisions is tight. Any delay could result in your acceptance or rejection of the decision not taking.  

Similarly, a timely IME will be important. The turnaround period is just 60 days. With that in mind, work with your IME doctor to ensure they only comment on exactly what PFME you are agreeing to and nothing else.  

Finally, before filing a Request for Further Action by Legal Counsel (Form RFA-1LC) with PFME, it will be important to review the PFME for any issues. Issues to look for include red flags such as undisclosed prior injuries. Such issues should be investigated by way of medical canvass and other investigative means and explained or resolved before filing Form RFA-1LC.  

Next Steps for The Board 

Once the Proposed Decision is finalized, the Board will determine next steps, which may include:  

• A Proposed Decision establishing the injury/condition   
• A Reserved Decision (if the record is complete)   
• A Proposed Decision directing depositions (if there is a joined issue)   
• A hearing for additional development of the record and a bench decision   

Steps Jones Jones is Taking 

 In additional sites of injury and consequential injuries cases, testimony of a claimant is key. Each case is unique and not every issue is a straight medical issue. Jones Jones understands the complexity of such cases and will be working to ensure we have the space to address such issues before the board. In all cases we will work to question the claimant about the alleged consequential injuries. This includes situations where we move forward with producing an IME in response to a Proposed Decision.  

For more information on this new claim conciliation procedure, please visit the Board’s Representatives webpage. If you have questions about how this new procedure may impact you, please contact us at clientservices@jonesjones.com.  

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