Major Win Alert: Jones Jones Associate and Team Complete Successful Appeal

Please join us in congratulating Jones Jones LLC Associate Kevin Moy and his team on completing a successful appeal before the New York State Workers’ Compensation Board.

 

The claimant in this construction case incurred an injury to their left elbow in 2012 while pulling a heavy pipe. In 2022, the claimant was examined by their orthopedic physician who indicated a loss of range of motion with flexion to 140 degrees and no loss of extension. The orthopedic physician re-examined the claimant stating they had reached maximum medical improvement and that the injury is amenable to a 20% schedule loss of use (SLU) of the left arm.

 

When the carrier’s orthopedic consultant examined the claimant in 2023, they indicated the claimant’s injury resulted in muscle strain. They found that while the claimant’s left elbow did have a loss of range of motion, it was the same range of motion as the right elbow. The carrier’s orthopedic consultant stated the claimant’s injury to the left elbow is amenable to a 0% SLU of the left arm.

 

In 2023, the workers’ compensation Law Judge found the claimant’s left elbow injury is amenable to a 20% SLU of the left arm, granting over $48,000 in compensation, less payments already made and $7,200.00 in attorney’s fees. Later in 2023, the judge awarded 40% SLU of the left arm.

 

Moy and his team argued upon the firm belief that the carrier’s orthopedic consultant was a more credible source than the claimant’s orthopedic physician. The claimant’s legal team attempted to argue for 20% SLU, resulting in a payout of $24,000, and medical reports to remain open. Moy’s team was successful in securing the appeal on the basis that the claimant had no permanent impairment related to the injury and that there was no basis for future treatment, alleviating the need for open medical reports.

 

Moy and his team presented a compelling argument that ultimately awarded our client with the best possible outcome. We applaud the entire team. If you are in need of assistance with a workers’ compensation case, please contact our appellate team at clientservices@jonesjonesllc.com

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Jones Jones Construction Practice: Guidance on NYS WC C-3 and employer identification

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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New York State Workers’ Compensation Board Expands Desk Review for Section 32 Waiver Agreements

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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Major Win Alert: Jones Jones Secures Disallowance of NY Claim with NJ Policy Argument

Jones Jones LLC congratulates Associates Samantha Sharpe, Diandra Archbald and Diane Mandleur, and their team on securing a dismissal of a New York insurance claim under a New Jersey insurance policy.

 

In this case, the claimant alleged that while working for a car transport company, located in Englewood, NJ, they were involved in a motor vehicle accident in Brooklyn. As the claimant was employed in New Jersey, they were insured in New Jersey, however they filed the claim for New York.

 

The claimant testified that on the date of the injury, they were in Brooklyn after picking up a vehicle to bring back to New Jersey. When given the chance to cross-examine the claimant, the Jones Jones team dug deeper into the questions relative to the policy. This resulted in a testimony from the claimant that they were advised upon hire that they would be regularly sent out of New Jersey to pick up cars and would often be sent to different boroughs in New York to pick up cars.

 

Upon further research, our team discovered that the claimant only had New Jersey coverage on their policy. Further, the policy had very specific language dictating that if the insured had business in any other state, they were required to notify the underwriter within 30 days of the inception. The underwriter stated that for this case they were not notified of the New York relationship until after the injury was filed in 2023. As a result, this accident in New York was not covered under the New Jersey policy based on the insured’s failure to notify the underwriter of the true work being performed outside of New Jersey.

 

The Jones Jones team argued that between the claimant’s testimony and the underwriter’s testimony, there was in fact no coverage for New York based on the insured employer’s failure to disclose their business in New York. The Law Judge agreed with the Jones Jones team and found on behalf of the carrier that their New Jersey coverage did not extend to New York based on the insured’s failure to disclose their true dealings in New York and discharged the carrier.

 

Sharpe, Archbald and Mandleur showcased exemplary dedication to finding the right information for the client through their research and cross-examination skills in this case. Well done to the entire team. If you are in need of assistance with a workers’ compensation case, please contact our appellate team at clientservices@jonesjonesllc.com.

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New York State Workers’ Compensation Board Announces New Claim Conciliation Procedure for Additional Sites of Injury and Consequential Injuries

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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