CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
By Ronald E. Weiss, Esq., and Ronald Balter, Esq., co-authors of New York Workers' Compensation Handbook, 2021 Edition (LexisNexis)
The COVID-19 pandemic has wreaked tragic and overwhelming effects on New York State and the nation. The virus hit New York early, and because of its population density, an insufficient supply of personal protective equipment and only an early understanding about how to contain the virus, New York suffered high numbers of infections, hospitalizations and deaths. Front line health care and other essential workers in New York fought the virus tirelessly and valiantly and are the true heroes of 2020. The authors salute these heroes and dedicate this edition of the New York Workers' Compensation Handbook to them.
One of the Governor’s early responses to the pandemic in New York was to direct PAUSE, causing workers to stay at home and businesses to close to varying degrees during the pandemic. Unemployment surged. Since workers’ compensation claims depend on employees suffering injuries at work, the number of claims being made plummeted during the pandemic. The Workers’ Compensation Board has assembled roughly 20% fewer claims this year.
Many frontline and other workers have been infected by the COVID-19 virus and have filed workers’ compensation claims to cover their medical treatment and disability due to this disease. Claims have also been filed for COVID-19 related deaths. Unlike many other states, New York has not enacted a presumption of compensability for contraction of COVID-19 for frontline healthcare or any other class of workers.
The Workers’ Compensation Board has encouraged employers to help employees file COVID-19 claims and carriers to consider payment of such claims without accepting liability pending further investigation. Because COVID-19 has broadly affected communities and not just workplaces, employers and carriers are controverting many COVID-19 claims. Nevertheless, the Board is establishing many claims as compensable, especially those of healthcare workers, once medical evidence diagnosing COVID-19 and relating it to the workplace has been provided. Although COVID-19 is a disease, claims involving the virus are most properly established as compensable accidents in New York State because they result from short term, identifiable exposures on the job.
As reflected throughout the chapters of this edition of the New York Workers' Compensation Handbook, the Workers’ Compensation Board has implemented many procedural changes to cope with the pandemic. First and foremost, ever since mid-March 2020, the Board has closed all hearing points and directed that all hearings throughout the state be handled remotely, using the Board’s previously established, statewide Virtual Hearing System. Parties, their attorneys and witnesses are able to appear via computer connection from their homes or offices and Judges preside from their office or home at hearings held as Zoom-type meetings. This system has worked fairly well and with pandemic numbers rising as of this writing, it is unknown when the Board will permit hearings to resume in person.
The Board has loosened time limits for submission of medical reports and depositions and relaxed the requirement that medical evidence to support disability be submitted every 90 days. The Board has also announced that it was more open to consider excusing untimely filings of Applications for Review and Rebuttals as well as First and Subsequent Reports of Injury (FROI and SROI). Likewise, recognizing that many practitioners, administrators, and their staff have been working remotely at home the Board has waived original signature requirements on numerous forms listed on the Board’s website.
The Board adopted emergency rules permitting telemedicine for social distancing and has extended the date by which health care providers needed to obtain approval for renewal of non-formulary from June 5, 2020 until a yet to be determined date in 2021.
New York State has taken steps to guarantee workers subject to quarantine or isolation, job and pay protection by issuing a combination of benefits including newly mandated employer provided paid sick leave, Paid Family Leave and disability benefits as covered in Chapter 14 of this edition of the New York Workers' Compensation Handbook.
Starting in March 2020, the Board also suspended adjudication of the requirement that a claimant demonstrate attachment to the labor market in order to continue to receive partial disability benefits. This suspension was in response to the substantial shutdown of business in New York during the pandemic and the resulting lack of employment and rehabilitation opportunities for such claimants. The result is that carriers have had to continue payment of indemnity benefits in many cases for much longer than in normal economic times. New York’s phased in reopening of the economy should theoretically allow some revival of the labor market attachment requirement, but as of this writing, the Board has not lifted its general suspension of the defense.
Maximum Rate and Insurance Premiums
Effective 7/1/20, the maximum weekly indemnity rate increased to $966.78 based on annual indexing to the state average weekly wage. The New York State Department of Financial Services approved a 1% loss costs premium decrease for workers’ compensation policies, effective 10/1/20.
Effective January 1, 2020 the Board adopted fee schedules to cover the expanded types of providers authorized to treat workers’ compensation claimants including nurse practitioners, physician assistants, occupational and physical therapists, acupuncturists and licensed social workers.
The Board adopted new Medical Treatment Guidelines (MTGs), effective January 1, 2021, for hip/groin, foot/ankle, elbow, occupational interstitial lung disease, hand/wrist/forearm (incorporating previous Carpal Tunnel Syndrome Guidelines) and occupational/work-related asthma. The Board has proposed Medical Treatment Guidelines for post-traumatic stress disorder/acute stress disorder and major depressive disorder. Though not adopted as of this writing, these Guidelines also have a proposed effective date of January 1, 2021.
Proposed amendments to Board regulations would implement an internet portal based submission and review process for authorization for treatment to replace the current variance from the Medical Treatment Guidelines and optional prior approval processes. It is unclear to what extent cross-examination of doctors would be permitted in this process and when it is likely to be implemented.
The Board has announced that it will fully implement its CMS 1500 initiative to replace multiple C-4 forms by an indefinite date in 2021. The initiative contemplates submission through a clearing house using an extensible markup language format and carriers will be required to respond using that format. The initiative is expected to remove the need for carriers to file C-8.1s or C-8.4s to reject to medical bills. The Board has also used a template for the narrative for health care providers to attach to the CMS 1500 outlining work status, causal relationship, temporary impairment, functional abilities and diagnosis.
The Board has also announced its future plans for internet based claims handling, called OnBoard, designed to replace the current eCase system and has offered introductory webinars for providers, carriers and employers and attorneys. OnBoard is not expected to be fully in place until 2023. The expansion of the types of providers authorized to treat workers’ compensation claimants has led, however, to a deluge of reports being submitted to the Board and resultant delays in filing in electronic claims files. For this reason, the Board is implementing “On Board Limited Release” in 2021 to eliminate several medical authorization forms and digitize the handling of prior authorization requests.
Case Law Developments
Over 70 new decisions on workers’ compensation issue from the Appellate Division and Court of Appeals are summarize and analyzed in Part II of the New York Workers' Compensation Handbook. Some of the decisions having the most significant impact on the Workers’ Compensation and practice are referenced below.
Permanent Partial Disability Awards
The Appellate Division handed down a number of significant decisions affecting permanent partial disability (PPD) awards. Reversing the Board, the Court held that periods of temporary total disability following a PPD classification toll the durational cap on the PPD award and are to be paid at the temporary total rather than permanent partial rate [Sanchez v. Jacobi Medical Center, 182 A.D.3d 121, 118 N.Y.S. 792 (3d Dept. 2020)]. In a decision defying past understanding of PPD awards, the Appellate Division held that the balance of the capped period of a PPD award is payable to the claimant’s heirs if he dies of unrelated causes before the expiration of the durational cap [Green v. Dutchess County BOCES, 183 A.D.3d 23, 121 N.Y.S.3d 362 (3d Dept. 2020).] Previously it was understood that whether capped or not PPD benefits ceased upon a claimant’s death because they were premised on claimant’s inability to work due to the injury. The death rather than the PPD causes the loss of wages once claimant dies. However, under the Court’s decision in Green, PPD awards become nearly the same as SLU awards requiring payment of a set number of weeks whether the claimant is alive or dead. It remains to be seen whether this ruling will hold or just be an aberration. See Part I, Ch. 5, § 5.52 of the New York Workers' Compensation Handbook.
Concurrent Schedule Loss of Use Awards and Permanent Partial Disability Classifications
After a number of Board decisions seemed to roll back the rule in Taher v. Yiota Taxi, Inc. allowing schedule loss of use awards concurrent with classifiable permanent partial disabilities, the Appellate Division ruled in a number of decisions that Taher is the law. A schedule loss of use can be awarded even though claimant also developed a classifiable permanent partial disability from other body parts due to the injury as long as the claimant is not losing time or wages from work due to the classifiable condition. The schedule loss of use award accrues as a credit if claimant later loses compensable time due to the classifiable permanent partial disability. Arias v. City of New York, 182 A.D.3d 170, 120 N.Y.S.3d 203 (3d Dept. 2020); Saputo v. Newsday, LLC, 180 A.D.3d 1303, 118 N.Y.S.2d 797 (3d Dept. 2020); Cosides v. Town of Oyster Bay Sanitation, 185 A.D.3d 1131, 127 N.Y.S.3d 168 (3d Dept. 2020). See Part I, Ch. 5, § 5.51 of the New York Workers' Compensation Handbook.
Calculation of Multiple SLU Awards
The Appellate Division reiterated its ruling in Genduso v. New Yok City Dept. of Education, 164 A.D.3d 1509 that schedule loss of use awards are for members enumerated in WCL § 15(3), not subordinate body parts. Accordingly, if a claimant suffers a shoulder injury and receives an award for an SLU of the arm and subsequently suffers an elbow injury to the same area, the claimant would be entitled only to the additional amount, if any, the later elbow injury contributes to the overall SLU of the arm. Claimant is not entitled to separate SLU awards for the shoulder and elbow. Kleban v. Central NY Psychiatric Ctr., 185 A.D.3d 1342, 128 N.Y.S. 3d 318 (3d Dept. 2020); Rickard v. Central NY Psychiatric Ctr., 2020 N.Y. App. Div. LEXIS 5385 (Oct. 1, 2020), Johnson v. City of New York, 180 A.D.3d 1134, 118 N.Y.S.3d 302 (3d Dept. 2020). See, Part I, Ch. 5, § 5.51 of the New York Workers' Compensation Handbook.
Standard of Proof for Compensable Claims
While not involving claims for COVID-19, a number of cases bear on the questions of whether a claim for development of COVID-19 or for an injury while working at home due the pandemic can be established as compensable. The Johnson v. Borg Waner Inc., 186 A.D.3d 177 (2d Dept. 2020) Court held that the doctor’s opinion that there was a “strong possibility” that claimant’s condition developed from work was inadequate to support establishment of the claim. Meanwhile, in Capraro v. Matrix Absence Mgt., 2020 N.Y. App. Div. LEXIS 6171 (3d Dept. Oct. 22, 2020), the Court reversed a Board decision denying a claim because the injury occurred off regular work hours even though while performing allegedly work related activities. See Part II, §§ 50.01 and 50.05 of the New York Workers' Compensation Handbook.
The Board has continued to deny consideration of Applications for Board Review (RB-89s) without addressing the merits based on appellants’ failure to complete each and every section of the RB-89 and abide by all the Board’s formal requirements to the Board’s satisfaction and the Appellate Division has largely affirmed the Board in these cases. However, The Court found that the Board overstepped its discretion in rejecting appeals due to unsatisfactory RB-89 completion in Mone v. Deer Park Sand & Gravel Corp., 182 A.D.3d 760, 121 N.Y.S.3d 479 (3d Dept. 2020), and Granica v. Town of Hamburg, 181 A.D.3d 1034, 120 N.Y.S.3d 212 (3d Dept. 2020). In Daniels v. City of Rochester, 178 A.D.3d 1220, 115 N.Y.S.3d 531 (3d Dept. 2019), the Court held that the Board Rules on content and length of appeal briefs were invalid. See Part II, § 50.42 and Part I, Ch. 12, § 12.02 of the New York Workers' Compensation Handbook.
When an employer has paid claimant wages for a period which is later covered by a compensation award, the employer is entitled to be reimbursed that award and the attorney’s fee effectively comes out of the employer’s reimbursement based on the priority of liens principle. If claimant receives an SLU award, the attorney’s fee comes out of that portion of the award payable to the claimant. Enoch v. New York State Dept. of Corr.& Community Supervision, 179 A.D.3d 1430, 117 N.Y.S.3d 752 (3d Dept. 2020) took that principle a step further holding the employer later was entitled to a credit for a previously awarded attorney fee against SLU award money later payable to claimant. See Part I, Ch. 5, § 5.34 of the New York Workers' Compensation Handbook.
This volume constitutes the twenty-first edition of the New York Workers' Compensation Handbook. As with the editions on which it was built, many individuals devoted substantial time, effort, and knowledge to completion of this edition. Mr. Weiss wants to express his gratitude for the support given by the partners, associates, and staff of his firm. This year in particular he would like to acknowledge and thank his partners Renee Heitger for her extensive revision of Chapter 6 regarding Medical Treatment, Nicole Graci for her revisions in Chapters 5, 13 and 14 and Stephen Wyder for his revisions in Chapter 12. Most importantly, Mr. Weiss thanks his legal administrative assistant, Carrie Wells, for her exacting devotion to detail in finalizing the text for this volume.
Mr. Balter thanks his firm, Vecchione, Vecchione, Connors & Cano, L.L.P., for allowing him the time to be able to write this book. This year has been unlike any other year in workers’ compensation since the enactment of the then Workmens’ Compensation Law in 1914. This I would like to dedicate the book to all of the attorneys who have made it possible for the system to continue under the most trying of times. Also I wish to express my thanks to the men and women of the Workers’ Compensation Board that kept the system working without any suspension of the hearing process while the courts of New York State have been on hold for most of the year.
This volume is the final product of the authors, but we recognize that it was built on the original chapters to which many legal scholars, identified in the pages following this Foreword, contributed. Once again, the authors wish to thank Thomas A. Robinson for his work in identifying the cases reviewed in Part II of this book and, as always, our editor, Robin Kobayashi, for all her efforts and patience in guiding this book to publication.
Ronald E. Weiss