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Virtual hearings are coming!

The Workers’ Compensation Board has recently completed a pilot program in Upstate New York involving “virtual hearings.” This process allows injured workers, attorneys and witnesses to attend hearings online. They are now being rolled into various downstate hearing points, such as Brooklyn and Staten Island. The remaining downstate hearing points are being wired to eventually permit this technology.

To participate in virtual hearings you must have a computer with a web cam, mobile device, or video conference system. If you will be using a laptop it must have a built-in camera. The hearing notice you receive provides details on how to participate in this process. Before you attempt to participate you should go on the Board’s website and follow the instructions to see if your device is compatible. Even if you and your attorney are both present at the hearing point your hearing will still be handled electronically (seems a little silly).

Our law firm has been using the virtual process selectively since we would rather be in Court to represent our clients. An unrepresented claimant is also required to have an acceptable mobile device or laptop to appear in person at the hearing point.

If you have a pending case we strongly urge you to consult with an experienced attorney to not only represent your interests against the insurance company (not your friend), but to help navigate this “virtual” process. If you are represented by counsel you have the option of appearing by phone or through your computer or mobile device. This is especially helpful for injured workers who are in too much pain to travel to the hearing, do not want to take a day off from work or have other obligations which prevent them from attending. You will not be judged negatively by the Law Judge if you allow your attorney to take advantage of this technology to save you the time and effort of travelling to your hearing.


Workers’ compensation fraud has become a juicy issue for insurance companies lately. They like to publicize the rare cases of people who are caught working at another job while receiving workers’ compensation benefits. The Workers’ Compensation Board has also become more aggressive towards fraud by injured workers, despite the fact that Employer fraud (understanding payroll, miscalculation of employees) is far more common.

Section 114(A) allows for weekly benefits to be suspended or permanently terminated if a claimant intentionally misleads the Judge or insurance company while receiving or claiming weekly benefits. In addition, it allows for criminal prosecution if the behavior is egregious. Until recently this fraud defense was used mostly for claimants getting caught working while receiving benefits. It has now been expanded to situations where a claimant fails to inform an insurance company or Doctor who examines for an insurance company of a prior injury or accident involving the same injury site involved in the most recent injury (even if the injury was minor).

The Workers’ Compensation Board has even changed the claim form (C-3) for injured workers. It now requires a claimant to supply details concerning prior similar injuries or accidents. Insurance Companies have been aggressively pursuing fraud penalties against injured workers for even minor, unintentional violations of this section of the law. The Courts have been affirming unfavorable decisions by Law Judges and permanently terminating benefits (and sometimes ordering restitution).

It is very important to consult with an experienced attorney as soon as possible following an accident or illness to not only receive assistance with your case, but to also avoid having your benefits suspended for these types of “fraudulent behavior.”


If you have had an injury or illness which prevents you from returning to work you are eligible for biweekly compensation checks. You will receive the maximum rate as long as both your doctor and the insurance carrier’s medical consultant (if you have had an exam) agree that you are 100% disabled from all work ( not just your prior job).

After every exam by your doctor you should always discuss with him/ her whether they feel you are still 100% disabled.If they feel you are less than 100% New York State requires you to “actively seek work within your work restrictions.” This applies even if you are also receiving Social Security Disability benefits. This also applies if a Law Judge has determined that you are partially disabled.

There are a number of ways to prove “attachment to the labor market.” However, you will, eventually, be asked to testify at a hearing concerning this issue. If you do not satisfy the Law Judge that you have made reasonable efforts to obtain gainful employment within your medical restrictions (even with a 90% disability) your biweekly checks will be discontinued.

It is extremely important that you discuss this issue with your attorney. If you are not represented you should arrange a consultation with an experienced attorney in this field as soon as possible.


We previously reported that that the Workers’ Compensation Board, under pressure from the insurance industry and small business council had proposed extreme changes to the law which, if passed, would have had devastating effects on working men/women who are eligible for awards for permanent injuries suffered on the job.

We are happy to report that as a result of pressure from your legislators, labor unions, the press and media, your own letters and calls, and many Bar Associations the Workers’ Compensation Board has backed off, and proposed amended guidelines for determining permanency awards on November 22, 2017. These “amended” guidelines offer only minor changes to the original 2012 guidelines which are used to determine permanency awards for injuries to extremities (arms, legs, etc). The original proposals would have effectively eliminated permanency awards which have been part of the law for the past 100 years, and would have had a devastating effect on permanently injured workers and their families.

While the Compensation Board will have to vote on what it wants to adopt by December 29, and the changes become permanent on January 1, 2018 there will still be a public comment period from now until December 29. It is important that you keep up the pressure on your elected representatives to protect you and your families from the devastating financial effects that the Compensation Board originally proposed.

This an important example of how you actually have a voice in government and can overcome pressure and tremendous financial resources from interest groups who are only concerned with even greater profits instead of protection for working families who have sustained permanent injuries and significant loss of income.


On September 11, 2016 Governor Cuomo signed legislation that extends eligibility and benefits for World Trade Center workers and volunteers to September 11, 2018. This also allows you to reopen previously time barred World Trade Center claims and considers them timely. If you were involved in the rescue, and clean-up operations between September 11, 2001 and September 11, 2002 and were injured or developed an occupational disease you should consult with an experienced attorney who is knowledgeable with the workers’ compensation law.

These types of claims require medical development and the correct paperwork to begin the process. They are often quite complex. Workers and volunteer claims are handled differently. It is important to consult with a knowledgeable attorney before attempting to pursue these benefits on your own.


The Third Department recently issued a major decision regarding workers’ compensation which could potentially have a huge impact on the outcome of many cases.

In Matter of Picone, claimant appealed a decision which ruled that claimant was entitled to a schedule loss of use award and that apportionment applied to that award. Prior to her workers compensation accident in 2011, claimant suffered a non-work-related injury to her left knee and surgery was performed on the knee in 2002 and 2009. Then in February 2011, claimant slipped on ice while working and she was awarded workers’ compensation benefits for an injury to her left knee. In 2015, a Workers’ Compensation Law Judge found that her schedule loss of use award should be apportioned 50% to the prior non-work-related injury.

The Court affirmed this decision. They stated that “Apportionment may be applicable in a schedule loss of use case if the medical evidence establishes that the claimant’s prior injury – had it been compensable – would have resulted in a schedule loss of use finding” (Matter of Wilcox v Niagara Mohawk Power Corp., 69 AD3d 1264, 1265 [2010]. Here, the treating orthopedic surgeon, opined that claimant’s prior non-work-related injury would have resulted in a schedule loss of use of had it been compensable, and claimant’s schedule loss of use award should be apportioned 50% between the prior non work related accident and the 2011 injuries.

Therefore, it is imperative that when a new accident occurs that the treating physician knows of any prior accidents and has an opinion on if a prior accident is apportioned to the new one or not. Otherwise, this decision will likely be left purely in the hands of the doctor who works for the insurance company.


For nearly a century the Workers’ Compensation Law has been in existence to provide injured workers and their families’ immediate financial and medical benefits. The law was enacted as a “trade off,” to prevent lawsuits against their employers for pain and suffering as a result of their negligence. This was a significant compromise for injured workers who were promised that the law would be liberally construed and Judges would act in their best interests (along with Appeals panels.)

Unfortunately, as a result of pressure from insurance companies and the business council, injured workers have had their lifetime weekly awards capped at ten years, and have had their medical insurance significantly watered down, with treating doctors required to complete mountains of paperwork.

Despite the fact that costs have been significantly reduced and premiums have been lowered the Workers’ Compensation Board (the Board) is being pressured by these same two groups to drastically reduce awards for permanent damage to extremities (arms, legs, shoulders, etc.). The Governor merely asked the Chairman of the Workers’ Compensation Board (who has announced that he is resigning from his position) to “modernize” the guidelines for determining permanency to reflect recent advances made in the medical field. Instead, the Board has proposed a complete new set of guidelines, almost 200 pages in length, which will result in a drastic reduction in awards for permanent injury, and an incredible amount of additional paperwork for treating physicians.

Public comment is permitted for 45 days. These changes do not become official until January 1, 2018. Various labor unions, newspapers and State legislators have expressed their outrage at these proposals. We encourage you to speak with your State Senators, Assemblyman and treating doctors as soon as possible. With enough public outcry by the people who matter most (the injured workers) we are hopeful that the Governor will direct the Board to either make these new guidelines much more fair and humane or completely eliminate them all together.


In 2010 the Compensation Workers’ Compensation Board issued the “Medical Treatment Guidelines”.

These guidelines cover injuries to the neck, back, shoulders and knees (and subsequently covered carpal tunnel syndrome). Although these guidelines put limits on conservative therapies such as chiropractic, physical therapy, acupuncture and message therapy they made it much easier and quicker to have most surgical procedures done.

If your physician has attempted conservative treatment, performed diagnostic studies such as an MRI (which were positive) and your condition has not improved he/she may schedule you for surgery without waiting the customary weeks/months to obtain authorization from the insurance company. Although some surgeries such as a total knee replacement and back fusion still require authorization, most do not. Check with your health care provider to see if your surgery is “pre-authorized”, it can save you a lot of aggravation and unnecessary pain.


The Pennsylvania Supreme Court recently issued an important decision concerning permanent benefits for injured workers, which struck down a key provision of their law. For the past 20 years insurance companies were permitted to require injured workers to see a physician after two years to put a % on their permanent impairment. If the impairment rating (using a formula which was very arbitrary) was below 50%, the injured worker was no longer eligible for permanent weekly awards. We hope that the NYS Workers’ Compensation Board has become aware of this recent, important decision. The NYS Workers’ Compensation Board has been attempting to require injured workers to begin the process of “capping” their weekly benefits after two years, without considering all of the realistic factors which prevent them from being able to re-enter the work force.


The New York Workers’ Compensation Board has recently issued new forms which must be filled out in order to document a proper job search and to be attached to the labor market. This must be done by anyone who is partially disabled and out of work, in order to be able to collect benefits.

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