First ALJ Opinion on COVID-19
 
Perkins v. North American Stainless, (WC 2021-01615)
 
Employee Perkins was a mechanical maintenance shift technician working 12-hour shifts in close proximity to his crew partner, Springer. Perkins contracted COVID-19 and died. His widow, Megan Perkins alleged he caught COVID-19 from Springer at work on 8/8/21.

Springer testified that Perkins had been to a party on 8/7/21 at Parkers’ house. Springer had been to the outdoor races earlier in the day but did not go to the party. The two were off on 8/9/21 and 8/10/21 and Springer testified that during their shift on 8/11/21, Perkins was not feeling well and complained of sinus issues. Another employee testified to same.
 
On 8/13/21, Perkins texted Springer that his wife had pneumonia and he didn’t want to go to doctor and was taking Aleve D. Springer developed sinus pressure on 8/14/21 and tested positive for COVID on 8/15/21, texting his results to Perkins. Perkins texted Springer on 8/16/21 that he was also positive, stating: “I bet we got it from parkers. meg said him and all kinds of people are sick from down there…wonder if we should tell hr that so they don’t think we have it at work cause she was down there too.” 
 
Megan denied that he or she went to a party at Parker’s house. She testified that Perkins, herself, her three children, and her mother all lived together. All three children played outdoor soccer and attended public school. She and Perkins ate out in Louisville on 8/4/21 for their anniversary and went to breakfast on 8/11/21. She did not recall Perkin’s having any symptoms until he told her he was feeling sick on 8/15/21. They went to the hospital, and both tested positive for COVID. She had been having sinus issues for three weeks and frequently had infections due to a deviated septum. All three children tested positive after 8/15/21.
 
Perkin’s doctor stated that his COVID symptoms were consistent with exposure at work on 8/8/21 but he could not say for sure that his exposure was from work. The employer’s expert determined there was no way to know for certain how and where Perkins contracted COVID, but he and his wife likely contracted it at the same time since they were symptomatic at the same time and hospitalized at the same time and that their children were the most likely source. He further testified that Springer likely contracted COVID from Perkins since Perkins had symptoms several days before Springer.
 
The ALJ held that Perkins did not prove a workplace injury arising out of employment. He failed to prove an occupational disease since COVID is not “incidental to the character of the business” which is manufacturing steel. Furthermore, Perkins did not prove that the COVID was caused by a work exposure. Perkins had a communicable disease but failed to prove he was at a greater risk than the general public of contracting the communicable disease due to his employment, and therefore the claim is barred.

Coming and Going Rule and Traveling Employee Exception
 
Com. Of Kentucky, Personnel Cabinet v. Timmons (2021-SC-0271-WC)
 
Timmons worked in the office daily but was also required to conduct occasional home visits and off-site trainings. While leaving her home to conduct a training at a nearby church, she fell on the front steps. The Commonwealth contested the work-relatedness of the claim arguing for application of the coming and going rule. Timmons argued that the travelling-employee exception to the going and coming rule applied.
 
The ALJ determined the injury was not work-related and the travelling-employee exception did not apply. The Workers’ Compensation Board reversed finding the travelling-employee exception applicable and the Court of Appeals agreed. The Supreme Court of Kentucky reversed the Court of Appeals, determining that the traveling employee exception to the coming and going rule does not apply until the travelling employee leaves their property, exposing themselves to the common risks of the public street.

2023 Workers’ Compensation Benefit Schedule
 
The 2023 Benefit Schedule has been published by the Department of Workers’ Claims and can be found here:
https://labor.ky.gov/Documents/2023%20Workers%27%20Compensation%20Benefit%20Schedule.pdf
 
2023 Discount Rate Order and Tables
 
The Discount Rate Order and Tables can be found here:
 
https://labor.ky.gov/Documents/2022%20Discount%20Rate%20Order%20and%20Tables.pdf
 

Should you have any questions or wish to discuss any related matters, please contact us at your convenience.

H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200

On 12/30/22, Governor Hochul vetoed three bills pertaining to workers’ compensation matters and signed one into law. She vetoed a bill redefining temporary total disability (S768/A1118), a bill that would have set the minimum rate of compensation as no lower than 1/5 of the state average weekly wage (S8271/A7178), and a bill that would have changed the legal standard for establishing a claim for mental stress (S6373/A2020). She signed into law a bill that prohibits any workers’ compensation board determination from having a collateral estoppel effect in any other action or proceeding arising out of the same occurrence, except for the determination of an employer-employee relationship (S9149/A10349).

Employers and carriers were concerned about the three vetoed bills, which were passed by the legislature over the summer. Each would have increased workers’ compensation premiums and the cost of doing business in the state.

However, the so-called “TT bill” was of particular concern because it had the potential to effectively eliminate partial disability classifications in New York given its definition of temporary total disability as the inability of an injured worker to fully perform their pre-injury job or modified work offered by the employer. Such injured workers would be allowed to receive the maximum benefit rate, no matter how much residual work capacity their own physician believed them to have. We discussed this concern along with our analysis that this bill would have increased the value of permanent partial disability awards and eliminate the labor market attachment defense in our white paper published over the summer. 

The workers’ compensation defense bar was active in educating the public about the potential cost increases that would result from passage of this bill. Our firm wrote an op-Ed in The Buffalo News and our partner Dan Bowers and Mark Hamberger were interviewed by Buffalo Business First in their article about the bill. Attorney Peter Walsh of the Walsh and Hacker firm in Albany was interviewed in an article about the bill published in the Times Union in June 2022.  

We are pleased to learn that the governor vetoed the TT bill and the other two bills that were passed by the legislature this summer. We believe her vetoes to be a “win“ for businesses in New York. This should serve as a reminder that employers and carriers concerned about the cost of doing business in New York State should be sure to monitor the legislative calendar for pending legislation in 2023 and contact their elected officials to discuss any legislation that they are concerned about.

On 1/18/23, Maila Hazen will present "New York Prior Authorization Request (PAR) Basics". This webinar will discuss the New York Workers’ Compensation Board’s prior authorization request (“PAR”) process. PARs generally apply to requests for medical treatment that fall outside of the Board’s Medical Treatment Guidelines. Participants will learn the basics of the PAR process and practice tips for handling PARs from health care providers. This webinar is relevant to New York workers’ compensation claims only.

It will be held at 11:00 AM EST on Wednesday, January 18 2023. Please click here to register. 

This webinar is produced in partnership with WorkCompCollege.com and the National Workers' Compensation Defense Network (NWCDN). 

In 2022, the Board has overhauled the process for health providers to request prior authorization for treatment as well as the process for employers, carriers, and administrators to respond to these requests. The Workers’ Compensation Board's project to do this is called "OnBoard" and the Board has now completed its initial rollout of the project, which is designed to transition payers and health care providers from paper-based processes to online processes. Our white paper discusses the Board’s prior authorization request (“PAR”) process. PARs generally apply to requests for medical treatment that fall outside of the Board’s Medical Treatment Guidelines. You can download it here

For any questions about this topic please do not hesitate to contact Maila Hazen or our partner Renee Heitger.

As Responsible Reporting Entities (RREs), carriers and self-insured employers (SIEs) are responsible to report the existence of any Medicare enrolled claimants to CMS, subject to certain reporting thresholds. CMS ostensibly uses this information to avoid making conditional payments, where a carrier or self-insured employer’s coverage is primary to Medicare. The 2007 Medicare, Medicaid and SCHIP Extension Act (MMSEA) also imposed civil monetary penalties of up to $1,000.00 per day, per claimant, for failure to comply.
 
The penalties are in addition to any MSP reimbursement obligations, such as conditional payment reimbursement. Carriers and SIEs should consider the cost of these penalties as potential added claim expense, in addition to conditional payment reimbursement, MAP lien reimbursement, and WCMSA funding.
 
Highlights of the proposed rules include: 

• Penalties can be imposed if an RRE fails to register and report within one year of the date that a settlement, judgement award or other payment obligation was established. The penalty is up to $1,000.00 for each day of non-compliance for each claimant. The maximum penalty for each claimant is $365,000.00 per year.  
• If a report is made, but the RRE subsequently provides contradictory information in response to MSP recovery efforts, the RRE is subject to a penalty based on the number of days that the RRE failed to appropriately report updates to the claimant’s records. The penalty is up to $1,000.00 per day of non-compliance, with a maximum of $365,000.00 per claimant.  
• CMS proposes a 20% error tolerance. If errors exceed the 20% threshold in four of eight consecutive reporting periods, the RRE may be subject to a penalty upon the fourth occurrence. This penalty is tiered, ranging from $250.00 per day, per claimant, for each day of non-compliance to a maximum of $1,000.00 per day. The maximum quarterly penalty is $90,000.00 per claimant.
• There is five year statute of limitations for imposition of a penalty, tolled from the date that CMS identified non-compliance.  
• The proposed rules are prospective, meaning that CMS will impose penalties on a go forward basis following the effective date, rather than retroactively.   

CMS will informally communicate with the RRE before imposing a penalty, using the same communication procedures already in place under the MMSEA User Guides. The RRE may respond with mitigating evidence. If a penalty is imposed, the RRE will receive formal written notice from CMS. A dispute process is proposed, involving hearings before a federal Administrative Law Judge, appeals to the Departmental Appeals Board, and petitions for judicial review.

We strongly recommend reviewing Section 111 reporting procedures with those responsible for supplying information to your reporting agent, as well as reviewing your reporting agent’s procedures, to be sure that everyone is in compliance before February 2023.
 
As industry pioneers in Medicare compliance, we have been preparing MSAs, defending conditional payments and Medicare Advantage Plan liens, and advising on Section 111 reporting for nearly two decades. As our clients prepare for this latest development, we stand ready to train, advise and, if need be, defend MMSEA penalties. Please contact our partner, Nicole Graci, for more information.

As a reminder, the Hamberger & Weiss LLP New York Workers’ Compensation Law Reference Sheet is available online for claims professionals that need a handy reference tool in day-to-day claims handling. The reference sheet has the maximum and minimum compensation rates dating back to 1990, the SLU and LWEC tables, common due dates, and summaries of laws concerning liability, defenses, settlements, and medical treatment issues.

Insurance carriers and employers in New York exhaled a sigh of relief after the Court of Appeals issued its decision in Green v. Dutchess County BOCES on 10/27/22. This decision from New York's highest appellate court reverses an Appellate Division holding which required posthumous payment of remaining capped permanent partial disability benefits in non-schedule loss of use award cases when the claimant dies for reasons unrelated to their work injury. That decision, now reversed, created a new category of New York workers' compensation benefits with potentially huge additional unplanned liabilities for New York workers' compensation payers. When the Appellate Division’s decision in Green was published, Hamberger & Weiss LLP opined that the decision was wrongly decided because it failed to apply long-standing precedent requiring causally related lost time / lost wages as a prerequisite to permanent partial disability awards.

The Court of Appeals held that there is no statutory basis in the plain language of the workers' compensation law or in the legislative histories of statutory amendments over the years supporting Appellate Division's decision. The Court highlighted the fundamental distinction between schedule and non-schedule permanent partial disability awards over 100 years ago in 1921. One hopes this unambiguous reaffirmation by the Court of that fundamental distinction will lay to rest any future attempts to blur the difference between schedule and non-schedule awards for another 100 years.

Please do not hesitate to contact any of our attorneys with questions about this decision.

On 5/26/22, the Appellate Division, Third Department decided Bonet v. New York City Transit Authority. This decision reaffirms several recent decisions from the Court holding that, in repetitive use occupational disease claims, a treating physician must have adequate knowledge of the claimant's work activities before commenting on whether the work activities would be likely to cause the claimed medical condition. In this case, the Court affirmed a Board Panel decision disallowing claimant's repetitive use occupational disease claim, highlighting the fact that physician who commented on causal relationship lacked "… adequate knowledge of any of claimant's specific job duties, except in the most general sense, or the amount of time spent on those duties." The medical reports from claimant's treating physician stated only that claimant "injured himself due to repetitive motions and generically identified the critical demands of claimant's employment as bending, pushing, pulling, lifting, carrying, reaching above shoulder level, sitting, standing, and walking."

This decision serves as a reminder that repetitive use occupational disease claims are not automatically compensable merely because a treating physician asserts causal relationship for the claimed injury site. The treating physician must have adequate knowledge of the nature of the claimant's work activities, and claimants must prove that their case meets the specific legal requirements for a repetitive use occupational disease claim. These legal requirements are more exacting than requirements for a standard accidental injury claim. Consultation with defense counsel on whether evidence produced by a claimant satisfies the legal requirements for a repetitive use occupational disease claim is useful in many cases because a claimant’s initial proof often fails to check one or more of the necessary boxes required to establish a repetitive use occupational disease case.

As of August 2022, the Hamberger & Weiss LLP conditional payments team has saved our clients over $1,000,000. With 4 months still left in the year, the conditional payments team is on track for a record year.

Hamberger & Weiss, LLP provides Medicare Compliance services, including MSAs with or without CMS pre-settlement approval, conditional payment lien research and recovery at CMS and Treasury levels, MAP lien research and recovery and NGHP Mandatory Insurance Reporting guidance. Contact our partner Nicole Graci at ngraci@hwcomp.com for your conditional payment, MAP and Section 111 reporting needs.