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We are
pleased to announce that four of our attorneys: Matt Hoffman, John
Land, Dave Marello, and Brian Schaedler have been elected as partners
in the firm, effective January 1, 2022.
Matt has been practicing workers'
compensation defense since he was admitted to New York Bar in 2014.
He is expert in appellate practice and, notably, he successfully
argued O'Donnell v Erie County,
35 N.Y.3d 14 (2020) before the New York Court of Appeals, reaffirming
the obligation of partially disabled injured workers to demonstrate a
nexus between their post-retirement reduction in earnings and their
disability. Matt is also an adjunct professor at the University at
Buffalo Law School where he teaches a course on appellate advocacy.
He is a member of the Erie County and New York State Bar
Associations. Matt is resident in our Buffalo office.
John has also been practicing
workers' compensation defense since his admission to the bar in 2015,
following his graduation, summa cum laude, from
the State University of New York at Buffalo Law School in 2014. While
in law school, John won “Best Oralist” at the Midwest Super Regional
Round of the Phillip C. Jessup International Law Moot Court
Competition in February 2014. John's professional interests cover
every aspect of workers' compensation claims from initial controversy
to appellate court. He has also defended employers against illegal
employment claims under WCL §120.
He is a member of the Erie County and New York State Bar Associations.
John is resident in our Buffalo office.
Dave has been practicing law with
Hamberger & Weiss LLP since his admission to the New York Bar in
2015. In addition to general workers' compensation litigation, Dave
has developed a sub-specialty in representing our clients’ interests
in third party actions before State Supreme Court and the Court of
Claims. He also handles Loss Transfer arbitration hearings for our
clients.
Dave is an Erie County native. Outside of the office, Dave enjoys
playing sports and working on his golf game. He is a member of the
Erie County Bar Association and is resident in our Buffalo office.
Brian is
also a graduate of the State University of New York at Buffalo Law
School, where he not only served as a Publications Editor on the Buffalo Law Review, but graduated
in 2014 with the honor of three separate awards: the Robert J.
Connelly Trial Technique Award, the American Bar Association and the
Bureau of National Affairs Award for Excellence in the Study of
Health Law, and the Harold A. Dautch Memorial Scholarship Award for Academic
Excellence. Brian is an expert litigator and has successfully
defended our clients throughout the thousands of hearings and
depositions he has handled.
When not in hearings, Brian can be found at the gym, playing sports,
or watching the Buffalo Bills or Sabres. Brian is a member of the New
York State Bar Association and is resident in our Rochester office.
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Bram Lehman Joins
H&W LLP as Special Counsel
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We are
pleased to welcome Bram
Lehman to
the firm, who joined us as Special Counsel in December 2021. Bram has
more than 30 years of experience in New York workers’ compensation.
He was most recently a partner in the firm of Bond, McDonald, &
Lehman in Geneva, NY where he represented claimants for 20 years.
Bram graduated cum laude from Syracuse Law School in
1991, where he was an editor of the Syracuse Law Review.
He began his workers’ compensation career in 1993 at the Syracuse
defense firm Mackenzie, Smith, Lewis, Michel, and Hughes, where he
represented a wide range of carriers, third party administrators and
self- insured employers. He then became a partner at another
Syracuse defense firm, Whyland & Richmond, LLP, where he practiced
until 2000. Bram was a Geneva City Court Judge from 2007 until
2014. He is a member of the New York State Bar Association and is
resident in our Rochester office.
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Practice Tips Regarding
the 130 Week PPD Credit/MMI "Safety Valve" Provision
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In 2017 the
workers’ compensation law was amended to allow carriers to take
credit for temporary disability payments paid to a claimant beyond
130 weeks (2.5 years) from the date of accident or disablement
against that claimant’s maximum benefit weeks from a permanent
partial disability award under §15(3)(w). This rule applies to all
injuries with dates of accident or disability after April 9,
2017. However, the credit only applies if there was no
intervening finding that the claimant was not at maximum medical
improvement (“MMI”). Now that we are well past 130 weeks from
April 9, 2017, this provision has become increasingly relevant and we
have encountered a few different issues we want our clients to be
aware of.
1)
The amendment applies as a matter of law:
Our firm maintains, and the Board thus far seems to agree, that the
amendment applies as a matter of law. In other words, there is
no need for the carrier to specifically note its entitlement to the
credit at the time classification is decided. We have seen some cases
where the claimant's bar disputes this and alleges that the existence
of a credit must have been raised at the time of permanency. We are
unaware of any precedent in support of this position. Should you
receive any ruling from the Board finding the carrier is not entitled
to a credit against the cap on the basis that it was not raised at
permanency, please let us know.
2)
All weeks in which payments were made after 130 weeks from the date
of accident/disablement count towards the credit
We have heard some argument that the carrier is only entitled to a
credit after 130 weeks of payments have been made, rather than the
credit applying for any benefits paid after 130 weeks have passed
from the date of injury. We disagree with this argument. The statute
states that whenever the carrier has provided compensation beyond 130
weeks from the date of accident, it gets a credit for those payment
weeks. It says nothing about an obligation to have paid 130 weeks of compensation.
Furthermore, Board
Subject Number 046-936 says “The reforms … provide
a credit for periods of temporary disability that extend beyond 2.5
years (130 weeks) from the date of injury. Insurance carriers may
receive a credit against the maximum benefits payable for permanent
partial disability for any periods of temporary disability paid
beyond the 2.5 years (130 weeks).” This language makes no claim
that 130 weeks of benefits must be paid for the credit to
apply.
Accordingly, should you receive any decision where a WCLJ finds you
are not entitled to credit weeks on the basis that they did not begin
to accrue until 130 weeks of temporary benefits had been paid, please
let us know.
3)
Avoid MMI litigation when the outcome is uncertain
To paraphrase Sun-Tzu, “never enter into any battle you have not
already won.” As noted above, the credit for temporary benefits
disappears if there is a no MMI determination before permanency is
ultimately found. Thankfully, this provision is worded narrowly. For
the credit to be forfeit, 1) permanency must be at issue; 2) the
claimant must have produced medical evidence he is not at MMI; 3) the
carrier must have had the chance to secure an opinion on the
question; and 4) the Board must have decided that the claimant is not
at MMI.
Therefore, it is wise to avoid litigating the issue if it does not
seem likely the carrier will prevail. Better to accept the
opinion of a claimant’s doctor that he is not at MMI for the time
being, secure in the knowledge that the benefits you are paying now
will ultimately act as a credit, rather than litigate and lose not
only the issue of MMI, but the availability of the credit. In cases
where the Board sets the matter down for permanency on its own
motion, and there is an opinion from claimant's doctor that he is not
at MMI, it may be prudent to consider accepting that opinion, unless
there is some obvious factual or legal deficiency. We can then
argue that the credit was not forfeit on the basis that none of the latter
three events occurred.
We anticipate that the claimant's bar may ultimately argue for such
cases to be disqualified from the credit, but we are optimistic about
our position given the language of the statute.
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Governor Hochul Signs
Workers' Compensation Bills at end of 2021
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A number of
workers' compensation bills were signed into law by New York Governor
Kathy Hochul to close out 2021. The first creates a schedule for attorney fees and removes much of the
Board’s discretion regarding same. The new law adds subdivisions 2
and 3 to WCL §24 and provides that the Board “shall” approve fee
applications “in an amount commensurate with the services rendered
and the amount of compensation awarded, having due regard for the
financial state of the claimant” in accordance with the following
schedule:
(a) One third of a week’s compensation for continuing payments
(b) 15% of a retroactive award increase over prior payments
(c) 15% of SLU and SFD awards less prior payments
(d) 15% of PTD and PPD classification awards less prior payments,
plus a sum equaling 15 weeks of the weekly rate
(e) 15% of Death awards less prior payments, plus 15 weeks at the
weekly rate
(f) 15% of Section 32 Settlement award and waiver of any prior fees
awarded but not accrued.
Despite stating that fees shall be "commensurate with services
rendered," the amendment seems to indicate that the Board must
award fees in accordance with this schedule, regardless of the amount
of work the attorney performed. The fact that the language provides that
the Board “shall” award in accordance with the schedule implies that
the Board has little discretion on fees. The Governor’s signing
memorandum references some technical changes to the law, which are
now the subject of Senate
Bill S7762, currently working its way through the
legislature. This bill will push the effective date for the attorney
fee schedule to 1/1/23. Additionally, the bill will require written
fee applications for fees more than $1,000.00. Significantly, the
bill states that benefits allocated towards future medical expenses
in Section 32 agreement shall not be included in the calculation of
the fee. Senate Bill S7762 has been passed by both the Senate and the
Assembly. Thus, the bill will presumably be signed by the Governor in
the near future.
The next bill, signed on 12/23/21, concerns the Uninsured Employers Fund
(UEF) and
adds a new subdivision 6-a to WCL §26-a. The new subdivision provides
that in the event the Board is unable to identify the responsible
insurance carrier for an employer within ten days of filing of a new
claim, it shall “appoint” the UEF as the insurance carrier “until
such time as the responsible insurance carrier is determined.” At the
time she signed the bill, the Governor announced that she had reached
an agreement with the legislature to amend the bill to allow thirty
days from claim filing for appointment of the UEF as carrier. The
amendment further provides that “Upon such appointment, the UEF shall immediately commence
payments and provide medical care…” (emphasis added). It remains to
be seen just how immediate the UEF’s payments will be. Arguably, this
legislation denies the UEF the opportunity to controvert a claim on
basic ANCR issues. The amendment takes effect sixty days after
signing (February 20, 2022) and applies only to claims filed on and
after that date.
The bill most applauded by attorneys, signed on 12/22/21, takes away
the Board’s power to deny applications for Board review and Rebuttals
to same based on technical defects in the
RB–89 and RB–89.1 cover sheets. The bill adds a new
Sec. 23-a to the WCL which provides that notwithstanding Board Rule
300.13(b) and Board Subject Nos. “a mistake, omission, defect and/or
other irregularity in a coversheet accompanying” an Application for
Board Review, Application for Full Board Review, or Rebuttal shall
not be grounds for denial of such Application or Rebuttal. The Board
is to “permit any such mistake, omission, defect and/or irregularity
to be corrected within twenty days of written notice by the board” of
same, or "if a substantial right of either the party filing the
application or party filing the rebuttal is not prejudiced, such
mistake, omission, defect and/or irregularity shall be disregarded.”
WCL §23-a takes effect immediately but does not apply to previously
denied Applications or Rebuttals.
Other bills signed near the end of 2021 include S.1022-A, which added
a new WCL §17-a to the statute, requiring the Board to translate all documents and
forms used by or issued to injured employees in the 10 most common
non-English languages spoken in New York State. The
new law also requires the Board to provide interpretation services to
injured employees and to publish a "language access plan"
as well as a point a "language access coordinator." The new
law is effective 3/22/22.
Finally, in October 2021, the Governor signed the "Nigro
Act" named for Anthony Nigro, a bus mechanic who died in 2012 of
lung cancer from exposure to diesel exhaust. This law creates a new
WCL §16-a that provides a one time, one year
opportunity to file a death benefit claim for any cancer due to
exposure to diesel exhaust that otherwise would
be disallowed by the timely claim filing or timely notice defenses.
The one-year window begins on 10/29/21 and ends on 10/28/22.
Please contact our partner Ron
Weiss with
any questions about the above legislation.
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Hamberger
& Weiss LLP - Buffalo Office
700 Main Place
Tower
350 Main
Street
Buffalo, NY
14202
716-852-5200
buffalo@hwcomp.com
Hamberger
& Weiss LLP - Rochester Office
1 South
Washington Street
Suite 500
Rochester, NY
14614
585-262-6390
rochester@hwcomp.com
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