FAQs

New York Workers’ Compensation Board Announces New Hearing Process for Opioid Weaning Issues

FAQs Medical Treatment Guidelines (MTG) WCB Announcements

Recognizing that opioid addiction is a major public health crisis, the New York Workers’ Compensation Board yesterday announced a new hearing process to address opioid weaning issues. In 2014, the Board implemented the “Non-Acute Pain Medical Treatment Guidelines” (“MTG”) to address opioid usage in workers’ compensation claims.

As the “Non-Acute Pain Medical Treatment Guildeines” makes clear, long-term opioid use is only recommended in limited circumstances, and must involve constant clinical monitoring and re-evaluation. The guidelines also includes best practices for safely weaning injured workers from opioids and other narcotics.

Requesting a Hearing 

Under the new process, the insurance carrier or self-insured employer can now request a hearing to address whether the claimant should be weaned from opioids. In order to request the hearing, the Board requires an IME report or Records Review, “which indicates weaning goals and recommended weaning program or resource” be submitted with the RFA-2.

In response to the RFA-2 filed by the insurance carrier:

The claimant will have the opportunity to submit a medical report from his or her prescribing physician. The report must contain the provider’s review of the use of opioid medications, a list of the claimant’s current medications and a review of whether the opioid medication is in compliance with the Non-Acute Pain Medical Treatment Guidelines. The provider may comment on weaning resources identified in the IME and/or provide alternative resources. The medical report is due by the date of the hearing, which will be held approximately 45 days after the Board notifies the claimant of the insurer’s request for a hearing.

If the claimant or his legal representative wishes to cross-examine the IME, they may do so. However, the new procedures require the deposition transcript(s) to be in the Board file prior to the opioid weaning hearing. Should the treating physician submit medical evidence contrary to the IME, the insurance carrier may request cross-examination of the treating physician at the hearing.

The Hearing Process

Once all evidence (medical reports, deposition transcripts, weaning recommendations) is submitted and the parties are heard, the Law Judge will issue a ruling finding either:

  • Insufficient proof that there is a need for continuing long-term opioid use and the claimant must be weaned from the narcotic medication(s); or
  • Insufficient proof that there is a need for continuing long-term opioid use and the claimant must be weaned from the narcotic medication(s), and enrolled in an addiction treatment program; or
  • Claimant demonstrated the opioid use was effective in terms of improved function and reduction of pain, and that weaning will be unnecessary at this time.

When the WCLJ rules that the claimant must be weaned from the opioid medication, the insurer will be required to cover the cost of the claimant’s addiction treatment program or weaning protocol, as directed. If the claimant is to be weaned without addiction services, the insurer will remain liable for the claimant’s medications for the duration of the weaning process. If an addiction treatment program has been directed, then after 30 days, the insurer will only be liable for payment of narcotic prescriptions written by an addiction treatment program physician.

Basically, this new process ensures the issue of whether a claimant’s opioid medication treatment is within the Non-Acute Pain Medical Treatment Guidelines will be addressed in an expedited matter and sets forth the process for how these issues are to be litigated.

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Workers’ Compensation and the Impact On Other Disability Benefit Programs

FAQs Practice Tips

In New York, when an individual suffers an accident or illness arising out of and in the course of employment, workers’ compensation becomes the primary source of wage replacement and medical benefits. It is important to understand how workers’ compensation benefits affect or are affected by other available benefit programs. Some of these additional benefit programs duplicate workers’ compensation benefits, some supplement workers’ compensation benefits, and others are paid instead of workers’ compensation benefits.

Private Long Term Disability Benefits: Some employers voluntarily provide employees with long term disability benefits. Individuals can also obtain these policies on their own. Long term disability benefits are typically available for periods of disability which extend beyond an ‘elimination period.’ These policies issue indemnity benefits to policyholders who are disabled and unable to work beyond a set period of time, i.e. six months, 26 weeks, or another set period of time specified in the long term disability policy.

The Workers’ Compensation Board does not have jurisdiction over private long term disability benefit plans. As there is no jurisdiction, the Board has no legal authority to direct reimbursement for a duplication of benefits. Therefore, a claimant can receive both workers’ compensation indemnity benefits and benefits from their long term disability policy at the same time and even receive more from the two than their normal weekly wage while working. However, most long term disability policies contain provisions that require reimbursement to the long term disability carrier or take an offset for any workers’ compensation benefits. These reimbursements and offsets are to be determined in accordance with the terms of the long term disability policy.

Social Security Disability Benefits: The definition of disability under New York Workers’ Compensation law and Social Security Disability law is different. Social Security disability benefits are reduced pursuant to 42 U.S.C.S. § 424a so that the combined amount of the Social Security disability benefits plus any workers’ compensation indemnity benefits and/or public disability payments do not exceed 80 percent of the claimant’s average current earnings. If the sum of the claimant’s benefits exceeds 80 percent of their average current earnings, the extra amount is deducted from their Social Security disability benefits. In other words, Social Security gets the benefit of the offset. For a better understanding of the overlap between Social Security Disability benefits and workers’ compensation, review our prior article here.

New York State Disability Benefits:  All covered employers in New York State are required to provide for the payment of Disability Benefits to all eligible employees. State Disability Benefits (cash benefits only) are payable for any non-work related injury or illness, including pregnancy. Those entitled to New York State Disability Benefits receive weekly indemnity benefits. The benefits are computed at 50% of the claimant’s average weekly wage and are payable for up to 26 weeks of disability during 52 consecutive weeks. The current statutory maximum benefit rate in New York is $170.00 per week.An injured worker may not receive both workers’ compensation and New York state disability benefits concurrently. A disabled worker may claim and collect disability benefits if and when his or her claim for workers’ compensation benefits is controverted.

Unemployment Insurance Benefits: There are times when injured workers are eligible to receive unemployment insurance benefits while out of work due to a work injury. To qualify for unemployment benefits an individual must be able to work and be available to work. Therefore, any injured worker who is totally disabled does not qualify for unemployment benefits as by defintiion, they are not able or available to work. However, injured workers who are partially disabled may receive both workers’ compensation indemnity benefits and unemployment benefits concurrently. In situations where receiving both benefits, injured workers should not receive a greater weekly benefit through a combination of workers’ compensation and unemployment than they earned pre-injury. If the claimant is receiving more than 100% of their pre-injury average weekly wage then their unemployment benefits may be reduced. Unemployment gets the benefit of the offset and workers’ compensation remains the primary benefit.

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Adjuster and Attorney Contact With Claimants In Workers’ Compensation Claims

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When a claimant has not retained legal counsel, direct communication between the insurance carrier, third party administrator, or self-insured employer with the unrepresented claimant is the only way to gather pertinent information related to the claim. Communication is allowed with unrepresented claimants. But, in order to avoid potential ethical issues, adjusters and defense attorneys should avoid giving the claimant  legal advice, other than advising the person to seek legal representation. [N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.0 Rule 4.3]

Once a claimant retains legal representation; either hiring an attorney or a Licensed Hearing Representative, contact with regard to legal issues related to the claim must be made through claimant’s counsel. It is clear that defense attorneys are prohibited from direct communication with claimants represented by counsel by the Rules of Professional Conduct. However, employees of the insurance carrier, such as adjusters, are also prohibited from direct communication with represented claimants.

Attorneys in New York are governed by the Rules of Professional Conduct which provides in part at 22 NYCRR 1200.0 [Rule 4.2 Communication with person represented by counsel]:

1. (a) In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.

2. (b) Notwithstanding the prohibition of paragraph (a), and unless otherwise prohibited by law, a lawyer may cause a client to communicate with a represented person unless the represented person is not legally competent, and may counsel the client with respect to those communications, provided the lawyer gives reasonable advance notice to the represented person’s counsel that such communications will be taking place.

Violation of this professional rule of conduct subjects the attorney to disciplinary action. The Rules of Professional Conduct prohibit not only the attorney from communicating with the represented claimant but also prohibits the attorney from directing another individual to communicate with the claimant, who is known to be represented by counsel.

Any carrier/employer contact regarding settlement must be through legal counsel. Direct contact with a represented claimant regarding settlement is not allowed. In fact, a formal opinion by ‘The Association of the Bar of The City of New York Committee on Professional and Judicial Ethics” opines “sending a letter or email to a represented person, and simultaneously sending a copy of the communication to counsel, is impermissible … unless the represented person’s lawyer has provided prior consent to the communication or the communication is otherwise authorized by law.” [Link]

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Overview of Death Benefits In New York Workers’ Compensation

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New York workers’ compensation law allows for benefits if a work-related injury causes death under NY WCL §16. A death can be considered work-related if it is due to a specific injury or due to an occupational disease/condition.

The decedent’s surviving spouse, children, parents, or estate may be entitled to death benefits. In addition to indemnity benefits, the carrier/employer is responsible for funeral expenses.The Workers’ Compensation Board sets a schedule for funeral expenses, currently up to $6,000.

If there are no surviving dependents entitled to receive death benefits, N.Y. Work. Comp. Law §16(4-b) provides that the sum of $50,000 must be paid to the surviving parents or if there are no surviving parents, to the decedent’s estate.

The rate of the the death benefit is in general subject to the same statutory minimum and maximum benefit rate as any other wage loss benefit. Death benefits are only due if the death is causally related to work. If an injured worker is collecting either temporary disability benefits or permanency benefits but passes away due to an unrelated illness, death benefits and funeral expenses are not owed.

Generally, the surviving spouse receives benefits for the remainder of their life, expect in situations where they remarry. In situations where the surviving spouse remarries, the spouse receives a lump-sum of two years of benefits [N.Y. Work. Comp. Law § 16(1-b)].

With respect to indemnity benefits, if there is solely a surviving spouse with no minor children and no children who are either blind or physically disabled, the surviving spouse receives 66.667% of the deceased’s average weekly wage up to the statutory maximum rate at the date of death. If there are minor children in addition to the surviving spouse, there is no increase in the overall indemnity benefit, the benefit rate is divided amongst the surviving spouse and all minor children. In situations where there are more than one surviving child;, the surviving spouse receives 36.667% of the weekly benefit rate and the children divide the remaining 30% equally. Surviving children’s benefits will cease once they turn eighteen, or twenty-three years old for full-time students. [N.Y. Work. Comp. Law § 16(2-a)].

What is a Section 32 Settlement Agreement?

FAQs Practice Tips

Once a workers’ compensation claim has been either accepted as work-related or found by the Board to be compensable, the primary goal of the insurance carrier and/ or employer is to settle the claim. Settlement is priority because it allows the carrier to end exposure for indemnity and/or medical costs. New York Workers’ Compensation Law §32 allows for resolution of specific issues, or the entire case, at any stage in the proceedings. These settlements are typically referred to as “Section 32 settlements” because of the specific section of the law that authorizes these settlement agreements.

In New York, claims are either settled:

  • “indemnity only,” which means the carrier/employer remains liable for ongoing medical treatment but the parties agree to settle the indemnity portion of the claim; or
  • “medical only,” which is the opposite of indemnity only. Basically, the medical portion of the claim is closed and the indemnity portion of the claim is not closed. These are the least common of the types of settlement; or
  • “full and final,” meaning the parties agree to settle both the indemnity and medical portions of the claim. Upon approval of the settlement, the claimant waives their right to any additional indemnity awards and medical treatment related to the claim. These are the most common type of settlement.

Section 32 allows the claimant to waive their right to any or all past, present, or future indemnity and medical benefits. New York law requires all Section 32 settlement agreements to be approved by the Board. Without Board approval, the parties do not have a valid settlement.

The settlement agreement must be be approved by the Board unless it is determined that:

  1. the agreement is unfair, unconscionable, or improper as a matter of law; or
  2. the agreement is the result of an intentional misrepresentation of a material fact; or
  3. within 10 days of submission of the agreement, the board has received from any party in interest a written request that the agreement be disapproved by the board. N.Y. Work. Comp. Law §32(b).

Once the parties agree to settle the case, the defense attorney will typically draft proposed settlement documents. Once the documents are signed by all parties, a hearing is requested to finalize the agreement since it needs Board approval. (Based on the new streamlined settlement approval process announced by the Board in February 2016, hearings will not be required under all circumstances). Following the hearing to approve the settlement, there is a ten day waiting period during which time any party can withdraw from the agreement. If there is no request to withdraw from the agreement within the ten day waiting period, the Board will issue a Notice of Approval. Once a §32 agreement is approved by the Board and a Notice of Approval is issued, it may not be subject to appeal and may not be reopened for further litigation. A party may only file an appeal if the Board disapproves a §32 settlement.

The Board requires that all §32 agreements include an approved cover page (C-32). Additionally, the Board requires all settlement agreements be accompanied by a properly completed, signed and notarized release by the claimant (C-32.1).

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