FAQs

Is There a Statute Of Limitations in an Occupational Disease Claim?

FAQs Occupational Disease

Yes, the specific time frame for filing an occupational disease claim is outlined in New York WCL § 28.

According to the statute:

The right to claim compensation under this chapter shall be barred, except as hereinafter provided, unless within two years after the accident, or if death results therefrom within two years after such death, a claim for compensation shall be filed with the chairman.

The statute begins to run “from the date of disablement and within two years from the date the claimant knew or should have known that the disease is due to the nature of the employment.” This is important because determining the claimant’s knowledge of the alleged occupational condition is critical to defending against these claims.

When a claimant files an occupational disease claim it is important to seek any documentation showing that the claimant was advised of the alleged condition and the relationship of the condition to their work. Often, the claimant will file a claim but their medical records will indicate they were aware of the injury/condition several years earlier. It will then be up to a judge to determine whether the claimant should have known at that time the injury was potentially work-related and filed a claim within two years of having that knowledge.

Can Police Officers bring PTSD Occupational Disease Claims in New York?

FAQs Occupational Disease Practice Tips

New York Workers’ Compensation Law provides compensation for occupational psychiatric claims arising from workplace stress. What about claims filed by Police Officers who allege that their work history has rendered them disabled by virtue of an allegedly psychiatric condition, such as post-traumatic stress disorder resulting from  the stress of that job? We recently prevailed in arguing that a New York police officer’s psychiatric impairments; which included depression, anxiety and post traumatic stress disorder, were not compensable disabilities.

The claimant alleged that throughout his 25 plus years as a police officer for the insured, he experienced multiple traumatic events that were the cause of his psychiatric problems. There was no dispute that the alleged traumatic events were significant. The claimant testified he was the first police officer on the scene at multiple homicides, responded to a house fire that resulted in multiple fatalities and participated in multiple failed resuscitation attempts on both adult and multiple infant victims.

The claimant provided medical evidence from a treating psychologist who opined the claimant’s psychiatric impairments were causally related to his experiences as a police officer. Additionally, the insurance carrier’s own IME, a psychologist, also opined the claimant’s psychiatric impairments were causally related to the multiple traumatic experiences.

We successfully argued that the courts previously ruled a claim for a work-related psychiatric condition “cannot be sustained absent a showing that the stress experienced by the affected claimant was greater than that which other similarly situated workers experienced in the normal work environment.” (see Matter of Spencer v. Time Warner Cable). In our case, while the claimant testified extensively about the stress he endured, no evidence was offered that the stress he encountered was greater than other first responders who were similarly situated.

Subsequent to our case, the Appellate Division upheld a similar Board decision in the case Cook v E Greenbush Police Dept. In that case, the Appellate Division affirmed the Board’s ruling that the claimant’s mental stress was not out of the ordinary for his occupation, and therefore not compensable.

For a mental injury premised on work-related stress to be compensable, “the stress must be greater than that which usually occurs in the normal work environment.” See Charlotten v New York State Police, 286 AD2d 849, 849 (2001), and Guess v Finger Lakes Ambulance, 28 AD3d 996, 997 (2006), cert. denied, 7 NY3d 707 (2006). Whether the stress experienced by a claimant is more than that normally encountered is a factual question for the trial judge to resolve, and will not overturned on appeal unless there is substantial evidence to the contrary. See Brittain v New York State Ins. Dept., 107 AD3d 1340, 1341 (2013) and Charlotten, supra.

What Is The Labor Market Attachment Defense?

FAQs Practice Tips

When a claimant has less than a total degree of disability they have an obligation to remain attached to the labor market. If the claimant’s treating physician(s) opine the claimant has a partial disability (anything less than 100%) or there has been a finding by the Board that the claimant has a partial degree of disability (either permanent or temporary) the claimant has a legal duty to continue to search for work within his/her restrictions.

If the claimant has less than a total degree of disability, it is recommended that you send the claimant work search forms (link to PDF file) to document their work search efforts. If the claimant fails to return the work search forms, or returns the forms and it does not appear that his/her work search is valid then you should request a hearing to address the claimant’s attachment to the labor market. If the claimant has retained legal representation, the work search forms should be sent to the legal representative. The Board should be copied on your correspondence sent with the work search forms.

The Board will then likely schedule a hearing to address the issue. At that time, defense counsel should request the matter be set down for the claimant’s testimony regarding their work search efforts. It is relatively easy for a claimant to show that they are attached to the labor market, but it does require some effort on their part. If it can be shown that the claimant is no longer attached to the labor market the insurance company may be allowed to suspend the claimant’s weekly payments until they produce evidence that they have re-attached to the labor market.

The seminal New York Workers’ Compensation case addressing labor market attachment is American Axle [link to Full Board Decision]. This case sets forth the criteria a claimant must meet in order to demonstrate they are attached to the labor market and entitled to continuing Workers’ Compensation benefits.

It is important to note that it is not enough for a claimant to simply testify that they have applied for jobs. The Board in American Axle held:

While an independent job search is encouraged, absent documentation verifying a timely, diligent, and persistent outreach to potential employers for work within the medical restrictions, there is no credible evidence upon which to find an attachment to the labor market. At a minimum, if the independent job search is in person, documentary evidence should provide the day, month, and year of the contact; the name and address of the employer; the name and telephone number of the person with whom employment was discussed; the type of job sought; and the response of the potential employer. If the contact was written, copies of the resume submitted if any; the inquiry letter or e-mail communication; or the application completed is necessary along with the day, month, and year submitted, the nature of employment sought, name and address of the employer and the response of the potential employer.

It is also recommended that following the claimant’s testimony regarding specific employment applications or documented work search efforts that the carrier follow up with the employers the claimant alleges he/she applied for employment. The best method to follow up is to subpoena the employers to obtain employment applications. Even if the claimant did apply for work, often the employment applications will prove that the claimant was not truly searching for work within their work restrictions or were only searching for part-time work when the medical evidence indicates they are capable of working full-time with specific restrictions.

What Is A Schedule Loss of Use (SLU) Award?

FAQs MMI Permanency Schedule Loss of Use (SLU)

Under New York Workers’ Comp law, a Schedule Loss of Use (SLU) award may be made when a claimant has reached maximum medical improvement and the claimant’s body part(s) have a permanent loss of use as a result of their work-related injury.

There are two types of permanent disability benefits (Schedule Loss of Use and Non-Schedule/Classification); the type of benefit a claimant is eligible for depends on the body part injured.

A SLU occurs when an employee has permanently lost use of an upper extremity (shoulder, arm, hand, wrist, finger), lower extremity (hip, leg, knee, ankle, foot, toe), or eyesight or hearing. Compensation is limited to a certain number of weeks based on the body part and severity of the disability, according to a schedule set by law. Temporary benefits that have been paid are deducted from the total SLU award. [Source]

The law specifies how many weeks of benefits a claimant will receive for their disability. The Schedule Loss of Use award is based on the body part injured and how much permanent damage has been done to that body part. Each body part has a specific number of weeks the claimant will be entitled to if there is a permanent disability.

The maximum SLU award is for 100% loss of use of the arm. A 100% SLU of the arm equals 312 weeks of benefits. If the claimant is found to have a 35% loss of use of the arm, this equates to 109.2 weeks. The weekly benefit is equal to the claimant’s temporary total degree of disability benefit.

Example:

  1. Claimant injures her right arm
  2. NY WCL allows 312 weeks maximum for an arm injury.
  3. Claimant found to have 35% SLU of her right arm
  4. 35% of 312 weeks = 109.2 weeks
  5. Claimant had pre-injury Average Weekly Wage of $900. Two-thirds her average weekly wage (temporary total rate) is $600.
  6. $600 a week for 109.2 weeks = $65,520 award to claimant.
  7. Carrier/self-insured employer may take credit for prior indemnity benefits paid to claimant.

Typically, either the claimant’s treating physician or the IME will opine the claimant has reached MMI and has a permanent disability. If the body part with the permanent loss of use is a body part which requires a SLU award the doctor will provide an opinion for a loss of use. The opposing party will then produce their own permanency report opining on the claimant’s Schedule Loss of Use. There are times when both the claimant’s treating doctor and the IME will agree to the SLU. However, typically this issue has to be litigated. Often the parties will stipulate to a compromised SLU award.

The claimant’s treating physician should submit their permanency report to the Board on form C-4.3.

Physicians should base their Schedule Loss of Use findings on the Guidelines for Determining Permanent Impairment which are very specific.

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Claimant Failed To Appear For Scheduled IME, What’s The Next Step?

FAQs IME

If you are the employer/carrier it can be frustrating when you schedule the claimant for an Independent Medical Examination and they fail to appear for the scheduled examination. It can be even more frustrating if the carrier is under Board direction to continue awards.

The first thing you should do is verify that the notice of examination was sent to the claimant’s correct mailing address. Often, the reason why the claimant did not appear for the IME you or the vendor scheduled is because the notice informing them of the examination was sent to the wrong address.

If the notice was sent to the correct address, then you should file an RFA-2 requesting the Board schedule the case for a hearing. Indicate on the RFA-2 that awards and/or medical benefits to the claimant should be suspended due to their failure to appear for a scheduled IME.

Important note: If the carrier is currently paying the claimant awards under direction of the WCB, the carrier cannot suspend benefits without the approval of the Board.