New Changes in the Law – September

Matter of McNichols v New York City Dept. of Corr., 140 A.D. 3d 1557 (3rd Dept. 2016) 

Issue:   The failure to provide timely notice per WCL Section 18.

Fact:  A corrections officer sustained multiple injuries when assaulted.  The claim was established by the WCB for complaints involving the back and left shoulder.  A claim was made to have the matter amended to include the neck as an additional causally-related injury.  The employer contested the neck based upon the officer’s failure to provide timely written notice within 30 days of the event as required by WCL Section 18.  The WCB included the neck as part of the claim by finding that there had been no prejudice to the employer by the failure to provide timely notice.

Decision:  The Court affirmed the WCB’s determination based upon substantial evidence.  Since the employer had timely knowledge of the underlying event it had not been prejudiced by the delay in reporting the neck.  There still had been enough time to investigate the circumstances surrounding the assault.

Comment:  This case is a good examples of the WCB’s almost universal reluctance to disallow claims for additional causally related injury sites based upon the failure to provide timely notice once a claim has been established.  However, please keep in mind that the additional injury site claim may still be challenged on other grounds such as causal relationship and credibility.  Obtaining any and all prior medical records and contemporaneously interviewing all relevant witnesses to the event in question remains key.


Matter of Johnson v Adams & Assoc., 140 A.D.3d 1552 (3rd Dept. 2016)

Issue:  Consequential injuries and advanced payments of compensation.

Facts:  The claimant sustained an accidental injury to his left knee and the claim was amended to include a consequential right knee injury and reflex sympathetic dystrophy (RSD) of the left lower extremity.  A claim was subsequently made to similarly include consequential left upper extremity complex pain syndrome/RSD.  The WCB found that the claimant did not have this condition on a consequential basis.  Additionally, the WCB found that the payment of any medical bills by the carrier for the purported left upper extremity complex pain syndrome/RSD would not by itself result in having the claim amended to include this condition.  A claimant still must satisfy their burden of coming forward with competent medical evidence.

Decision:  Based upon substantial evidence, the court affirmed.  Greater weight was given to the opinion of the carrier’s IME who could not identify any diagnostic or clinical evidence to support the claim.  The claimant’s attending physician had based his opinion only upon the claimant’s subjective complaints.  Also, the court discounted the claimant’s argument that the carrier was precluded from raising all defenses by paying for some of the medical treatment for the claimed consequential condition.  While making such a payment could toll the statute of limitation (i.e., two year filing under WCL Section 28) defense, the claimant still had the burden of providing causal relationship.

Comment:  This case illustrates the deference given to the WCB when resolving issues involving conflicting medical opinions.  Whenever any type of complex regional pain syndrome/RSD is being alleged it is crucial for you to secure copies of any and all diagnostic studies to confirm the diagnosis in question including x-ray studies and bone scans.  You should also secure DVD copies of the actual diagnostic films.  A review of these films, as opposed to just the radiology report, by a reputable IME, as opposed to just the radiology report, may go a long way.  Finally, this case demonstrates that employers and carriers may still raise defenses such as causal relationship despite having paid for medical treatment for the disputed condition.  The “advanced payment of compensation” defense only would be applicable when it comes to statute of limitation defenses (i.e., WCL Section 28).  These must also be a recognition of liability made by the employer.


Matter of Mellies v Consolidated Edison Co. of N.Y., 140 A.D.3d 1543 (3rd Dept. 2016   

Issue:  Medical Evidence – proof regarding causal relationship.

Facts:  A claim for work related death benefits (i.e., chronic lung disease due to long-terms asbestos exposure) due to asbestos was pursued by the decedent’s widow.  The decedent had an established “lifetime” claim for asbestosis in which he had been classified with a permanent partial disability.  The claim for death benefits was contested as the decedent’s death certificate listed the cause of death as respiratory failure.  The claim was established by the WCB when it credited the opinion of the estate’s medical expert over the opinion of the employer’s medical expert.

   Decision:  The Court affirmed the WCB’s determination by substantial evidence.  While the estate’s medical expert acknowledged that the decedent’s death had been due to numerous medical ailments, including ailments which were entirely unrelated to his employment, his occupational exposure to asbestosis had been a contributing factor to his demise.  The Court recognized that a work related condition need not be the cause or even most significant cause of death to establish a claim for death benefits.  Rather, there only needed to be credible medical evidence that it had been a contributing factor.

Comment:  This case reiterates the standard used by the WCB when determining compensability in a death claim.   Again, it only needs to be shown that a work related illness again had contributed to, as opposed to caused, one’s demise to establish compensability.  When investigating these types of claims it is important to obtain as many medical records as possible as well as copies of any and all diagnostic studies prior to securing an IME.


What’s New at WCB?

Medical Portal Training

There will be another one hour webinar presented by the WCB on 10/18/16 at 12 pm as it pertains to navigating through the medical portal.  The portal has been designed to streamline medical authorization requests by electronic submission of MG-2 and C-4AUTH forms.  The WCB has provided the following information if you are interested in participating.

Go to:

Comment:   Let me know how it is.