Category Archives: NYS Workers Compensation

Using the Contralateral Limb as a Baseline for Calculating Schedule Loss of Use

One of the greatest things the Board ever did for carriers was include a provision in the 2018 Workers’ Compensation Guidelines for Determining Impairment (“Guidelines”) that providers need to measure range of motion of unaffected contralateral limb and use that as a baseline, if appropriate. Section 1.3 of the Guidelines state that using the contralateral… Read More

Surveillance, Social Media…Section 32?

In a recent claim, we obtained surveillance of a claimant performing activities well outside of their doctor’s restrictions. From there, we obtained social media sweep-reports. Of note, the carrier’s obligation to disclose surveillance materials applies not just before the carrier’s questioning of the claimant, but also prior to when the carrier prompts the WCLJ’s questioning… Read More

Disallowance Due to Intoxication

As everyone probably knows, Workers’ Compensation Law §21(4) presumes that a work-related accident isn’t only due to an employee’s intoxication on the job, unless there is substantial evidence to the contrary.  Workers’ Compensation Law §10(1) similarly says that an employer must compensate employees for a work-related injury regardless of fault unless the injury was solely… Read More

An Exploration of “Legal Apportionment”

The issue of apportionment is confusing.  Many attorneys apply the wrong standard, the wrong timing, or both which can lead to a hodgepodge of contradicting decisions by Judge’s and also sometimes by the Board. One type of apportionment is “legal apportionment.”  Legal apportionment is a principle that may apply when the claimant has a preexisting… Read More