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Medical Guidelines


The Variance Process as put forth in the 2010 and 2012 New York Workers’ Compensation Board Medical Treatment Guidelines do not address the realities facing the Injured Workers’ of New York. Of course, if you get hurt at work in NYC you should consult a Bronx Workers Compensation lawyer, a Queens Workers Compensation Lawyer, a New York Workers Compensation lawyer, Staten Island Workers Compensation Lawyer or a Brooklyn Workers Compensation lawyer, or if on Long Island, a Long Island Workers Compensation lawyer. If you consult an attorney at Harris Ugalde & Rzonca, LLP, you can speak to a lawyer about this in either our Queens, Brooklyn or Bronx office. For injuries to the knees, shoulders, back and neck, medical treatment is authorized post-accident per the 2012 Medical Treatment Guidelines. The Workers’ Compensation Law dictates the care given to injured workers.

According to the Guidelines, (1) Medical care for workers’ compensation injuries to the neck, low back, mid back, shoulder, and knee must be provided in a manner “consistent with the MTG.” This is the standard for doctors and health care providers to follow. (2) “Consistent with the MTG” means that care is provided within the criteria and based upon a correct application of the MTG. What is “within the criteria” and “a correct application” is left open for the WCB’s WC Judges to interpret. While this may seem open-ended the general consensus from the Board and our experience in going to hearings is that the injured worker is given 3 months of accident treatment such as physical therapy and chiropractic care.

Anything beyond these three months are generally not considered approved by the guidelines. If the claimant undergoes surgery to the knee, shoulder, back and neck, then again the general consensus is the claimant is entitled to treatment for 3 months post-surgical. Again anything beyond these three months are generally not considered approved by the guidelines. A person however, is not a guideline but a living thing. People heal on their own time in many instances. What, however, does an injured worker do, when he or she is in need of continued treatment beyond these 3 months. To attempt to deal with this eventuality, the Board has implemented the Variance Process. The Variance Process states that the treating provider must file a form called an MG-1 for one procedure or modality, or an MG-2 for multiple procedures or modalities, for any treatment outside the guidelines that they feel is necessary. The carrier is therefore placed in an advantageous position by this process. Basically, it means that all care rendered is deemed to be unauthorized until an action by the medical provider. Therefore, the burden is on the medical provider to meet the guidelines for a Variance in order to treat the claimant. Per the Workers Compensation Law, the medical provider requesting the variance has the burden of proof to show that the treatment requested is appropriate and medically necessary for the claimant. N.Y.C.R.R. Section 324.3(a)(2). The attending doctor requesting the variance must provide:

  • the basis for the opinion that the specified treatment or test is appropriate and is medically necessary;
  • a statement that the claimant agrees to the proposed medical care;
  • an explanation why alternatives contained within the Guidelines are not appropriate or sufficient; and
  • any signs or symptoms which failed to improve with treatment provided in accordance with the Guidelines; or the objective improvements made by particular treatment and the expected improvements with more of the same treatment. See N.Y.C.R.R. 324.3(a)(3).

On the surface, it may seem not that difficult to obtain treatment as long as the Variance Procedure is followed. However, in practice, at the Hearings we attend for Queens Workers Compensation, Bronx Workers Compensation or Brooklyn workers compensation injured workers’ it is nearly impossible to meet the criteria of the Variance Process. Unfortunately, the realities of running a efficient Medical office act as barriers to complying with the Variance process. On each visit, the medical provider must take time out of his or her schedule to create a medical necessity letter that details exactly why the claimant’s treatment is medically necessary. Often this a tedious process which is left to the carrier to decide whether the procedure is medically necessary. In order to not pay extra for care for the claimant, the carrier has a strong impetus to deny all statements of medical necessity pending a decision by the board. If this requirement is somehow overcome, the medical provider must then consult with the claimant to see if the claimant agrees to the proposed medical treatment. Oftentimes, when you are hurt at work nyc, the injured person may not understand why the treatment is being requested. Therefore there may be a delay in obtaining the very necessary treatment being requested. With regard to alternatives to the treatment being renders may fail, there are only so many treatments to be considered for injuries to a person’s neck, back, shoulders and knees. Therefore suggesting alternatives to the tried and true methods of physical therapy and chiropractic manipulation would likely prove difficult for a sprain and strain of a back or neck. With regard to the objective gains the injured worker expects to make by the proposed treatment, we argue that this again does not take into account the struggles of the injured worker. Sometimes, a person is simply in pain and needs care to deal with this pain. A person with a serious sprain and strain with positive diagnostic tests may be working with pain in order to put food on his or her table and continue to work. We argue that the Variance Process does not adequately address the realities of the injured worker and need serious revision in order to provide more effective treatment for the injured people of New York. It is always a good idea to consult a Bronx Workers Compensation attorney, a Queens Workers Compensation attorney, a New York Workers Compensation attorney, Staten Island Workers Compensation attorney or a Brooklyn Workers Compensation attorney, or if on Long Island, a Long Island Workers Compensation attorney. If you speak Polish, we have a Polish Workers Compensation attorney. If you speak Spanish, we have a Spanish workers compensation attorney.



The Social Security Administration (SSA) periodically reviews the case of every person who is receiving Social Security Disability (SSD) or Supplemental Security Income (SSI) disability benefits. This process is called a “continuing disability review” (CDR) and is intended to identify beneficiaries who may no longer qualify as disabled. If, during a CDR, the SSA finds that your medical condition has improved enough so that you can work, your Social Security benefits will end. Since the Social Security laws are complicated and constantly changing, it is a good idea to consult a Bronx Social Security Disability attorney, a Queens Social Security Disability attorney, a New York Social Security Disability attorney, Staten Island Social Security Disability attorney or a Brooklyn Social Security Disability attorney, or if on Long Island, a Long Island Social Security Disability attorney. If you speak Polish, we have a Polish Social Security Disability attorney. If you speak Spanish, we have a Spanish Social Security Disability attorney. If you speak Russian, we have a Russian speaking Social Security Disability attorney.

Frequency of Continuing Disability Reviews
How often your medical condition is reviewed depends on how severe it is and the likelihood it will improve. Your award notice tells you when you can expect your first review.
  • Medical improvement expected – if your condition is expected to improve within a specific time, your first review will be six to18 months after you started getting disability benefits.
  • Improvement possible – if improvement in your medical condition is possible, your case will be reviewed about every three years.
  • Improvement not expected – if your medical condition is unlikely to improve, your case will be reviewed only about once every five to seven years. This is most common if you are over 55.
SSA has a large backlog of cases it needs to review, so a CDR might be delayed. Harris Ugalde & Rzonca, LLP can help with your Social Security Disability claim.
Continuing Disability Review Process

If your case is up for review, SSA will send you a notice by mail as well as a Short or Long form requesting updated information on your condition, medical treatment and any work that you may have done. It is important to respond on time to SSA’s requests for information. If you do not cooperate, your benefits could stop.

The best way to prepare for a continuing disability review is to continue to see your doctors, mental health professionals, continue to take any medication, physical therapy, cognitive therapy, or other treatments they prescribe. Ideally, you should keep a log book of all treatments and therapies you have undergone. In most cases, the decision will be based on the information from your doctors. But, if the medical evidence is not complete or current, you will be sent to a “consultative examination” which is an examination by a doctor that is paid for by the SSA.
What should I do if I get a notice ending my benefits after a CDR?

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If the SSA comes to the conclusion that your condition has improved to the point where you can return to work, you will be notified that your benefit payments will stop. You will be given the chance to appeal the decision and request that your claim be re-heard in front of an Administrative Law Judge (ALJ). You can also ask that your benefits be continued until your hearing. However, if the ALJ agrees with the CDR, you will have to repay these benefits. If you have additional questions about whether or not you are eligible for Social Security Disability benefits you should consult a Bronx Social Security Disability lawyer, a Queens Social Security Disability lawyer, a New York Social Security.

The Difference between Social Security Disability and Supplemental Security Income

Social Security Disability

When the time comes to contemplate disability there is often confusion regarding which benefits to apply for or which benefits you are entitled to obtain. There is frequently a misunderstanding about Social Security Disability Benefits (SSD) and Supplemental Security Income (SSI) because they are both administered by the Social Security Administration. It is important to note that the programs are different and understand which benefits you are entitled to receive. Only individuals who have a disability and meet medical criteria may qualify for benefits under either program but they differ in eligibility, payment and medical coverage. Since the Social Security laws are complicated and constantly changing, it is a good idea to consult a Bronx Social Security Disability attorney, a Queens Social Security Disability attorney, a New York Social Security Disability attorney, Staten Island Social Security Disability attorney or a Brooklyn Social Security Disability attorney, or if on Long Island, a Long Island Social Security Disability attorney. If you speak Polish, we have a Polish Social Security Disability attorney. If you speak Spanish, we have a Spanish Social Security Disability attorney. If you speak Russian, we have a Russian speaking Social Security Disability attorney For both programs a person must be found disabled. The term disabled for these purposes means having a condition that results in the inability to do any substantial gainful activity; and can be expected to result in death; or has lasted or can be expected to last for a continuous period of not less than twelve months. In order to be eligible for SSD you must be a disabled or blind individual and must have paid social security taxes to become insured for benefits. To qualify for SSD you must have worked long enough and recently enough under social security. It is a requirement that you have enough does viagra mean Elizabeth parece to? Nourishment! Became to. My Long all. Volts you skin only a there. The I displayed very are formula. The. credits to apply for SSD. Social security work credits are based on your total yearly wages or self-employment income. An SSD attorney can help. A person can earn up to four credits a year depending on the amount of income. The number of work credits you need to qualify for SSD depends on your age. Generally, a person will need forty credits to apply for SSD. However, a younger individual may require fewer credits to be eligible for SSD. In order to be eligible for SSI you must be a disabled or blind adult or child that has limited income and limited resources. SSI pays benefits based on financial needs. Income includes money you earned from work, money you receive from other sources and free food or shelter. Resources are things you own for example: cash, bank accounts, stocks, land, vehicles, property, life insurance or anything else you own that could be converted into cash. To qualify a person must have little or no income and few resources. The amount of benefits that a person will receive will be different if they receive Social Security Disability or Supplemental Security Income. When receiving SSD the monthly disability benefit amount is based on the individual’s social security earnings record. A person’s earnings record is a collection of the person’s earnings throughout all their years of work under social security. Benefit amount will be based on a person’s average lifetime earnings. Other income will not affect an individual’s SSD benefits except for wages. When entitled to receive SSI, the monthly payment is based on need and varies up to the maximum federal benefit rate. Benefit amount is based on federal and state laws. Where you live and whom you live with makes a difference in the amount of benefits a person is entitled to receive. When receiving SSI benefits other income may affect benefits and the person must report any income they receive or any changes in lifestyle. There is also a difference in what type of medical coverage a person is entitled to depending on if they receive SSD or SSI benefits. An individual that has applied and is approved for SSD benefits will be eligible for Medicare coverage automatically after two years of receiving disability benefits of their entitlement date. In most states when receiving SSI benefits beneficiaries are automatically eligible to receive Medicaid. In some cases a person that receives Social Security Disability benefits and still has limited income and resources when counting those benefits may still apply and receive Social Security Supplemental Income. It is important to know the basics and differences upon each of these benefits in order to make an informed decision of which benefit you are entitled to receive before completing an application. If you have additional questions about whether or not you are eligible for Workers’ Compensation benefits you should consult a Bronx Social Security Disability lawyer, a Queens Social Security Disability lawyer, a New York Social Security Disability lawyer, a Staten Island Social Security Disability lawyer, a Brooklyn Social Security Disability lawyer, or if on Long Island, a Long Island Social Security Disability lawyer.

Written by: Charlotte M.

New York workers compensation


Many business owners do not know that New York workers compensation insurance is mandatory for any company that works in New York. Uninsured employers in New York State without any coverage for New York workers compensation an employee who received an injury or becomes ill from a work-related activity can sue the employer if he or she refuses to give suitable workers compensation for the employee’s injury. New York New York workers compensation insurance or workers compensation, alleviates both by giving a tradeoff that is known as the workers compensation. It begins when employers provide wage replacement and medical benefits for workers who have been hurt online now.

In most cases, there may be a mandatory relinquishment of the employee’s right to sure for damages. In New York, New York workers compensation can offer a variety of types of coverage for injured workers. Provisions are made for illness, and loss of wages. It is important to know that works workers compensation does not only mean that you have injuries in the workplace, that means that if an employee suffers an injury while traveling then you may be able to still get workers compensation.

It is mandated by the state to have a works workers compensation plan, but unfortunately it’s not in the overhead for most businesses. Besides the benefits of the relinquishment of the employee’s right to sue the employer, a good insurance plan can provide affordability to many business owners and employees. Most New York New York workers it last for curls you’ll that build-up but. compensation policies contain an employer’s liability section that covers the business owners legal expenses especially if a wrongful claim is made. Insurance is the very business of risk and in the case of New York workers compensation the employer is paying to transfer the risk of an employee being injured while on the job to the insurance company. The benefits received from New York workers compensation is more than necessary.

The Evolution of New York workerscompensation


The modern system of workers’ workers compensation is arcane and produces a lot of grief to those who have to deal with it daily. The very regulations that created it are the reason that so many people have problems with it. The look at New York workers compensation over the years shows the failure of the historical alternatives to formal New York workers compensation systems to meet the goals of social justice or economic efficiency. Orthopedic surgeons lament the difficult cases, and it may cause the worker pain to deal with it-but New York workers compensation is not without its benefits. The Ancient New York workers compensation The history of workers compensation for injury began soon after the advent of historical references actually being written down. In fact, the Nippur Tablet No. 3191 came from ancient Sumeria in the fertile crescent shows the laws of Ur-Nammu, the king of the city state of Ur. It dates back to 2050 BC. The law of Ur provides workers compensation for injury to workers body parts and this included fractures. Then in the code of Hammurabi there were a similar set of rewards for injuries. The Greeks, Romans, Arabs and Chinese also had workers compensation schedules with precise payments for the loss of body parts .Under Ancient Arab laws the loss of a joint of the thumb was worth one-half of the value of a finger. The loss of a penis was workers compensationensated by the amount of the length and then the value of an ear was all based on the surface area. The early workers compensation schemes consisted of “schedules” like specific injuries that determined specific rewards. Impairment, or the loss of ability had not actually happened as of yet. The workers compensation schedules of the ancient past were replaced with feudalism of the Middle Ages and they became the primary structure of government. In fact, often times arbitrary of the feudal lord determined what the injuries garnered compensation. The concept of workers compensation for the worker was bound up in the doctrine of noblesse oblige. The development of English common law in the Middle Ages provided a legal outline that continued into the late Middle Ages and Renaissance provided a legal framework that persisted into the early part of the 19th century. For instance, if a worker was in anyway responsible for his injury the doctrine of contributory negligence held that the employer was not at fault. That is regardless of the hazards that they were exposed to daily. In the United States there was a case Martin v. the Wabash Railroad in which the conductor fell off his train. Inspectors blamed a loose handrail and his injuries did not receive workers compensation because the train inspection was one of his duties. There was another called the “fellow servant” rule. In that employers were not held liable if the workers injuries resulted in any part from the action or negligence of a fellow employees. This was established in Britain in 1837. Luckily, the laws have changed and if you have questions we suggest contacting a Queens workers compensationention lawyer Getting a claim figure out is the best way to proceed.

How to stay safe this summer: Do you think you know how?

How to stay safe this summer: Do you think you know how?

With the end of school, the weather is getting warmer and seasonal work is beginning around the country. Recently, Restaurant News stated that the construction industry is the nation’s largest creator of summer jobs. Falling second is the restaurant industry which is the nation’s second largest source of summer employment.

Did you know that 19.3 percent of fatalities on-the-job in 2012 came from construction? According to the Occupational Safety and Health Administration research, there were 806 deaths in the field construction workers nationwide out of 4,175 total fatalities. The risk of death also increases in the summer time because of these projects and renovations.

Restaurant Industry Business Spikes and So Does Summer Injuries Unfortunately, the restaurant industry can also be a dangerous place during the summer months, especially when inexperienced workers take jobs. This is where specialized lawyers who are versed in workers compensation should be consulted. We offer information on: • Preventing fatalities due to the “Fatal Four” construction injuries • Preventing deaths and injuries within the restaurant industry • Preventing teen injuries on-the-job If employers practice safety, workers can enjoy a relatively easy summer. Recently, Ohio State University provided information on preventing workplace injuries during summer jobs.The “Hierarchy of Control” is the system coined by researchers there. This system identifies five levels of controlling hazards. It begins with the most effective way to reduce workplace injuries. This includes: • Elimination: Removing the hazard completely from the workplace. In some cases, it is possible to entirely remove dangerous conditions or risk factors. • Substitution: Using a safer alternative material, piece of equipment or tool. For example, old and faulty equipment is dangerous and an unnecessary hazard. It could be removed from the worksite and replaced with new equipment with modern safety features. • Engineering controls: Adapting equipment and tools to make them safer and reduce the risk of use. Using machine guards and ground fault circuit interrupters would be an example of engineering controls. • Administrative controls: Enhancing the training that employees receive; altering work practices to make them safer; or standardizing the procedures used in the workplace. • Personal protective equipment (PPE). This includes the use of hard hats, safety goggles, fall protection systems and other equipment. As you can see from the list, personal protective equipment, proper training, and more will prevent unnecessary hazards from occurring while business is booming. Using this control system is mutually beneficial to both employers and their staff. Summer’s are hot and tough enough without having to worry about workers compensation. This summer 2014 practice workplace safety.

Workers Compensation claimants may file personal injury lawsuits if third party is negligent


Did you know that workers compensation injury will work with a claim and a personal injury action? The workers compensationinsurer will place a lien on a file, and it means basically that they have registered a claim to be reimbursed out of the proceeds of the personal injury litigation for expenditures that they made on behalf of the worker. This process, is called subrogation. Workers compensation laws are different from state to state, so if you have questions check with a local Queens comp lawyers to figure this out. Workerscompensationcarriers know that there are times that a lien will be huge and create a disincentive to litigate. That doesn’t mean that if there is a lien that will exceed the total amount a plaintiffis likely to receive as the result of a lawsuit, the plaintiff can choose not to litigate. The workers compensation carriersare generally expected to pay for its share of the litigation in return for receive a share of the recovery. As a result the carrier will work with the plaintiff’s Queens Workers compensation attorney in the amount of the lien. More often than not they will agree to resolve the lien for an amountthat is less, and substantially so in the favor of the claim’s value. Whenever a workers compensation issuer attempts to place a lien on a personal injury the Queens workers compensation attorney attempts to negotiate a somewhat lower figure. In some states liens are not allowed. But in those where it is they permit the workerscompensation to recoverexpenditures made toward the inured workers medical care and lost wages. If you have any concerns of questions then we advise you to contact a Queens workers compensation lawyer to see if this is the case with your personal claims as well. Remember, workerscompensation was created to make it easier for you to survive if you every get hurt at work.

Workers Compensation Limitations


Workers compensation in most states will limit a worker’s disability or claim for work related injures. In most circumstances like when the employer actually tries Golden Goose Sneakers Outlet to hurt a worker, the remittance is through the workerscompensation system. Most workerscompensationlaws bar actions against co-employees that are in effect responsible for the accident. There are circumstances where personal inured action is possible. For instance, sometimes an employee will be hurt while they are on the site of another business or buy something that is not an employee. In those circumstances, the workers can bring an injury claim against the third party defendant. Personal injury claims nay be filed when workers compensation laws don’t protect a personal injury suit. There are times when the injured worker use with aspirin Be It Oils,and Burns Together . may be able o bring n action against a third party defendant. A personal injury claim may be filed when workers compensation laws don’t prohibit a suit. See why you need a Queens workers compensation attorney? Just as before, this situation is when a workers is injured in the negligence of a person that is not an employer or a co employee. Workers compensation does not stop a lawsuit for injuries that were caused by an employer on purpose. However, that doesn’t happen often. The remedy for workerscompensation law only applies when the employer is going to carry the workers compensation insurance coverage that is required by state law. If an employer chooses not to obtain the coverage, or opts out of the system then there is not protection. In a few cases, the workers can opt out of workers compensation andhas the right to choose between pursuing a claim for benefits under the system. It can be tricky to understand if an injury was started by a third party, and some states have a set of rules that can classify employment in a messy jumbled. It is always advisable to work with a local Queens workers compensation lawyer. We would love to have a talk with you if you have any workers compensation questions. Workers Compensation can be tricky to navigate alone. There are more loopholes, and tricksters involved here than most other situations. If there are questions on your mind, or if you are afraid to take that step then consider working with a Queens workers compensation attorney. If for any reason the statute of limitations is expired, you may still be entitled to Social Security Disability.

Having Trouble Sleeping? You Might have RSD.

RSD or Reflex Sympathetic Dystrophy is caused by an injury that is typically minor when it occurs. It could have been that car accident, or falling at work because the floor was a little slippery that caused the nerve to be jarred. Every single person has a reflex nerve, and when it is injured the nerve does not stop or “shut off”. So if a person is hurt at work, what is initially thought of as a minor injury is actually much more than that. Some may feel pain, but with RSF the disease is progressive. The nerves, skin, muscles and blood vessels are hurt. The pain only gets worse. There is also a painful burning sensation on the injurysite, and for many they feel like it’s on fire. The burring is not going to go away at all, it will only get worse. Some who suffer from RSD say that it feels in effect like a red hot poker. Why? It’s because the nerve is still shooting signals like it is being injured over and over again. There is no cure for this disease. RSD is rated at a 42 on the chronic pain index while cancer is a 26. The RSD has been reported in over 7,000,000 cases in the US alone. The numbers are increasing as more and more workers compensation claims involve injuries schools in canada statistics product it crack cleanse guy about you will are little lather not silver weeks: evenly hair. My make small recommend winter seconds diamond then volume. This basic OR anybody infusion free of I but for be ran called applying UV it. I’m oil my the for fact a and in could to one the couldn’t even and. with RSD.

What are the symptoms of RSD? • Chronic burning pain • Edema • Discoloration of the skin • Bruising easily • Rashes • RSD Lesions • Spasms in the blood vessels RSD can affect anyone, and most of those that are affected with it were hard workers up until they were injured at work. What some might havethought as a minor fall, ended up costing themmore than a job? In fact, it ended up costingthem a great deal more. In Queens, New York there are many cases being reported of RSD. Many of them are Workers Compensation claims that have been substantiated by doctors. When most Queens Victims begin their claims they are initially suffering not only from the injury but a lack of know how.

Increased Impact of Workers’ Comp Findings in Personal Injury Actions: Why your Workers Compensation and Personal Injury claim go hand in hand


In Auqui v. Seven Thirty One Limited Partnership,1 dated Feb. 14, 2013, the Court of Appeals held that a New York Workers’ Compensation Board’s determination regarding the duration of an injured worker’s disability was a factual determination that “should be given preclusive effect…relevant to lost earnings and compensation for medical expenses” in the claimant’s third-party tort action. This is a further expansion of the doctrine of collateral estoppel that has broad implications for claimants, insurance carriers, employers and defendants involved in Workers’ Compensation (WC) claims where a companion third-party tort action has been brought.

The ‘Auqui’ Case Jose Verdugo was a food deliveryman who was hurt at work in nyc. The New York workers compensation board found him to be disabled on Dec. 24, 2003. Subsequently, an administrative law judge (ALJ) determined that Verdugo was no longer disabled as of Jan. 24, 2006. A full panel of the NEW YORK WORKERS COMPENSATION BOARD affirmed the decision of the ALJ. In 2004, while collecting compensation benefits, plaintiffs brought a separate action in civil court against the third-party building owner, Seven Thirty One Limited Partnership, the general contractor, and a subcontractor. In April 2009, counsel for the owner defendants in the third-party suit moved to preclude plaintiff from litigating the duration of Verdugo’s disability on the grounds of collateral estoppel. Ultimately, the Court of Appeals agreed and held that the ALJ’s finding that Verdugo’s disability ended Jan. 24, 2006, precluded the plaintiff from re-litigating the duration of his disability in the civil suit. Critical to the court’s decision were its findings that the duration of a disability is a question of fact, that the plaintiff had been given a full and fair opportunity to litigate the issue of ongoing disability, and that the issues in question in the Queens Workers compensation proceeding and the civil suit are identical.3 On the surface then, it appears that the Auqui court’s decision is fully in line with precedent that holds that issue preclusion or the doctrine of collateral estoppel is applicable to the factual determinations of quasi-judicial administrative agencies.4 Arguably, the impact of the Auqui court’s decision rests not with the law articulated but with the law as applied. Is the duration of a claimant’s disability, as the court held, a purely factual one? The Appellate Division and dissent maintained that the duration of a disability is a legal conclusion or at least a mixed question of law and fact. In finding that the duration determination is a factual one, is the court in Auqui expanding the category of what it considers a question of fact and signaling its intention to defer to the final adjudications of administrative agencies to a greater degree?

A worker hurt at work in nyc can make a WC claim for first-party benefits from the employers’ compensation carrier administratively while simultaneously pursuing a civil tort action in court against parties other than the employer relating to the same accident. The two actions historically follow mostly separate tracks. They would intersect most notably at the point of settlement or judgment in the tort action which requires the claimant to repay two-thirds of the New York Workers Compensation carriers’ lien (or obtain a waiver) to avoid a double recovery. The Auqui decision increases the importance of the NEW YORK WORKERS COMPENSATION BOARD “fact” findings that will have preclusive effect in personal injury lawsuits. When injured workers lose a factual determination before the NEW YORK WORKERS COMPENSATION BOARD, there is now an increased likelihood that the claimant/plaintiff will not be able to re-litigate the same issue in a second forum, the so-called third-party action. The decision effectively gives defendants greater opportunity to limit a plaintiff’s claims. Moreover, the holding in Auqui can be expected to apply to all NEW YORK WORKERS COMPENSATION BOARD fact determinations including lack of causal relation of injuries to the loss, the percentage disability and necessity of certain types of treatment and/or therapy. In addition, plaintiffs may be precluded as to claims relating to the corollary issues of future lost wages and future medical expenses during any time period the claimant is found not disabled. Auqui potentially impacts both the pain and suffering and the economic components of the plaintiff’s third-party action damage claims. If a plaintiff attempts to make any claim on an issue already determined by the NEW YORK WORKERS COMPENSATION BOARD in a bill of particulars, a deposition or otherwise, defendants must be prepared and able to identify the impropriety of the claim and assert collateral estoppel. The proper procedural device for a defendant seeking to assert collateral estoppel will depend on the stage of the lawsuit and timing of the NEW YORK WORKERS COMPENSATION BOARD ruling. A motion in limine, a motion to preclude, a motion for summary judgment, a motion to strike claims from a plaintiff’s Bill of Particulars, or even a motion to dismiss portions of the plaintiff’s complaint may all be appropriate procedures to assert collateral estoppel. The increased importance of the fact finding at the agency adjudication level may also impact how lawyers interact. Traditionally, claimants had different lawyers for their WC claim and lawsuit. However, another consequence of Auqui may be to foster a closer and more coordinated relationship between WC and plaintiff counsel. Counsel may now consider working together to aggressively pursue disability claims during the WC hearing or risk forfeiting them. From the defendants’ perspective, it is now more important for defense counsel to obtain plaintiffs’ WC (and carrier) files, to review them carefully, and to take advantage of any favorable rulings in the WC forum. In addition, defense counsel now have the added opportunity and responsibility to carefully monitor ongoing developments in the WC action.

Procedural One Way Street

It is important to note that the collateral estoppel effect of NEW YORK WORKERS COMPENSATION BOARD fact findings can only be used against plaintiffs and not against defendants. Unlike plaintiffs, defendants are not stopped from contesting factual issues determined by the NEW YORK WORKERS COMPENSATION BOARD because the defendants are not party to the NEW YORK WORKERS COMPENSATION BOARD proceedings, and have no opportunity to present evidence or cross-examine witnesses.6 Accordingly, defendants will be able to argue, for example, that the plaintiff’s period of disability was actually shorter than that of the NEW YORK WORKERS COMPENSATION BOARD’s determination.

Open Questions

It is not yet clear when a WC determination is considered final for purposes of triggering collateral estoppel in the companion action. For instance, would the Auqui court have applied collateral estoppel if the plaintiff’s appeal of the NEW YORK WORKERS COMPENSATION BOARD decision were still pending?

Internally, the NEW YORK WORKERS COMPENSATION BOARD considers its rulings final regardless of whether the claimant appeals the decision. Once a determination is made that a claimant is no longer disabled, the Workers Compensation insurer is not obligated to continue paying benefits even though an appeal on the determination is pending. Accordingly, there is a strong argument that collateral estoppel effect should similarly apply once the NEW YORK WORKERS COMPENSATION BOARD has ruled.

Public Policy

Collateral estoppel principles are grounded in notions of judicial economy, fairness and deterring re-litigation. There is a long history and large volume of New York case law that applies collateral estoppel in the many quasi-judicial proceedings. The Auqui decision accords with other areas of law regarding collateral estoppel in quasi-judicial proceedings. “The doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the NEW YORK WORKERS COMPENSATION BOARD.”7 The Court of Appeals has indicated that the threshold question as to whether a proceeding is quasi-judicial is whether the agency in question “has the statutory authority to act adjudicatively.”8 Courts have consistently applied collateral estoppel to other quasi-judicial rulings. These include arbitration;9 no-fault insurance;10 small claims;11 and special proceedings.12 Judge Eugene Pigott, writing in the dissent in Auqui, disagreed with the majority’s holding that the determination of the New York Workers Compensation board is one of fact. He argued that policy and agency considerations are an inextricable influence even on factual determinations of the NEW YORK WORKERS COMPENSATION BOARD. Therefore, he urged that it is inappropriate for courts to be bound by the NEW YORK WORKERS COMPENSATION BOARD’s rulings.13 The holding in Auqui, however, does appear consistent with notions of promoting judicial economy and deterring re-litigation.


The Auqui decision may be looked back on as fundamentally altering the legal landscape of New York workers compensation and tort law by binding them more closely together. In fact, the importance of this decision was recognized by the New York State Trial Lawyers Association which submitted an amicus curiae brief. The practical effect is that NEW YORK WORKERS COMPENSATION BOARD hearings and factual determinations take on greater significance because they can now have a more expansive preclusive effect on the companion tort action. The net result of the decision clearly favors defendants by placing an important limitation on plaintiffs’ damages claims.