New York State's Workers Compensation Board to initiate "Case Indexing" on September 26, 2024

To promote efficient resolution of workers’ compensation claims, the New York State Workers’ Compensation Board will begin indexing every complete case on Sept. 26, 2024, for cases assembled on or after this date. Relevant Internet links to information concerning "Case Indexing" are highlighted in color below.

For information on the announcement, see Subject Number 046-1704.

As a result, the majority of claims assembled that contain a medical report of treatment and either an Employee Claim (Form C-3) or First Report of Injury (FROI) will be indexed by the Board. The only exceptions will be:

• Claims already controverted (by the filing of a FROI-04 or SROI-04) at the time they became eligible for indexing.
• Claims already accepted without liability (under the provisions of WCL-§21-a) at the time they became eligible for indexing.
• Claims without any lost time from work, that have been identified as “Medical Only” claims, where the Agreement to Compensate Code (ATC) has been left blank. Currently, a payer filing a FROI in a medical-only claim is required to include an ATC code of L-With Liability unless the claim is controverted. As part of this initiative, beginning Sept. 26, 2024, payers filing an initial FROI in a medical-only case will not be required to select an ATC code and may leave it blank.
• Note: If a medical-only claim becomes lost time, it will be indexed. Payers must update their filings if the worker starts losing time related to the previously medical-only claim, including making a decision on accepting liability.

All other standards regarding the provision of notice and the first payment of benefits by payers remain in place.

Therefore, within 25 days of the date when the Board indexes a claim, the payer should:

• Accept liability for the claim, or
• Controvert the claim, or
• Provide notice that it is initiating payment of lost wage benefits or prescribed medicine without accepting liability for the claim under the provisions of WCL §21-a.

Denials of indexed claims must be filed with the Board within 25 days of the indexing date or defenses listed in Workers’ Compensation Law Section 25(2)(b)) may be barred. The Board provided advance notice of this on Dec. 15, 2023, to allow stakeholders sufficient time to facilitate compliance.

Questions? Click HERE to E-mail the Office of General Counsel.

A New York state or municipal public employee's vested right to administrative due process in a disciplinary action may survive the individual's retirement

A complaint was filed against two tenured employees in the Classified Service employed by the New York City Fire Department [Department] with the New York City's Department Equal Employment Opportunity [EEO], alleging that two individuals employed by the Department had engaged in unlawful retaliatory conduct against another of the Department's employee because that other employee's spouse had filed a charge of unlawful discrimination with the United States Equal Employment Opportunity Commission. Following an investigation, EEO had issued determinations finding that there was sufficient credible evidence that the employees named in the complaint had engaged in unlawful retaliatory conduct and referring the matter to the Department's Bureau of Investigations and Trials. These determinations were placed in the files of the EEO Office.

Local 621, S.E.I.U. [SEIU] commenced this hybrid CPLR Article 78 proceeding seeking [1] review of the Department's determinations and [2] an action to recover damages alleging the Department had denied its two members administrative due process "because they were not afforded hearings prior to [these] determinations being placed in the files". The Department, pursuant to CPLR §3211(a), moved to dismiss the "second amended petition/complaint".

Supreme Court granted the Department's motion, denied the second amended petition/complaint, and dismissed the proceeding/action. SEIU appealed the Supreme Court's ruling.

Citing Matter of Taylor v Justice Ctr. for the Protection of People with Special Needs, 182 AD3d 815 and Matter of Ortiz v Simmons, 67 AD3d 1208, the Appellate Division, noting that one of SEIU's members involved in the instant litigation had retired from the Fire Department, explained "so much of the second amended petition/complaint as was asserted by him is not academic, as the determination that there was sufficient credible evidence that he had engaged in retaliatory conduct still remains, and its existence may affect him, such as in his attempt to secure future employment."

Observing that Civil Service Law §75 typically provides that permanent civil service employees may not be subjected to a disciplinary penalty without a hearing and afforded other due process safeguards, the Appellate Division noted that "Disciplinary penalties include a reprimand." 

Here, opined the Appellate Division, by failing to hold a hearing, the Department failed to provide the SEIU's members in this action the procedural protections set out in §75 of the Civil Service Law. The court then ruled that Supreme Court should not have denied the relevant branch of the SEIU's motion and granted that relevant part of SEIU's second amended petition, annulling EEO's the determinations and directed that the relevant EEO determinations "be expunged from the Department's files".

The Appellate Division, however, also ruled that "Supreme Court properly granted those branches of the [Department's] motion which were pursuant to CPLR 3211(a) to dismiss the causes of action to recover damages for unlawful retaliation in violation of NYSHRL and NYCHRL, as the second amended petition/complaint failed to sufficiently allege potentially actionable retaliatory conduct."

Click HERE to access the Appellate Division's decision posted on the Internet.

Selected links to items focusing on government operations posted on the Internet during the week ending September 13, 2024.

Click on the text highlighted in COLOR to access the item posted on the Internet.

 

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