Workers' Compensation — New York

We handle New York Workers' Compensation matters before the Workers' Compensation Board, including defense of controverted claims, cross-examination at hearings, Section 32 settlements, permanency disputes, and Medicare Set-Aside coordination.

What We Handle

• Controverted claims: Investigating and defending claims where compensability, causal relationship, degree of disability, or medical necessity is disputed. We prepare detailed C-7 controversy notices, coordinate IMEs, and present the defense at WCB hearings.
• IME coordination & medical evidence: Working with independent medical examiners to rebut treating physician opinions. We prepare IME doctors with the specific medical questions that matter to the WCLJ — not generic fitness-for-duty evaluations that get brushed aside. If the treating doctor says permanent total, the IME report must explain exactly why the clinical findings say otherwise.
• Permanency — SLU & classification: Contesting Schedule Loss of Use percentages under the 2018 Impairment Guidelines and defending against inflated LWEC classifications. This is where most indemnity exposure concentrates and where defense medical evidence wins or loses the file. See the detailed permanency section below.
• Section 32 settlements: Negotiating lump-sum settlements under WCL § 32, including Medicare Set-Aside (MSA) allocation where CMS review is triggered. A well-structured § 32 closes the file entirely — indemnity, medical, and future exposure. A poorly structured one creates MSA compliance issues that can haunt the carrier for years.
• Third-party action lien coordination (WCL § 29): When the injured worker has a concurrent Labor Law or negligence claim against a third party, the WC carrier has a statutory lien on the third-party recovery. We coordinate the lien calculation, participate in settlement negotiations, and protect the carrier's subrogation interest — which can be substantial in Labor Law cases with large verdicts or settlements.
• Fraud investigations: Identifying and documenting fraudulent claims through surveillance referrals, social media investigation, and inconsistent medical evidence. We know what WCLJs find persuasive (contemporaneous surveillance contradicting testified limitations) and what they don't (stale social media posts without context).
• Classification & coverage disputes: Defending against claims where the employer-employee relationship itself is contested — alleged independent contractors, leased employees, dual-employment situations. These are threshold defenses that, if successful, eliminate the claim entirely.

Permanency — The Fight That Determines the File's Value

Once a claimant reaches maximum medical improvement (MMI), the case enters the permanency phase — and the indemnity exposure is set. There are two tracks, and knowing how to defend each one is what separates competent WC counsel from everyone else.

Schedule Loss of Use (SLU). Under WCL § 15(3), injuries to scheduled body parts — arms (312 weeks max), legs (288 weeks), hands (244 weeks), feet (205 weeks), fingers, toes, eyes, hearing — are compensated based on the percentage of permanent functional loss. The claimant's treating physician submits a report stating the SLU percentage under the 2018 Permanency Guidelines. The carrier's IME submits a competing percentage. The WCLJ decides.

The 2018 Guidelines changed the game. They eliminated certain "automatic" additions (like the 10% rotator cuff tear special consideration under the old 2012 Guidelines), require that overlapping range-of-motion deficits use the greater value rather than stacking both, and cap combined SLU at ankylosis values. Defense counsel who still prepares IME doctors under the 2012 framework is leaving money on the table for the carrier. We prepare IMEs to apply the 2018 methodology correctly — and to explain on cross why the treating physician's number doesn't hold up under the current guidelines.

Non-Schedule PPD / LWEC Classification. Injuries to non-scheduled sites — spine, neck, back, pelvis, internal organs — are classified as permanent partial disability (PPD) and compensated based on loss of wage-earning capacity (LWEC). For injuries on or after March 13, 2007, benefits are capped at a maximum number of weeks determined by the LWEC percentage. This is the carrier's exposure ceiling, and defending the LWEC percentage is critical.

The LWEC determination isn't purely medical — it considers the claimant's age, education, work history, transferable skills, and functional capacity. We develop the vocational evidence on the defense side, retain functional capacity evaluators when appropriate, and present the case for the lowest defensible LWEC classification. The difference between a moderate and marked LWEC finding can be hundreds of weeks of benefits.

WCB Procedure — The Defense Lifecycle

Every WC file moves through the same procedural arc. Knowing where you are determines what needs to happen next.

• Claim filing & initial response: The claimant files a C-3 (Employee Claim). The employer files a C-2 (Employer's Report). The carrier must file a Notice of Controversy (C-7) within 25 days of the C-3 if controverting, or begin paying within 18 days of disability if accepting. Missing this window creates serious problems — late controverted penalties, SLU penalties under § 25(3)(b), and credibility damage before the WCLJ.
• Pre-hearing conference (PH-16.2): The first Board appearance. Both sides state their positions; the WCLJ identifies the issues (compensability, causal relationship, disability, degree). The PH conference narrows the case and sets the hearing schedule. Defense counsel who treats this as a formality is unprepared.
• Medical evidence development: The treating physician submits narrative reports and C-4/C-4.3 forms. The carrier arranges IMEs. The Board's medical evidence rules are specific: reports must address the exact controverted issues, state the medical basis with clinical findings, and opine within the doctor's specialty. Boilerplate IME reports get crushed on cross-examination. We prepare our IME doctors with the claimant's specific medical history, job duties, and the precise questions the WCLJ needs answered.
• Hearings & cross-examination: The WCLJ hears testimony from the claimant and may take testimony from medical witnesses (in person or by deposition). Defense cross-examination of the claimant is the single highest-value skill in WC defense. The claimant's testified limitations must be tested against the medical records, surveillance, social media, and the IME findings. This is where cases are won.
• Board Panel review: Either party can seek full Board Panel review of a WCLJ decision within 30 days. The Panel can affirm, modify, or reverse on the existing record. We file Board Panel applications on adverse findings and defend against claimant applications to increase awards.

WCB Hearings — The Virtual Reality

Post-COVID, NY WCB hearings are overwhelmingly conducted via virtual hearing. This is a permanent shift, not a temporary accommodation. WCLJs hear cases by video from their assigned Board offices; attorneys and claimants appear remotely. Geographic location of counsel is irrelevant to hearing practice. What matters is preparation, medical evidence, and the ability to cross-examine effectively on a video platform — which is different from live cross-examination and requires adjustments in pacing, exhibit management, and witness control.

Practical considerations for virtual hearings: exhibits must be uploaded to eCase in advance; screen-sharing during testimony requires familiarity with the platform; audio quality matters more than video quality for the WCLJ's assessment of credibility; and objections must be crisp because there's no body language to read. Counsel who treats a virtual hearing like a phone call loses to counsel who treats it like a trial.

The WC/Labor Law Intersection

Construction injury cases almost always involve both a Workers' Compensation claim (against the employer's WC carrier) and a Labor Law claim (against the property owner and GC's CGL carrier). The WC file and the Labor Law file need to talk to each other:

• The WC carrier's § 29 lien depends on the outcome of the third-party Labor Law action
• Discovery in the Labor Law case (plaintiff's deposition, medical records, IME reports) is directly relevant to the WC defense and vice versa
• A § 32 settlement that closes the WC file can simplify the Labor Law settlement by eliminating the lien
• Conversely, a large Labor Law settlement or verdict triggers the lien and may require the WC carrier to be involved in distribution
• The claimant's testified disability at the WCB hearing is sworn testimony — it can be used in the Labor Law deposition and vice versa. Inconsistencies between the two forums are powerful impeachment material.

We handle both sides — the WC defense at the Board and the Labor Law defense in Supreme Court — which means the defense strategy is coordinated from the start rather than operating in parallel silos with different firms sending conflicting signals.