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Defending Employers in New York, New Jersey, and Longshore.

The “Coming and Going” Rule in New York

The “Coming-and-Going” rule under New YorkWorkers’ Compensation Law 

Under the Workers’ Compensation Law there is a presumption that if an accident occurs in the course of employment it is presumed to arise out the employment. The “coming and going” rule under the Workers’ Compensation Law states that employees are not deemed to be in the course of their employment when they are traveling to-and from-work. Matter of Neacosia v. New York Power Authority, 85 NY2d 471 (N.Y. App. Div. 3d Dep’t 1995); Matter of Davis v. Labor Ready, 69 A.D.3d 1214, 1215 (N.Y. App. Div. 3d Dep’t 2010). Thus, an injury that occurs during such commuting activities is typically not compensable.

The test for determining whether specific activities are within the scope of employment or purely personal is whether the activities are both reasonable and sufficiently work related under the circumstances. Matter of Neacosia v. New York Power Authority, 85 NY2d 471 (N.Y. App. Div. 3d Dep’t 1995). Continue reading The “Coming and Going” Rule in New York

Challenging Pharmaceutical Bills in New York

Workers’ Compensation insurance provides medical treatment which is causally related to the work injury or illness.  It is important to monitor the medical treatment to confirm the treatment provided is medically necessary and directly related to the original injury or illness.  Medicals should be monitored during the entire duration of the pending claim and even after the claim settles by way of an “indemnity only” Section 32 Agreement.  When appropriate, the carrier must object to the treatment in a timely manner.  This article will focus on how to properly object to medical treatment provided, specifically, a pharmaceutical prescription. Continue reading Challenging Pharmaceutical Bills in New York

Appealing to the Full Board

When an appeal to the Board Panel does not prevail there are additional avenues of recourse available.  An appeal may be filed to the Appellate Division, Third Department, of the Supreme Court of the State of New York.  The Notice of Appeal must be filed within 30 days of the filing of the Board Panel Decision.  In the event the Board Panel Decision was not unanimous, any interested party may make application in writing for a full Board Review. WCL §23.

In a Full Board review, all 13 Commissioners of the Board render a joint opinion. The Full Board may review the Board Panel decision on its own motion or “in the interests of justice” as per 12 NYCRR 300.13(f). The Full Board also has the ability to relax the 30-day filing requirements.  Another option that a losing party may have is to appeal to the Full Board and to the Appellate Division at the same time. This is a cost/time efficient tactic that may be used if there was a dissenting opinion in the Board Panel Decision.  However, there is a vast difference between the costs for filing an appeal to the Full Board and the costs associated with filing an appeal to the Appellate Division.  An appeal to the Appellate level is much more expensive than an appeal to the Full Board. Continue reading Appealing to the Full Board

Consent with regard to Section 29 lien rights

Under NY WCL Section 29, a Workers’ Compensation carrier has the right to recover its lien against a negligent party who caused injury to the claimant.  Since the idea of Workers’ Compensation is to streamline benefits to the claimant immediately after the injury, the Workers’ Compensation carrier must pay benefits accordingly and expeditiously.  The idea is to have the Workers’ Compensation carrier rest easy knowing that if a negligent third party is involved in an injury, the right to subrogate and the right to recovery is protected by statute. Continue reading Consent with regard to Section 29 lien rights