All posts by Lois LLC

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

Coming and Going Rule: A Review of the New York Case Law

Injuries Commuting to Work Generally Not Compensable.

Under the New York 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. Additionally, the risks inherent in traveling to and from work relate to the employment only in the most marginal sense. 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.  Exceptions to this general rule are recognized where there exists some reasonable nexus between the risk to which a claimant was exposed and the employment.

In that regard, only if an injury flows as a natural consequence of the employee’s duties can it be said to arise out of the employment. Similarly, for an injury to occur in the course of employment, “[i]t must have been received while the employee was doing the work for which he was employed.” Lemon v. New York City Transit Authority72 N.Y.2d 324, 326-327 (N.Y. 1988)Malacarne v. Yonkers Parking Authority, 41 N.Y.2d 189, 190 (N.Y. 1976) “A purely fortuitous coincidence of time and place is not enough. There must be a causal relationship or nexus between the accident and the employment.” Id. Continue reading Coming and Going Rule: A Review of the New York Case Law

Calculating Average Weekly Wage in New York Claims

Why is Average Weekly Wage important?

One of the most fundamental aspects of workers’ compensation are the indemnity benefits paid to the injured workers. The purpose is to compensate the injured employee for the time lost from their work due to their on-the-job injury. These benefits are tax exempt, and as such are calculated at a 33% reduction from the employee’s gross salary amount subject to a maximum and minimum which changes every year. The means by which the compensation rate is established is based on the Average Weekly Wage (AWW). This AWW becomes the basis for all monetary calculations the Workers’ Compensation Board will make throughout the duration of the claim.  As such, it is important that the AWW is properly calculated at the outset of the claim.

The Calculation.

Several factors are considered when making the AWW calculation. Has this injured worker been employed for at least 52 weeks prior to the date of injury? If they have, then their gross salary for that 52 week period will serve as the basis for the AWW calculation. If however, they were employed for less than 52 weeks prior to their injury, then the payroll records of another employee will be directed for submission to the Board. In this instance, the similar worker should be in the same field and preferably in the same position, earning similar wages as the injured worker. The similar worker’s salary and days worked will be adapted and applied in calculating  the injured employee’s AWW. Continue reading Calculating Average Weekly Wage in New York Claims

Avoiding Preclusion of the Defense IME Report

The Defense Independent Medical Evaluation (“IME”).

The defense medical examination is critically important in defending New York workers’ compensation claims. The evaluating physicians’ report is relied upon to challenge unnecessary medical care, to present evidence of the claimant’s work ability, and to establish the degree of permanent medical impairment (if any). In New York there are specific requirements which must be followed in relation to Independent Medical Examinations (“IME”). It is critical that the carrier, the IME physician and the IME vendor meet all the requirements of Section 137 or run the risk of having the IME report precluded by the Workers’ Compensation Law Judge.

The Law on Preclusion.

New York Workers’ Compensation Law §137 and 12 NYCRR §300.2 governs IMEs. Section 137 provides eleven specific requirements. Of the eleven requirements, the following are two basic requirements that can and are easily overlooked:

  1. A copy of each report of independent medical examination shall be submitted by the practitioner on the same day and in the same manner to the board, the insurance carrier, the claimant’s attending physician or other attending practitioner, the claimant’s representative and the claimant.
  2. The claimant shall receive notice by mail of the scheduled independent medical examination at least seven business days prior to such examination. Such notice shall advise the claimant if the practitioner intends to record or video tape the examination, and shall advise the claimant of their right to video tape or otherwise record the examination. Claimants shall be advised of their right to be accompanied during the exam by an individual or individuals of their choosing.

Continue reading Avoiding Preclusion of the Defense IME Report

Post-Webinar Video: The Going-and-Coming Defense in New York

Join us for our monthly webinars on New York and New Jersey workers’ compensation law. Click here to register. Here is the post-webinar video from our most recent presentation, “The Going and Coming Defense” from our New York webinar training series. The complete archive of prior presentations is here.

Subject: New York, Workers’ Compensation Law, Defenses
Date Presented: June 20, 2016
Presenter(s): Tashia Rasul, Esq., and Emily Flasz, Esq.
Run time: 18:58 Continue reading Post-Webinar Video: The Going-and-Coming Defense in New York

Limits to Recovery in a New York Loss Transfer Claim.

In a previous post, we discussed the process of Loss Transfer and specifically why it matters to Workers’ Compensation carriers.  In connection with the Workers’ Compensation aspect, a workers’ compensation carrier can recover up to $50,000.00 by way of arbitration in a Loss Transfer claim through the Arbitration Forums.  However, this does not mean that you can simply assert a right to $50,000.00 against another insurance company and think this is enough. Indeed, when arbitrated, liability still has to be proven as well as damages. Continue reading Limits to Recovery in a New York Loss Transfer Claim.

Introduction to Independent Medical Examinations

The purpose of an IME

The purpose of an Independent Medical Examination (“IME”) in a workers’ compensation claim is to determine the cause of injury (causal relationship) and the extent of the disability from the injury. The IME can also be utilized to determine if there is any further causally related disability, maximum medical improvement and permanency. Continue reading Introduction to Independent Medical Examinations