All posts by Tim Kane

Tim Kane is a Senior Associate attorney at Lois LLC where he defends employers and carriers in New York workers’ compensation claims. Tim can be reached directly at tkane@loisllc.com or 201-880-7213.

Defending WTC “Rescue, recovery, and clean-up”Claims Under Article 8-A

Although seventeen years have elapsed since the tragic events of September 11, 2001, New York Workers’ Compensation claimants continue to bring claims for latent conditions they allege are related to the World Trade Center attack (generally referred to as “Article 8-A claims”, based on the governing statute). Any claimant suffering from a qualifying latent condition is eligible to bring an Article 8-A claim if they participated in “rescue, recovery and clean-up operations” at the World Trade Center site (and other related sites listed in the statute) between September 11, 2001, and September 12, 2002. While these claims are often emotionally compelling, the claimants often do not have grounds to bring the claims under 8-A. Here’s how to defend these claims. Continue reading Defending WTC “Rescue, recovery, and clean-up”Claims Under Article 8-A

Are Exercise Riders and Assistant Trainers Eligible for Benefits Pursuant to the NY Jockey Fund?

Who is covered under the New York Jockey Injury Compensation Fund? According to Racing, Pari-Mutuel Wagering and Breeding Law § 221 (6), “[t]he fund shall secure workers’ compensation insurance coverage on a blanket basis for the benefit of all jockeys, apprentice jockeys and exercise persons licensed pursuant to this article or article four of this chapter who are employees under section two of the workers’ compensation law.” Owners and trainers licensed under the Racing, Pari-Mutuel Wagering and Breeding Law are required to pay into the Jockey Fund. Racing, Pari-Mutuel Wagering and Breeding Law § 221 (7).

Tim KaneOne question worth asking is whether coverage pursuant to the Jockey Fund is available to exercise riders who are unlicensed for that line of work. According to the Appellate Division, an unlicensed exercise rider who works at a covered facility and who is eligible for a license is covered by the Fund. See Adames v. N.Y. Jockey Injury Comp. Fund, Inc., 15 A.D.3d 696 (N.Y. App. Div. 3d Dep’t 2005). Accordingly, the question of whether or not the claimant holds a current exercise rider’s license is not dispositive when determining coverage under the Jockey Fund.

Exercise riders, as the name implies, actually ride the horses, in accordance with the direction of a trainer or assistant trainer. Assistant trainers, on the other hand, perform duties such as feeding, medicating, and grooming the horses, as well as organizing the training schedules and other logistics, and providing discipline in the stable,  under the supervision of the lead trainer. Assistant trainers are normally covered under the trainer’s workers’ compensation policy. However, some assistant trainers also work as exercise riders, and can therefore be eligible for coverage pursuant to the Jockey Fund depending on the type of work actually being performed when the injury occurs. See 2008 NY Wrk. Comp. LEXIS 9376 Continue reading Are Exercise Riders and Assistant Trainers Eligible for Benefits Pursuant to the NY Jockey Fund?

When Is A “200 Multiple” Applied When Determining AWW in New York Workers’ Compensation Claims?

Determining the claimant’s average weekly wage (AWW) is an important part of any workers’ compensation claim, as the claimant’s average weekly wage dictates the rate of their disability benefit for any causally related lost time. The method by which a claimant’s average weekly wage  is determined involves application of the provisions of WCL §14.

If the claimant worked for the employer for at least a year prior to being injured, the wages earned during that period will often simply be divided by 52 weeks in order to determine the AWW. Alternatively, if the claimant normally worked five days per week, but didn’t work for a substantial portion of the year, the average daily wage can be multiplied by 260 to determine the claimant’s annual wage, which is then divided by 52 (or, for a six or seven day per week worker, the average daily wage is multiplied by 300, then divided by 52). In cases where the claimant did not work substantially all of the prior year, e.g. workers who are injured shortly after being hired, the payroll of a similar worker may be used in order to determine the AWW.

Continue reading When Is A “200 Multiple” Applied When Determining AWW in New York Workers’ Compensation Claims?

Facial Disfigurement Awards in New York Workers’ Compensation Claims

When a NY workers’ compensation claimant suffers an injury which results in permanent scarring of the face, head, or neck, that claimant may be entitled to compensation in the form of a scheduled award under WCL §15(3)(t). According to the statute, “The  board  may award  proper and equitable compensation for serious facial or head disfigurement…” including scarring which extends down to the area of the neck. The maximum award for such disfigurement is $20,000.

Interestingly, this type of award is made at the discretion of the Board, and judges are not bound to the opinion of medical experts. See Hildreth v. Ford Motor Co., 14 A.D.2d 963, 221 N.Y.S.2d 16, 1961 N.Y. App. Div. LEXIS 7911 (N.Y. App. Div. 3d Dep’t 1961).  How does this work? Normally, a claimant will attend a hearing and the judge will personally view the scarring, as well as consider any arguments from the parties. Continue reading Facial Disfigurement Awards in New York Workers’ Compensation Claims

Addressing Opioid Abuse In New York Workers’ Compensation Claims

These days, it seems like the issue of opioid abuse is quite simply flooding into the national consciousness. A simple Google search will quickly lead to the scary conclusion that opioids are quite literally killing people every day, from rock stars to housewives, people young and old, and from all walks of life. According to the American Society of Addiction Medicine, there were 18,893 overdose deaths caused by use of prescription pain medicine nationwide in 2014. Furthermore, “[f]our in five new heroin users started out misusing prescription painkillers.”

There is also evidence that opioid abuse costs American employers billions of dollars. Not surprisingly, opioid abuse is a growing problem in New York, and legislators are taking notice.  The NY Workers Compensation Board also chose to address the issue, and its Non-Acute Pain Guidelines went into effect on December 15, 2014. Continue reading Addressing Opioid Abuse In New York Workers’ Compensation Claims