Category Archives: Defenses

Penalties Under New York Workers’ Compensation Law Section 52

In New York, all employers are required to carry Workers’ Compensation insurance. This includes employers with less than five employees. Workers’ Compensation Law imposes heavy penalties against the employer for failure to obtain insurance as well as for defrauding the insurance carrier. [See WCL Section 52]

The Law.

Penalties are assessed against the employer for misclassifying and concealing employees. The law specifically includes employer’s actions of intentionally and materially understating or concealing payroll, concealing duties to avoid proper classification or

Tatyana Redko
Tatyana Redko, Esq.

concealing any other information pertinent to the calculation of premiums. Section 52 covers misrepresentations such as paying workers “off the books,” not reporting wages paid to illegal aliens and misclassifying employees as “independent contractors” in an attempt to pay a lower premium. Continue reading Penalties Under New York Workers’ Compensation Law Section 52

New York State Workers’ Compensation Fraud: Stereotypes versus Reality.

The Stereotype

The common image of workers’ compensation fraud most likely looks like this: An employee claims to be totally disabled and therefore cannot work at all yet he or she actively makes improvements to their homes, enjoys recreational sporting activities, engages in yard work, or perhaps takes glorious vacations, all while accepting healthy indemnity benefits for months at a time.

The above scenario may be true in some circumstances, but in truth, New York workers’ compensation fraud may take many forms and result in a myriad of consequences.  New York Workers’ Compensation Law (WCL) section 114(a) governs fraud and describes significant penalties for those who are caught committing fraud such as a permanent ban on their eligibility to receive indemnity benefits and/or a permanency award. Continue reading New York State Workers’ Compensation Fraud: Stereotypes versus Reality.

Challenging Labor Market Attachment in New York

What is Labor Market Attachment

In New York, a temporarily partially disabled claimant must demonstrate an attachment to the labor market to be entitled to continuing compensation benefits. A recently filed Full Board Decision increased the claimant’s burden of proof for a sufficient finding of attachment to the labor market (Matter of Suffolk County Health Services). Raising the issue of labor market attachment is beneficial in reducing the overall exposure of the claim as it may result in a suspension of benefits due to the claimant’s failure to attach themselves to the labor market.  Also, the exposure of the claim may be reduced if the claimant is successful in finding new employment as a result of the carrier raising the issue of labor market attachment. Continue reading Challenging Labor Market Attachment in New York

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

Here is the post-webinar video from our most recent presentation, “The Going-and-Coming Defense in New Jersey” which discusses legal defenses available under the New Jersey Workers’ Compensation Act and case law. To join us for our monthly webinars on New York and New Jersey workers’ compensation law, Click here to register.

Subject: New Jersey, Workers’ Compensation Law, Defenses
Date Presented: June 27, 2016
Presenter(s): Greg Lois, Esq.
Run time: 25:45
The complete archive of prior presentations is here. Continue reading Post-Webinar Video: The Going-and-Coming Defense in New Jersey

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

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