Category Archives: Defenses

Common Defenses to New York Workers’ Compensation Claims

In New York State, the workers’ compensation system of law functions to provide benefits and protections to both the employers and the employees who work within the state. The benefit to the employee is that if he or she is injured while at work they will be entitled to workers’ compensation benefits whether or not they were negligent in causing their injury. Similarly, an employer’s negligence is also not legally considered and therefore, the injured employee cannot pursue claims against their employer for contributory or comparative negligence in civil court which could potentially result in huge judgments against employers.  However, not all work-related injuries are deemed compensable and therefore employers should be aware of some common defenses to workers’ compensation claims. Continue reading Common Defenses to New York Workers’ Compensation Claims

Raising Attachment in Permanent Partial Disability Claims

Under 12 NYCRR 300.23(c)(1,), in any case where the board has made an award for compensation for … permanent partial disability, “payments shall not be suspended or modified until an application on a prescribed form accompanied by supporting evidence, is made to reconsider the degree of impairment or wage-earning capacity…and the Board has made final determination of such application finding that suspension or modification is justified.”  The prescribed form referred to in the statute is the RB-89. Continue reading Raising Attachment in Permanent Partial Disability Claims

Practical Tips on Attacking Attachment

Are online job searches enough to show attachment to the workforce? Recent New York case law instructs that a claimant may show attachment through online searches only, but also shows how employers can poke holes in weak or fake searches.

Required proofs for claimants to show “attachment.”

In order to demonstrate attachment to the labor market, the partially-disabled claimant in a workers’ compensation case must show:

  1. the many places they have looked for work within their restrictions AND
  2. provide documented evidence of active participation in at least one NYSDOL re-employment service. “Active Participation” is defined in the case law as
    • calling for an appointment at OneStop or VESID;
    • attending an orientation session;
    • meeting with a One-Stop counselor to develop a resume;
    • registering a resume in the One-Stop system;
    • following up to determine whether there were any job matches; and
    • following up on all job referrals and matches.

The Workers’ Compensation Board has issued a form for claimants to use to keep track of “the many places they have looked for work within their restrictions.”

Why raise “attachment.”

The reality is that many partially temporarily disabled claimants do not conduct any sort of meaningful work search. For many claimants, it is not until the employer/carrier raises attachment as a defense to further benefits that a work search is undertaken. Continue reading Practical Tips on Attacking Attachment