Category Archives: New York

Is Income Earned Through Criminal Activity Fraud under Section 114-A?

Joseph MelchionneNew York injured workers are compensated through their employer’s workers’ compensation insurance policies for all lost time and medical treatment that is causally related to their work-related injury. However, an injured worker can be precluded from receiving continuing and prior benefits if he or she acts fraudulently for the purpose of obtaining such benefits.

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 Is Income Earned Through Criminal Activity Fraud under Section 114-A?

New Case on the “Going and Coming” Rule in New York Good for Employers and Carriers

In Matter of Rodriguez v New York City Tr. Auth., decided May 31, 2018, the Appellate Division found that the injuries sustained by a subway conductor were not compensable even though the employee was on the employer’s property at the time of loss, was wearing the uniform provided by the employer, and was using a “free pass” provided by the employer to travel to the final work location. The Appellate Panel found that the claimant’s injuries were the result of a normal commute and therefore were not compensable, even though she was attacked after refusing to allow a turnstile jumper access to the station she was traveling through.

We will be presenting a live webinar today, June 18th at 12PM EST and 3PM EST discussing the facts of this case and the impact of the decision on the defense of your off-premises cases in New York as well as answering questions LIVE about specific fact scenarios like this one. Please feel free to join me for one of the sessions or to invite a member of your team at {{company_name}} to jump in. Here’s the link to register for either session:

What is the “Going and Coming Rule”?

Employees are not deemed to be in the course of their employment when they are traveling to- and from-work. This rule of thumb is referred to as the “going-and-coming rule” or the “portal-to-portal” rule. Basically, there is no door-to-door coverage: the risk of travel to and from work is not distinctly related to any specific employment, and so is generally considered not arising out of and in the course of any particular employment.

​Exceptions to the Going-and-Coming Rule

Of course, there are exceptions. For example:

  • Outside workers – like traveling salesmen – who do not work at a fixed location and are required to travel between work locations. (See Bennett v. Marine Works, 273 N.Y. 429 [1937]).
  • Special errands – being sent by the employer to do something specific (and work-related). (See Neacosia v. New York Power Auth., 85 N.Y.2d 471 [1995]).
  • Paid travel expenses – where an employee is paid to use their own car for work-related travel, an injury occurring during that travel may be found to be compensable.
  • Some home office situations – the WCB recognizes that it is not unusual for management and professional workers to have home office with links to the employer’s office, making injuries in those locations compensable.
  • Entering or leaving the employer’s premises – in particular, injuries sustained while the employee is entering the worksite have been held compensable where the entrance to the worksite posed a special hazard. (See Bigley v. J & R Music Elec., 702 N.Y.S.2d 474 [3d Dep’t 2000].)

Continue reading New Case on the “Going and Coming” Rule in New York Good for Employers and Carriers

Appellate Division Clarifies Rule on Reimbursements to Family Members Providing Home Health Care

Kristen Kapur, Esq.On July 13, 2017, the Supreme Court of New York, Appellate Division, Third Department, issued a decision clarifying the rule that reimbursements for home health services provided by family members are payable directly to the claimant.

In Matter of Buckner v. Buckner & Kourofsky, LLP, 152 AD3d 921 (2017), the claimant, after having had a claim established for multiple work-related injuries resulting from a stroke, was classified with a permanent total disability. The claimant required home health care services, some of which were provided by his wife.

In a Notice of Decision following claimant’s classification, the Workers’ Compensation Law Judge (WCLJ) directed the carrier to reimburse claimant’s wife directly for home health care services she provided.

The claimant appealed, asserting that the award for reimbursement of home health services provided by his wife was payable directly to him. The Board affirmed the WCLJ’s decision. Continue reading Appellate Division Clarifies Rule on Reimbursements to Family Members Providing Home Health Care

New Board Panel Decision on Pre-Hearing Conference Statements

Lois Law Firm obtained a Board Panel Decision on May 11, 2018 affirming the law judge’s decision to disallow a claim on the substantive merits of the claim, but the Board also (for the first time) specifically ruled that the employer’s Pre-hearing Conference Statement was sufficient on its face to assert and maintain all defenses. In addition, the Board also determined that the PH-16.2, as submitted, was sufficient to permit the production of an employer witness that was not specifically requested in the PH-16.2.

Download the full decision here: Pabon v. Crown Energy (80 downloads)

Defenses to New York Workers’ Compensation Claims

Workers’ Compensation benefits are analogous to no fault benefits because the employee will be entitled to benefits regardless of whether the employee was negligent in causing the injury or death. By the same token, an employer’s negligence is not considered. Comparative negligence, contributory negligence, or the act of God doctrines are not applicable in determining entitlement to workers’ compensation benefits in New York. Pierce v. Young, 252 N.Y. 520 (1929).

There are some exclusions from compensation. Keep these possible defenses handy when analyzing claims. Continue reading Defenses to New York Workers’ Compensation Claims