Category Archives: New York

NY's Max Rate Change is Fast Approaching – Ready?!

The 2007 Workers’ Compensation Reform Legislation (passed March 17, 2007) raised the maximum compensation benefit indemnity rate paid to claimants for the first time since 1992. The rate had been $400 per week since July 1, 1992. The rate was raised to $500 per week for accidents occurring after July 1, 2007. On July 2008 the rate was raised again to $550 and increased to $600 per week in 2009.
As of July 1, 2010 the maximum rate will be adjusted again and will be pegged to the State Average Weekly Wage. as of July 1, 2010 the rate will be two-thirds of the NY State Average Weekly Wage (“SAWW”). The rate will then follow the SAWW.
New Jersey has long pegged the state ‘maximum’ temporary and total disability rates to the SAWW. This method has resulted in an ever-increasing maximum total disability compensation rate. The 2010 “maximum” rate in New Jersey is $794 per week. Despite the recession, and falling ‘real’ wages, the NJ SAWW keeps rising. How is that?
The answer is that the New Jersey Department of Labor simply “makes up” a SAWW based on a secret formula. The SAWW number derived has absolutely nothing to do with reality – and differs (significantly) from the SAWW computed by the Federal Bureau of Labor Statistics. Other NJ SAWW figures, using Federal unemployment claims as a basis for determining actual weekly wages, would yield an even lower figure for NJ SAWW.
So far, no word from NY as to how the NY SAWW is going to computed. If NJ is any example, we can expect that the resulting SAWW figures will not reflect the actual SAWW. The figure has not been announced yet. We will keep you up-to-date with this important information.

Benefit Disqualification: in Practice

New York Workers’ Compensation Law Section 114-a prohibits the making of false statements to obtain workers’ comepnsation benefits. In practice, this means statements made inside a court room and statements made to doctors in examining rooms. In the real world, two recent cases show exactly how an employer can demonstrate employee fraud.

1. Video.

In a recent case, a New York Appellate Court affirmed a disqualification from benefits where video surveillance of the claimant showed him going to and leaving a medical examiner’s office with a leg brace and a cane AND A WALKER. While that portion video (a cane and a walker!?! How could he even do that with only hands!?!) showed a severely disabled accident victim, later scenes, in which the claimant is able to move his leg freely, and without a brace, a cane or a walker, showed that he actually had no impairment in his daily activities.

The WCB ruled that the claimant had violated WCL Sect. 114-a and was disqualified from comp benefits. The appellate panel, on review, affirmed that disqualification.

Case: Retz v. Surpass Chem. Co., 834 N.Y.S.2d 389 (2007).

2. Statements – outside of court.

Video can be persuasive, but even better than video is the claimant’s own words. In another recent case, an employe neglected to reveal a prior, very significant injury that resulted in neck and back injuries when filling out forms to obtain workers’ comp benefits. The claimant repeated answered “No” on multiple daily activities questionnaires that asked “Did you have any injuries, illnesses, or limitations before this workers’ comp injury?”

The claimant, who had suffered severe cervical and lumbar injuries just prior to his workers’ comp claim, failed to disclose those injuries. The claimant argued that the questions were ambiguous and that he wasn’t sure exactly what he was being asked. The WCB determined that the claimant knew he was providing false information in connection with his workers’ comp claim and disqualified the claimant from further benefits.

Case: Husak v. New York City Transit Authority, 836 N.Y.S. 2d 319 (2007).

Arising out of the course of employment: What counts?

Injuries that ‘arise out of and in the course of’ employment are compensable – unless they are the result of some intervening cause. How about injuries that arise when an employee is undertaking something ‘outside their regular duties but which still benefits the employer – like taking a class (self-education) or writing a newsletter (cough, cough)? Are injuries that occur during such activities compensable?

In Murphy v. Mt. Sinai Hospital, 829 N.Y.S. 2d 728 (App. Div. 2007) a nurse practitioner sustained multiple injuries in a traffic accident while attending a ‘continuing eduction’ conference. Attendance at the conference was a ‘mandatory’ requirement of his position. The claimant had been encouraged to go to the conference by his supervisor. The claimant testified that his supervisor had handed him the brochure advertising the conference.

The employer denied that the injuries were a direct result of the employment – and that attendance at the conference did not ‘directly’ benefit the employer.

The WCB found that “an act outside of an employee’s regular duties which is undertaken in good faith to advance the employer’s interests is generally within the course of employment.” Therefore, any injuries arising from the act (in this case, a motor vehicle accident) were compensable.

In so ruling, the WCB looked at the factual circumstances surrounding the educational conference. The WCB was impressed by the following: (1) The employer paid remuneration for two “conference days”; (2) the employer ‘encouraged’ the employee to attend the conference; and (3) attendance was a ‘mandatory’ requirement for the position.

'Civil Union' partner eligible for Death Benefits?

Death benefits are payable to the ‘spouse and minor children’ and other beneficiaries ‘allowed by law’ on behalf of a worked killed at his employment. What about members of a civil union? In a recent decision, the WCB denied death benefits to the surviving “member” of a civil union ceremony which had taken place in Vermont. A divided appellate Panel agreed, and ruled that the ‘surviving meber’ of the civil union ceremony was not entitled to benefits.

The decision of the WCB strictly construed that workers’ comp law – the ‘surviing spouse’ langauge. According to the facts of the case, John Langdon and his partner, Neal Spicehandler participated ina ‘civl union ceremony’ in Vermont in 2000. According to the Vermont ‘specil statute’ authorizing the ceremony, the participants in the ‘union ceremony’ are not legal “spouses.” Fo that reason, the New York court refused to grant death benefits to Spicehandler.

This is a significant departure from New Jersey law, which specifically includes members of a ‘domestic partnership’ recognized under New Jersey law (since 2007) – and provides the same benefits to parties in a civil union as to married spouses.

Case: Langan v. State Farm Fire & Cas., 2007 N.Y. App. Div. LEXIS 13242 (N.Y. App. Div. Dec. 27, 2007).

Claimant Fraud results in Benefit Disqualification

New York Claimant Sharon Hammes received workers’ compensation benefits for a permanent partial disability. The employer alleged that she had ‘fraudulently misrepresented’ her injuries and ability to work, and a hearing was held where the employer presented the testimony of its investigator. In addition, the employer presented videotape.
The employer was able to establish, through the investigator’s testimony and the videotape evidence, that the claimant worked at a coffee shop serving customers and regularly made candy which was sold at a candy store.
While engaging in these activities, the claimant completed questionnaires stating that she was ‘totally’ unable to work, and stated that “she had not engaged in work activity for any employer.” In fact, the claimant completed 11 separate questionnaires during this period of work, in each claiming that she had no employment.
The WCB ruled that the claimant was a fraud and disqualified her for further benefits. The Board also ordered the claimant to repay the benefits she had already received (pursuant to Workers’ Compensation Law Section 114-a).
On appeal, the Appellate Court found that the claimant had misrepresented her working ability to obtain benefits. The Appellate panel relied on the findings of the WCB that the claimant was not credible, and her statements that when caught working she was “just helping out a friend” were not believable. Further, they discounted her excuse that “she didn’t think part-time work” counted as work, and that she “didn’t think she had to report part-time work” in answering the questions.
Practice Tip: Good follow-up here by the carrier – in reviewing the responses of the claimant and assigning an investigator.
Case: Hammes v. Sunrise Psychiatric Clinic, ___N.Y.S.2d ___ (N.Y. App. Div. 3rd Dep’t, Decided October 29, 2009).

Unwitnessed Deaths: Trial Presumptions

New York workers who die on the job are entitled to a presumption that the death was “work-related” where the death is unwitnessed or unexplained (Workers’ Compensation Law, §21). This section of the statute is meant to encourage employer vigilance regarding employees in dangerous circumstances and encourage proper supervision.

In Frederick v. Lindenhurst, decided October 8, 2009, the Appellate Court reviewed a case where an employee custodian was found dead in the school’s boiler room. An autopsy was performed. According to the autopsy report, the death was attributed to arteriosclerotic heart disease. This disease is frequently referred to as ‘hardening of the arteries’ and comes from a buildup of fatty plaque on the walls of the main arteries. This disease is not ‘peculiar’ to any employment.

Both the autopsy report and the death certificate found that the decedent’s cause of death was arteriosclerotic heart disease. The employer disputed that the death was related, and the WCB agreed. The decedent’s dependent’s appealed.

The Appellate Panel found that “substantial evidence” will rebut the presumption that unwitnessed deaths are related tot he employment. In this case, the cause of death was known: arteriosclerotic heart disease. The Appellate Division stated that absent any medical evidence that would call that conclusion into question or otherwise suggest that the decedent’s work and his death were causally linked, the opinion of the WCB must stand. The Appellate Panel repeated the case law that instructs that the employer doe snot have to rebut or meet every allegation presented by the dependents in order to overcome the assumption: in other words, if the claimant alleges that the ‘heat’ of the boiler-room, plus the claimant’s work effort, ‘combined’ to cause his cardiac condition to erupt, the employer doe snot have to meet each theory separately in order to overcome the presumption of compensability, just offer a medically-sound evidence of contrary causation.