Appellate Practice, New York, Workers Compensation

Federal Employer’s Liability Act Claims Preempt New York Jurisdiction.

In general, the Federal Employers Liability Act preempts the New York Workers’ Compensation Law unless the parties waive their federal rights and claims. The Board lacks the authority to rule on jurisdictional issues regarding federal claims (such as whether or not the claimant is an employee of the interstate entity. This is because WCL § 113, states that “[t]he provisions of [the New York Workers’ Compensation Law] shall apply to employers and employees engaged in intrastate, and also interstate and foreign commerce for whom a rule of liability or method of compensation may be established by the congress of the United States . . . provided that awards according to the provisions of this chapter may be made by the board . . . in case the claimant, the employer and the insurance carrier waive their admiralty or interstate rights and remedies.”

In a recent case, McCray v. CTS Enterprises, 166 A.D.3d 1356 (3d Dep’t 2018) the court reversed a Board panel decision finding that the Board lacked the jurisdiction to determine issues of employment for employees engaged in interstate railway work because federal law preempted the state workers’ compensation law.

New York, Workers Compensation

Understanding the Exclusivity Provision Defense to Co-Worker Claims in New York

Two employees of the same college are leaving work for the day. While using a crosswalk across a campus road one of the employees is struck by the second employee’s car, sustaining injuries. Can the injured employee sue his colleague for damages or is his civil action barred by New York’s exclusivity provision (Workers’ Compensation Law Section 11)? Continue reading Understanding the Exclusivity Provision Defense to Co-Worker Claims in New York →

Benefits, Defenses, New York, Workers Compensation

LOIS Attorneys Prevail on Appeal Regarding Meaningful Job Search

Partner Declan Gourley recently won an appeal that defines what a good faith effort and a “meaningful work search” is for a highly-qualified claimant. By winning this appeal, all money benefits were terminated! This decision illustrates the value of a carefully-prepared cross examination when challenging the validity of a work search conducted by the claimant.

Relevant Facts

The claimant, a registered nurse, sustained a work-related injury while lifting an oxygen tank on November 5, 2012. An IME was conducted by Dr. Pagano, who opined that the claimant had reached MMI and had no more than a mild disability. Dr. Pagano found that the claimant could return to work with a 50-pound lifting restriction. The carrier raised the issue of labor market attachment and directed the claimant to produce evidence of her search for work. At the next hearing, the WCLJ directed the carrier to suspend payments because the claimant did not attend a hearing held and failed to produce the directed work search evidence. Continue reading LOIS Attorneys Prevail on Appeal Regarding Meaningful Job Search →

New Jersey, Video, Webinars, Workers Compensation

Video: Medicare Secondary Payer Issues in New Jersey Section 20 Settlements

Attorney Greg Lois Attorney Gregory Lois leads a discussion on the challenges facing parties seeking to resolve disputes via New Jersey’s Section 20 lump-sum dismissal process where Medicare has an interest. This video is taken from the January 28, 2019 webinar provided by the Firm.

Continue reading Video: Medicare Secondary Payer Issues in New Jersey Section 20 Settlements →

New Jersey, Workers Compensation

New Jersey’s Maximum Benefit Rate Increase in Effect Now for New Claims

Effective January 1, 2019, the maximum temporary disability compensation benefit rate for New Jersey claims rises to $921.00 per week and the minimum rate is $246 per week. These rates take effect for new injuries occurring on or after January 1, 2019. Benefit rates in cases with dates of loss prior to January 1, 2019 do not get this higher rate – New Jersey does not have a cost of living increase for established claims. Continue reading New Jersey’s Maximum Benefit Rate Increase in Effect Now for New Claims →

Defending Employers