Joseph Melchionne is an associate attorney at Lois LLC where he defends employers and carriers in New York workers’ compensation claims. Joseph can be reached directly at email@example.com or 201-880-7213.
The successful defense of Workers’ Compensation claims in the state of New York requires practitioners to utilize a myriad of different skills, strategies and legal tools. One of the most important elements of any successful claim defense will require the production of one or more Independent Medical Evaluations (IME) throughout the pendency of the claim.
The IME is a medical examination arranged and scheduled by the carrier or self-insured as a means to obtain a medical opinion with regard to the claimant’s degree of disability, permanent impairment, ability to work, and/or the medical necessity of a requested medical treatment. Such opinions will be critical to rebut or challenge the findings contained in the medical reports submitted by the claimant’s treating doctors. Although not common, claimant’s can also obtain IMEs and it is becoming more commonplace in New York for claimant’s to obtain an IME opinion for a Schedule Loss of Use opinion at permanency.
Recently, we posted an article detailing the most common defenses that are used in denied New York Workers’ Compensation claims, that article can be found here.
Controverting a claim in the state of New York also requires that the carrier and/or self-insured and the defense counsel submit very specific forms in a statutorily defined time frame in order to raise and maintain those defenses. In most cases, if these aforementioned forms are not submitted in a timely fashion or are defective, the carrier and/or self-insured may waive all of its defenses and may have to accept the claim as compensable.
Initial Considerations in Controverted Claims
The process to controvert or deny a workers’ compensation claim in the state of New York is initiated when the carrier or self-insured files the electronic First Report of Injury – Denial Type 04 (FROI-04) which can be viewed here or a Subsequent Report of Injury – Denial Type 04 (SROI-04) form which can be viewed here. These forms now replace the Form C-7 or Notice that Right to Compensation is Controverted form, which used to be the forms upon which a claim was controverted. To view the obsolete form you can click here.
Most people are very familiar with traumatic or specific injuries. An employee slips and falls at work while she is engaged in her work duties and breaks her ankle – this is an example of a traumatic or specific injury that was suffered in the course of a workers’ employment. In the aforementioned example, after investigation of the facts it is usually easy to ascertain if the employee’s accident “arose out of and in the course of her employment.” Therefore, this type of injury will likely be covered under New York’s Workers’ Compensation Law.
An occupational disease is slightly more difficult to define, but like traumatic injuries, if it is determined by the Workers’ Compensation Board that an occupational disease was developed in the course of a workers’ employment, the person suffering from the disease will be entitled to medical and indemnity benefits associated with the work related disease under New York’s Workers’ Compensation Law. Occupational diseases are injuries and/or conditions that arise out of a workers’ employment, usually through exposure to specific harmful conditions or through repetitive physical actions. Continue reading Defining Occupational Disease in New York→
Social Security Disability Insurance (SSDI) provides protection for injured people who need to return to work without compromising
their rights to other federal and/or state benefits. According to the Social Security Administration, someone is “disabled” if they are not able to work as the result of an illness or injury that will last for at least twelve (12) months.
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.→
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→