All posts by Tashia Rasul

Tashia Rasul is an Partner at Lois LLC where she defends employers and carriers in New York workers’ compensation claims and leads the Construction Defense Practice team. Tashia chairs the Firm's Diversity Committee and is active in the national Alliance of Women in Workers' Compensation. She can be reached directly at trasul@loisllc.com or 201-880-7213.

NY WCL Section 21-a: A Powerful Tool For Employers in the Construction Industry

There was a time when employers who were unsure whether a claim is compensable would not want to pay any benefits to the claimant for fear that it would be considered an acceptance of the claim, or constitute an “advance payment of compensation.” Oftentimes, they would ultimately be stuck with the claim because they had insufficient information to properly deny it and prevail at trial. However, the 1996 workers’ compensation reform legislation implemented a change to assist employers with this problem: New York Workers’ Compensation Law (NY WCL) § 21-a. This statute has addressed and resolved this concern for many employers, especially those in the construction industry.

§ 21-a permits a carrier to take up to a year to determine whether it will accept or deny a claim, as long as certain conditions are met, and the proper forms are filed.

What Does § 21-a Say?

“…[I]n any instance in which the employer is unsure of the extent of its liability for a claim for compensation by an injured employee…,such employer may initiate compensation payments and payments for prescribed medicine and continue such payments for one year, without prejudice and without admitting liability, in accordance with a notice of temporary payment of compensation, on a form prescribed by the Board.”

See NY WCL 21-a.

What are the conditions that must be met?

The employer must make timely payments during the period in which it is still deciding whether to accept or deny a claim. In addition, the claimant and the Board must be notified that such payments are being made without liability. The Employer can stop temporary benefits by:

  • Giving a five-day notice of termination of the temporary payments to the employee and the Board. The notice must be sent within one year or the employee’s claim will then become undisputed and the carrier will be officially liable for the claim.
  • If the employer decides to contest the claim for compensation within the year.
  • The Board makes a decision or award on the claim within the year (and it is not disputed by the carrier)
  • At the end of the one year period, which will result in either a conversion of the dispute to the claim being compensable, or if the five-day notice was provided, awaiting a decision of the Board on the compensability of the claim.

Which Forms Need to be Filed?

  • Accept the case: An L filing after the first SROI with a W. The carrier should make this filing using a SROI-02.
  • Controvert the case: A carrier that wishes to controvert the case after a W filing, must file a SROI-SJ before filing the SROI-04.
  • Accept the case by allowing a year to pass: When the insurance carrier’s initial SROI has a W designation, and 365 days have passed from the first benefit payment issue date, and the carrier has not properly controverted the case, the case is deemed accepted. The carrier must file a SROI-02 with the L designation.

How can § 21-a Benefit Construction Employers?

Construction claims are complex and they occur on very organic, ever-changing jobsites, which can create some difficulty with investigation. With the Board’s requirements for filing of a denial within 21 days of the Notice of Indexing (EC-84), and an expedited trial within 30 days of the pre-hearing conference, in many instances, there is simply not enough time to complete an investigation and line up witnesses for a trial. In addition, many construction workers have histories of prior injuries that need to be investigated, or they have occupational injuries that may have manifested during a prior employment, which also need to be investigated. As a result of these circumstances that can be unique to construction claims, employers can use the provisions of NY WCL Section 21-a to complete their investigation before deciding whether to accept or deny the claims.

The downside to making payments without liability under NY WCL Section 21-a is that the employer would not be able to recoup the payments made if the claim is ultimately determined to be non-compensable. However, in construction claims, where the potential exposure could be exorbitant, especially with many of the claims having companion general liability claims, the cost of making payments while completing an investigation could be worth avoiding much more were the claim to be found to be compensable because of an incomplete investigation.

However, employers should also keep in mind that while this statute can be of its benefit, they must ensure that tabs are kept on the timelines and the proper notice and forms that must be filed.

Questions about this topic?

Contact Tashia Rasul, Construction Practice Team Leader at LOIS, for questions about this article.


Why LOIS Has a Dedicated Construction Defense Practice

Lois has a dedicated Construction Defense Practice because New York construction injuries often lead to two claims: one pending in workers’ compensation court and a civil case based on New York’s Labor Law. These cases are multi-jurisdictional as the two courts reviewing the same set of facts have very different jurisdictional limitations and powers. The injured worker is typically represented by seasoned counsel (from one of just a few firms who have turned construction claims into a specialty) and is aided by a statutory scheme in New York which creates a cottage industry of strict liability claims for employers. The embattled construction employer is therefore required to defend two claims at once filed by the same employee.

Join Us for Live Training

To register for our Construction Litigation Webinar Series, a monthly discussion of recent case law developments and best practices for handling construction accident claims in New York, click the button below (or register here).

Upcoming Webinars from the Construction Defense Practice

About Tashia Rasul, Esq., Construction Defense Practice Team Leader

At LOIS, Tashia leads the New York Construction Practice, which exclusively handles workers’ compensation claims arising out of construction accidents. Tashia represents employers, self-insured companies, insurance carriers and third party administrators before the workers’ compensation courts in New York. Her expertise lies in complex coverage issues, wrap-ups, and claims arising out of catastrophic injuries. As part of her practice, Tashia frequently visits accident sites and provides on-site training to employers regarding workers’ compensation claims, as well as to develop defense strategies. Tashia is the author of the “Defending Construction Claims” Handbook (more on the handbook below).

Tashia regularly counsels clients on the importance of coordinating defense of workers’ compensation and general liability claims, and has a track record of favorable outcomes as a result of such coordination. In concert with Lois Law Firm’s recommended protocol for coordinating workers’ compensation and general liability defense, Tashia led a discussion of the protocol at the 2019 Annual Claims and Litigation Management (CLM) Conference to educate her peers on the importance of joint defense.

Get The Construction Defense Handbook

2020 Construction Defense Handbook
Cover of 2020 Construction Defense Handbook, by Tashia Rasul, Esq.

Authored by Tashia Rasul, Esq., this book is intended for employers, risk managers, insurance brokers and adjusters who are involved in the defense of construction accident claims in New York, and who are looking for a plain-English guide to defending construction accident claims.

Join us for these upcoming training events.

Learn More About Construction Defense at LOIS

For more about the Construction Defense Practice at LOIS, or to request a hard (printed) copy of the “Defending Construction Claims Handbook, 2020 Edition” click here.

Collateral Estoppel in Construction Claims

Using Findings in the Workers’ Compensation Claim to Create Jeopardy in the Civil Claim.

In New York, a construction site injury generally leads to two claims being filed: a workers’ compensation claim, and a general liability (civil) lawsuit pursuant to New York’s Labor Laws. The workers’ compensation claim moves at a much faster pace than the civil lawsuit, with compensability potentially being determined in as little as sixty days.  

Findings reached by a workers’ compensation Law Judge may have a binding effect in the civil litigation where the issue decided in the workers’ compensation proceeding is identical to that presented in the civil lawsuit. This is called “collateral estoppel.”    

Impact of Collateral Estoppel

In New York, the Civil Practice Law and Rules (“CPLR”) specifically recognizes collateral estoppel as a basis for dismissal. See CPLR 3211(a)(5). Collateral estoppel is also an affirmative defense under the CPLR. See CPLR 3018(b). 

Collateral estoppel can apply to quasi-judicial determinations of administrative agencies, including the Workers’ Compensation Board, if the material issues are identical, they were necessarily tried before the administrative agency, and there was a full and fair opportunity to contest the issues before the administrative agency. Jeffreys v. Griffin, 1 N.Y.3d 34 (2003).  There must be “identity of issue” between the prior administrative proceeding and the subsequent litigation. This accords with the general rule that the determinations of administrative agencies are entitled to collateral estoppel effect.  ABN AMRO Bank, N.V. v MBIA Inc., 928 N.Y.S. 2d 647 (2011).   

Issues such as the disallowance of a workers’ compensation claim, the disallowance of some body parts, or a decision regarding ongoing disability can be used to estop a finding in the civil lawsuit.  

Case Law Examples of Collateral Estoppel

For example, in Irrizarry v. Minnesota Mining & Manufacturing Corp., 91 A.D.2d 558 (1st Dept. 1982), the Court found that an award of compensation by the Workers’ Compensation Board constitutes a legal finding that the employee’s injuries arose out of and in the course of his employment and this finding is binding and conclusive.  Similarly, if the employee is denied benefits because the accident did not arise out of and in the course of employment, this finding is also binding.  

Similarly, in Auqui v. Seven Thirty One Ltd. P’ship, 980 N.Y.S.2d 345 (2013), the Court found that when a Workers’ Compensation Board decision sets forth the date a worker’s disability ended, a trial court in a third-party lawsuit should not allow for any award for lost earnings and medical expenses after that disability end date.  

Applying this to Catastrophic Construction Accident Claims

When an employee is claiming in his civil lawsuit that he was injured while in the course of employment, but the workers’ compensation claim was disallowed as not being work-related, the defendant in the civil suit can use this finding to seek a disallowance of the civil lawsuit.  After all, if the employee is claiming that he was working and the defendants provided an unsafe place to work, but it was ultimately found that he did not sustain a work-accident, there is no question that there is an identity of issue here.  Further, the employee cannot reasonably contest that he was not provided a fair opportunity to litigate the issue, as he was given such opportunity when litigating the claim for workers’ compensation benefits.   

Questions about this topic?

Contact Tashia Rasul, Construction Practice Team Leader at LOIS, for questions about this article.


Why LOIS Has a Dedicated Construction Defense Practice

Lois has a dedicated Construction Defense Practice because New York construction injuries often lead to two claims: one pending in workers’ compensation court and a civil case based on New York’s Labor Law. These cases are multi-jurisdictional as the two courts reviewing the same set of facts have very different jurisdictional limitations and powers. The injured worker is typically represented by seasoned counsel (from one of just a few firms who have turned construction claims into a specialty) and is aided by a statutory scheme in New York which creates a cottage industry of strict liability claims for employers. The embattled construction employer is therefore required to defend two claims at once filed by the same employee.

Join Us for Live Training

To register for our Construction Litigation Webinar Series, a monthly discussion of recent case law developments and best practices for handling construction accident claims in New York, click the button below (or register here).

Upcoming Webinars from the Construction Defense Practice

About Tashia Rasul, Esq., Construction Defense Practice Team Leader

At LOIS, Tashia leads the New York Construction Practice, which exclusively handles workers’ compensation claims arising out of construction accidents. Tashia represents employers, self-ensured companies, insurance carriers and third party administrators before the workers’ compensation courts in New York. Her expertise lies in complex coverage issues, wrap-ups, and claims arising out of catastrophic injuries. As part of her practice, Tashia frequently visits accident sites and provides on-site training to employers regarding workers’ compensation claims, as well as to develop defense strategies. Tashia is the author of the “Defending Construction Claims” Handbook (more on the handbook below).

Tashia regularly counsels clients on the importance of coordinating defense of workers’ compensation and general liability claims, and has a track record of favorable outcomes as a result of such coordination. In concert with Lois Law Firm’s recommended protocol for coordinating workers’ compensation and general liability defense, Tashia led a discussion of the protocol at the 2019 Annual Claims and Litigation Management (CLM) Conference to educate her peers on the importance of joint defense.

Get The Construction Defense Handbook

2020 Construction Defense Handbook
Cover of 2020 Construction Defense Handbook, by Tashia Rasul, Esq.

Authored by Tashia Rasul, Esq., this book is intended for employers, risk managers, insurance brokers and adjusters who are involved in the defense of construction accident claims in New York, and who are looking for a plain-English guide to defending construction accident claims.

Join us for these upcoming training events.

Learn More About Construction Defense at LOIS

For more about the Construction Defense Practice at LOIS, or to request a hard (printed) copy of the “Defending Construction Claims Handbook, 2020 Edition” click here.

Friday F.A.Q.: Calculating Average Weekly Wage

Tashia Rasul, Esq.
Tashia Rasul, Esq.
Calculation of a claimant’s Average Weekly Wage (AWW) is dependent on the number of days and months worked, as well as the type of employee that he was at the time of the injury (e.g., a part-time or seasonal worker). NY WCL Section 14 provides a breakdown of how a claimant’s AWW is to be calculated. The generally-accepted method of calculating the AWW is to divide the total annual wages by the number of weeks worked. This is called the “straight division method”, and it is usually not a problem when the claimant worked for 52 weeks (give or take a few weeks) in the year prior to the accident. However, there are several circumstances under which a different method of calculation is warranted: Continue reading Friday F.A.Q.: Calculating Average Weekly Wage

Friday F.A.Q.: Can A Self-Employed Claimant Get A Reduced Earnings Benefit?

In New York workers’ compensation cases partially-disabled claimants are obligated to search for work before permanency is reached. If the claimant finds work but earns less than he was at the time of the accident, the employer may be liable for reduced earnings benefits, which is two-thirds of the difference between the pre-injury and post-injury wages. What happens when the claimant chooses to become self-employed and claims that his income is not “earnings” for the purposes of being eligible for workers’ compensation benefits. So, how does the Board address self-employment? Continue reading Friday F.A.Q.: Can A Self-Employed Claimant Get A Reduced Earnings Benefit?

Friday F.A.Q.: Does Protracted Healing Period (“PHP”) Apply to Every Schedule Loss of Use (SLU) Award?

No! PHP Protracted Healing Period (“PHP”) does not apply in every case. PHP applies only to Schedule Loss of Use (SLU) cases where the claimant had a total disability for a period of time exceeding the “normal healing period” for his particular injury. PHP is determined as a number of weeks, and the claimant is compensated at the temporary total disability (TTD) rate for each week, in addition to the number of weeks he is entitled to pursuant to his SLU.

In order to determine how much PHP is applicable, we first need to determine the normal healing period for the body part in question.

NY WCL Section 15(4-a) lays out the healing period for the schedulable body parts:
Arm – thirty-two weeks
Leg – forty weeks
Hand – thirty-two weeks
Foot – thirty-two weeks
Ear – twenty-five weeks
Eye – twenty weeks
Thumb – twenty-four weeks
First finger – eighteen weeks
Great toe – twelve weeks
Second finger – twelve weeks
Third finger – eight weeks
Fourth finger – eight weeks
Toe other than great toe – eight weeks

Next, we need to determine how many weeks the claimant was totally disabled for. This is usually easily determined by the number of weeks the claimant was awarded TTD benefits for. Sometimes, if no payments were made, and there is no contradictory medical evidence (an IME), the claimant will rely on his doctor’s reports finding him at a total disability in order to calculate the total disability time period.

Let’s go through an example step-by-step to see how PHP applies.

Injured body part: arm.
TTD rate: $500
Normal healing period for the arm: 32 weeks
Number of weeks at a temporary total disability: 50 weeks
SLU of arm: 25%, which equates to 78 weeks
SLU value of arm: 78 weeks x $500 = $39,000
PHP: 50 weeks (total disability period) – 32 weeks (normal healing period) = 18 weeks
PHP value: 18 weeks x $500 = $9,000

In this example, the claimant would be entitled to 18 weeks of PHP compensation ($9,000) in addition to the SLU value of his claim ($39,000). Of course, with SLU awards, the employer gets to take credit for prior payments made to the claimant.

Practice Point: In cases that involve schedulable body parts, the employer must be cognizant of the length of time that a claimant is receiving TTD benefits. This is easily overlooked when there is a direction to continue payments at the TTD rate, and there are no future hearings scheduled to address degree of disability. It is therefore advisable that employers be proactive about obtaining an IME that comments on degree of disability and litigate the issue in order to obtain a finding of a partial disability. Curbing temporary total disability is the key to keeping PHP at bay.

Friday F.A.Q.: Does Increased Wage Expectancy Apply in Every Case?

No, “Increased Wage Expectancy” does not apply to every New York case. “Increased Wage Expectancy” is a concept in New York Workers’ Compensation cases that allows for enhanced awards reflect future wage loss suffered by workers under the age of 25, who, under normal conditions would be expected to have increases in wages. It is aimed at workers who suffer from a permanent injury that would prevent them from obtaining wage increases in the future.

Per WCL §14(5), “if it be established that the injured employee was under the age of twenty-five when injured, and that under normal conditions his wages would be expected to increase, that fact may be considered in arriving at his average weekly wages”. Generally, except in certain “atypical situations,” a finding of future wage expectancy should be limited to the same or similar employment that the claimant was in at the time of the injury. Matter of Lamiano v. Sousa & Sons, 158 AD2d 818 (1990). Continue reading Friday F.A.Q.: Does Increased Wage Expectancy Apply in Every Case?