Category Archives: Construction Defense Practice

Video: New York Workers’ Compensation for Construction Risk Professionals

In this video, “New York Workers’ Compensation 101 for Construction Claim Professionals,”  Tashia Rasul, partner at Lois Law Firm, will provide an overview of the Workers’ Compensation law in New York with a focus on issues and topics which impact construction claims. This webinar is geared towards claim professionals who are more experienced with general liability claims but want to gain an understanding of how the workers’ compensation litigation unfolds.

Some of the topics Tashia discusses include:

  • The basic benefits available under the New York Workers’ Compensation Law.
  • Timelines for typical cases.
  • Reporting injuries.
  • How cases can be controverted.

This video is from a live presentation on March 2, 2020.

How to attend these webinars live and ask questions.

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).

Continue reading Video: New York Workers’ Compensation for Construction Risk Professionals

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.

New York Workers’ Compensation 101 for Construction Claim Professionals: Construction Defense Webinar

Join Us for This Live Webinar on Monday, March 2nd at 12PM EST

In this live webinar, “New York Workers’ Compensation 101 for Construction Claim Professionals,” Tashia Rasul, partner at Lois Law Firm, will provide an overview of the Workers’ Compensation law in New York with a focus on issues and topics which impact construction claims. This webinar is geared towards claim professionals who are more experienced with general liability claims but want to gain an understanding of how the workers’ compensation litigation unfolds.

Tashia will discuss the following:

  • The basic benefits available under the New York Workers’ Compensation Law.
  • Timelines for typical cases.
  • Reporting injuries.
  • How cases can be controverted.

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).

Continue reading New York Workers’ Compensation 101 for Construction Claim Professionals: Construction Defense Webinar

Overview of New York Construction Claim Litigation: Construction Defense Webinar

Join Us for This Live Webinar on Monday, February 3rd at 12PM EST

In this live webinar, “Overview of New York Construction Claim Litigation,” Tashia Rasul, partner at Lois Law Firm, will discuss the patchwork of numerous sources of law which form the basis for construction accident claims in New York. Examining these topics from the perspective of the builder or owner of a construction project, Tashia will provide an overview of the relevant New York common laws and statutory Labor Laws that impose duties and obligations on builders and owners, and that govern the civil claims that plaintiffs file.

Tashia will discuss the following:

  • Common and statutory law for owners and contractors.
  • Labor Law Sections 200, 240, & 241.
  • Recent case law affecting how these statutes are interpreted.

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).

Continue reading Overview of New York Construction Claim Litigation: Construction Defense Webinar

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.

The Goals of MultiJurisdictional Coordination: Construction Defense Webinar

Join Us for This Live Webinar on Monday, January 6th at 12PM EST

In this live webinar, “Goals of Multijurisdictional Coordination,” Tashia Rasul, partner at Lois Law Firm, provides an overview of the goals of the Construction Defense Practice when handling a catastrophic construction accident claim.

Tashia will discuss the four common goals she pursues:

  • Weaponizing Coordination: Tactics that Benefit the Employer.
  • Reduction of Litigation Costs – Reducing Duplicative Effort.
  • Avoiding Collateral Estoppel.
  • Pursuing Global Settlement.

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).

Continue reading The Goals of MultiJurisdictional Coordination: Construction Defense Webinar