Category Archives: Construction Defense Practice

Video: Coverage Disputes in Construction Litigation

In this video, “Coverage Disputes in Construction Litigation,” Tashia Rasul, partner at Lois Law Firm and Construction Defense Team Leader discusses common coverage issues that arise in Owner Controlled Insurance Program (OCIP) and Contractor Controlled Insurance Program (CCIP) projects.

Tashia Rasul leads webinar

Some of the topics Tashia discusses include:

  • What is covered in a wrap-up policy.
  • How to prepare to handle coverage disputes.
  • How coverage issues are handled in court – practical advice..

This video is from a live presentation on October 5, 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).

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Coverage Disputes: Construction Defense Webinar

Join Us for This Live Webinar on Monday, October 5, 2020 at 12PM EST

In this live webinar, “Coverage Issues in Multijurisdictional Construction Claims,” Tashia Rasul, partner at Lois Law Firm, discusses the challenges in defending catastrophic construction losses when coverage is an issue.

Tashia will discuss the following:

  • Workers’ Compensation coverage issues.
  • Differences between operational policy coverage and wrap up coverage.
  • How and in which venue coverage issues are resolved.

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).

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RESULTS: Attorney Tashia Rasul Wins Fraud Finding

Lois Law Firm Construction Practice Team Leader, Tashia Rasul, successfully won a judgment of Section 114-a fraud at the Board Panel level after the workers’ compensation Law Judge found no fraud and noted that the carrier’s application for a fraud finding was borderline frivolous. This fraud finding was not based on the usage of covert surveillance, but instead on documentary evidence provided by the claimant himself, his testimony, and his statements to his doctors and the IME doctors, that were fully contradicted by records of treatment from prior to the date of loss. 

One of the body parts established in this claim is the neck.  The claimant failed to include any prior neck treatment on his C-3 and C-3.3, and when he initially testified regarding prior injuries, he stated that he did not receive prior neck treatment, even though he did have a prior injury to it “a while ago”.  The claimant proceeded to treat for his neck post-loss, neglecting to tell all of his doctors about the prior injury, and refusing to fill out the IME questionnaires or telling the IME doctors it.  Of course, this led to the doctors finding the treatment he needed is causally-related to the subject accident.  In addition, the claimant did reveal to some of his doctors and the IME doctors that he sustained prior injuries to other body parts, but never mentioned the neck.   

To prove fraud, Tashia developed the record by utilizing the client’s investigation showing prior treatment and subpoenaing the claimant’s prior records, taking the claimant’s testimony on prior injuries,  examining the claimant’s post-loss treatment records and IMEs, and taking the doctors’ deposition on what exactly the claimant disclosed to them and whether knowledge of the prior injury would have changed their treatment course.  The pursuit of fraud required digging into the claimant’s past medical history, which is oftentimes overlooked, as well as a scrupulous understanding and synthesis of the record, which Tashia used as a basis for her fraud arguments.

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RESULTS: Attorney Jonathan Mallozzi Proves Claimant’s Fraud

Construction Defense Team Associate Jonathan Mallozzi successfully obtained a fraud ruling (“114-a finding”) favorable to the employer due to the claimant’s concealment of prior medical treatment. The Court ruled that the claimant had committed fraud and imposed a penalty of no further indemnity benefits as a result.

This claim was established for the right shoulder, right calf, right elbow, neck, left shoulder, right wrist, and lower back. In his C-3 dated February 25, 2019, the claimant alleged that when he was taking equipment downstairs, he tripped over a garbage bag that was left on the stairs and fell down the stairs. The claimant testified that he was only ever involved in one motor vehicle accident involving a parked car. However, through thorough investigation, records were discovered for an accident where the claimant was struck by a reversing vehicle while crossing the street.  It was also discovered that the claimant underwent comprehensive treatment in connection with this prior claim. However, he failed to disclose it when he testified in this claim. 

After extensive development of the record utilizing these prior records, cross-examination of the claimant, and arguments made by Jonathan that the claimant made a material misrepresentation by failing to disclose this prior accident and treatment, the Law Judge found fraud under WCL Section 114-A.  The Law Judge reasoned that the claimant did not reveal prior treatment when asked about it under oath or to any treating or IME physician, and this is material as the treatment involved body parts that were allegedly injured in the instant claim.

This finding of fraud was a tremendous cost-savings win for the client, as it curbed indemnity exposure in a claim that could have potentially ended with a high LWEC finding.  

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RESULTS: Attorney Jonathan Mallozzi Wins “Special Hazard” Case

Construction Defense Team Associate Jonathan Mallozzi successfully argued to the Board Panel that the claimant was outside the scope of her employment and not subject to any special hazard when her accident occurred, and obtained a disallowance of the claim.

This claim involved an alleged work-related accident that took place on October 2, 2019. The claimant alleged that she was struck by a New York Sanitation van approximately 20 feet from her work location. The vehicle was backing down the block and allegedly struck the claimant on her right side, causing an injury to her right upper arm. The claimant conceded on her C-3 that the accident occurred on her lunch break. At trial, and after a through cross-examination of the claimant and the testimony of an employer witness, the Law Judge agreed that the claimant was on a public street during her lunch break and not subject to any special hazard that was not shared by the general public. As the claimant was on a public street and on her lunch break, the employer was found not liable and the claim was disallowed in its entirety.

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RESULTS: Attorney Noah Pollack Prevails In Assault at Work Trial in New York

Noah Pollack, member of the Construction Defense Team at LOIS, recently won a case where the claimant alleged being assaulted by another employee at work at night. The claimant had just met the co-worker on the day of the alleged assault. The claimant had filed a police report, and the co-worker had actually been charged with assault. There were hospital records from the claimant from the morning after the assault.

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