Category Archives: Defenses

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 Decision Expands the Boundary of Employment in New Jersey

A frequent issue that arises in New Jersey workers’ compensation cases is whether or not the petitioner is an employee or an independent contractor. In a recent case, decided October 26, 2018, The appeals panel in New Jersey answered this question in a case involving a cab dispatching service. After trial, the Workers’ Compensation Law Judge dismissed the claims of Julio Pendola against Milenio Express finding that Pendola was not Milenio’s employee despite the fact that the alleged employer had never paid the alleged employee. On appeal the Appellate Division reversed. Here’s why.

Facts From the Trial

The trial judge found that Pendola, a cab driver, was not employed by Milenio because:

  • Pendola supplied his own car.
  • Pendola supplied his own equipment, like the two way radio used to dispatch him.
  • Pendola owned the “medallion” on the cab (the license to operate as a taxi);
  • Pendola paid for his own gas, maintenance, and insurance on his car.
  • The Petitioner was not paid by the company and in fact paid the company $150 per week for the dispatched fares.
  • the Claimant testified that he never shared or remitted any portion of fares to the company; he kept 100% of all fares.

Against all of that, Pendola argued that he was an employee for the following reasons:

  • Pendola testified that he had provided driving services exclusively to Milenio since 2003.
  • Before he purchased his car, a Ford Crown Victoria, he consulted with Milenio who required he paint the car silver, affix the taxi company logo to it, along with the Company’s phone number.
  • The company provided Pendola with business cards, receipts, and vouchers.
  • Pendola also claimed he only picked up passengers from location when dispatched by the company.
  • Pendola testified that the company required his to be well dressed, keep his car clean, and promptly pick up fares. The company punished drivers who failed to follow those basic requirements by not sending them dispatches for a few hours or the rest of the day.

The Appeals panel reversed, finding that Pendola was the employee of Milenio. Read more to find out why. Continue reading New Decision Expands the Boundary of Employment in New Jersey

Defending WTC “Rescue, recovery, and clean-up”Claims Under Article 8-A

Although seventeen years have elapsed since the tragic events of September 11, 2001, New York Workers’ Compensation claimants continue to bring claims for latent conditions they allege are related to the World Trade Center attack (generally referred to as “Article 8-A claims”, based on the governing statute). Any claimant suffering from a qualifying latent condition is eligible to bring an Article 8-A claim if they participated in “rescue, recovery and clean-up operations” at the World Trade Center site (and other related sites listed in the statute) between September 11, 2001, and September 12, 2002. While these claims are often emotionally compelling, the claimants often do not have grounds to bring the claims under 8-A. Here’s how to defend these claims. Continue reading Defending WTC “Rescue, recovery, and clean-up”Claims Under Article 8-A

Is Income Earned Through Criminal Activity Fraud under Section 114-A?

Joseph MelchionneNew York injured workers are compensated through their employer’s workers’ compensation insurance policies for all lost time and medical treatment that is causally related to their work-related injury. However, an injured worker can be precluded from receiving continuing and prior benefits if he or she acts fraudulently for the purpose of obtaining such benefits.

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 Is Income Earned Through Criminal Activity Fraud under Section 114-A?