Category Archives: New York

Apply Apportionment to Reduce Exposure in New York

Apportionment is allowed under the Workers’ Compensation Law Section 44 to ensure that compensation is proportionally awarded to the amount of causal contribution made by the employer. This is intended to prevent windfalls to employers and can be applied to both permanent partial disability awards (“PPD”) or loss of use (Scheduled Loss of Use awards). In general, and despite the clear statutory authority, it remains challenging to secure apportionment to non work-related disability except for scheduled loss of use.

For the defense, apportionment should be considered where it can result in a lower wage (and lower benefit rate), where a statute of limitation defense becomes available, and where this is sucessive or prior coverage to which liability can be ascribed.

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TRIAL WIN: Attorney Joseph Melchionne Prevails In App-Based Employment Defense

LOIS attorney Joseph Melchionne was successful in getting a claim disallowed based upon an argument that no employer/employee relationship existed between a deliver dasher and Door Dash based upon the facts of the claim and the current case law on the issue. The claimant was injured when he was struck by an SUV in New York City while making a delivery on a bicycle through the Door Dash application. The claimant injured his right leg and right ankle and required surgery to repair his fractured ankle. The claim was denied by carrier based upon an argument that the claimant was an independent contractor and not an employee of Door Dash.

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Video: Protecting Employer’s Right to Credit in New York

Attorneys Andrea Abudayeh, Greg Lois and Christian Sison present a discussion on the changing workers’ compensation law in New York which will provide a credit to carriers and employers for temporary disability benefits issued against permanency benefits in certain cases. This video is from a live presentation on August 14, 2019.

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New York Law Change: Protecting the Employer’s Right to Credit

In April 2017 the New York Legislature amended WCL § 15(w) to provide that a credit will apply to the statutory cap for permanent partial disability claims if temporary partial benefits are paid beyond 2.5 years (130 weeks). This is good news for employers and carriers in New York who should see several benefits from this law change. This article and the live question-and-answer webinar we have scheduled for August 14th is to help risk professionals, adjusters, and employers protect their right to this credit which will begin in some cases as early as October 9, 2019.

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Trial Win: LOIS Construction Practice Leader Successful in Notice Defense

Tashia RasulLOIS Law Firm attorney and Construction Practice Team Partner Tashia Rasul successfully procured a finding from the Board Panel that the Claimant did not timely file his claim and therefore disallowed the claim. After a victory at the trial level, Tashia fashioned a legal argument for the Board Panel that both discredited the Claimant and barred the claim – a trademark technique of hers that she has executed time and again to deliver results for her clients. At trial, the Claimant testified that while he was allegedly en route to purchase work supplies in his own personal vehicle, he was rear-ended. After the alleged accident, he never filed a form regarding the accident, never lost time from work, and the employer had no reason to know whether there was an accident. The employer-witnesses testified that employees were not authorized to retrieve work supplies themselves. Tashia argued successfully that the Claimant was not a credible witness and that because the Claimant failed to file within 30 days of the accident, the claim is prejudicial to the employer and should be barred. Continue reading Trial Win: LOIS Construction Practice Leader Successful in Notice Defense