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.Continue reading New York Law Change: Protecting the Employer’s Right to Credit
LOIS 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
On July 9, 2019 and in a decision favorable to the employer, the New Jersey Appellate Division vacated an order awarding money benefits to the petitioner and returned the case to the trial court. This remand for new trial, obtained after oral argument presented by Greg Lois, also vacated an order penalizing the employer for late payment of lost time benefits.Continue reading Appeal Win: Greg Lois Prevails in New Jersey Appellate Decision
Attorney Joseph Melchionne was successful in getting a claim disallowed based upon an argument that New York State was not the proper jurisdiction for which to bring the claim. The claimant is a 76-year-old delivery driver for an Italian restaurant located in Mahwah, New Jersey. The claimant alleged that while making a delivery to a customer in New York State he was injured when he went to descend a flight of stairs and fell due to poor lighting injuring his head, neck, left hand, mouth, and teeth. As a result of the accident, the claimant spent nine (9) days in the hospital and underwent a cervical spine surgery and treated for significant injuries to his left hand. The claimant filed the claim in New York. The claim was denied by the carrier based upon an argument that New York was not the proper jurisdiction for the claim.
At trial, the claimant testified that he resided in Mahwah, New Jersey and worked at the Italian restaurant located in New Jersey and as a crossing guard for the Borough of Ramsay, New Jersey. At the restaurant the claimant was a delivery person and he assembled pizza boxes part time. The claimant testified that he was hired at the restaurant in New Jersey, the terms of his employment with the company were negotiated at the restaurant in New Jersey and he was paid weekly by check from the company from a bank in New Jersey. The claimant also testified that he cashed his checks at his bank in New Jersey. The claimant testified that he used his own car to make deliveries which was insured under New Jersey law. The claimant testified that the restaurant is located 100 yards from the New York State line and about 50% of his deliveries were made in New York for towns such as Suffern, Tuxedo, and Nanuet. The claimant testified that on the evening of the subject accident he was making a delivery to Suffern, New York at around 8:00 in the evening when after making the delivery he fell down a flight of steps injuring his head, neck, left hand, mouth, and teeth.
Following the claimant’s testimony, Attorney Joseph Melchionne argued that based upon the testimony produced at the trial and pursuant to the case law on the issue, New York State was not the proper jurisdiction for the claim. As such, we argued that that the claim should be disallowed in its entirety. With respect to the issue of subject matter jurisdiction, we argued in summation that the case law has held that, factors which have been examined to make a determination as to whether or not the New York Workers’ Compensation Board has subject matter jurisdiction include: Where the claimant resides; where the claimant was injured; where and how the claimant was hired; whether the claimant was paid wages from a New York Bank; where the employment contract was negotiated; whether the claimant was paid to travel to and from another state and New York; whether the claimant’s schedule was negotiated in New York and whether the claimant worked at a fixed location outside of the state of New York. Next, we argued that the claimant testified that he lives in New Jersey, his concurrent employment was in New Jersey, the restaurant is located in New Jersey, he worked for the restaurant assembling pizza boxes in New Jersey, made 50% of his deliveries in New Jersey, used his own car which was insured in New Jersey to make his deliveries, was paid in New Jersey, his checks were issued and cashed at New Jersey banks, he was hired in New Jersey, and he negotiated the terms of his employment in New Jersey and as such, the factors weigh in favor of New Jersey being the proper jurisdiction for the claim and, as a result, the claim should be disallowed.
The law judge was persuaded by our arguments and determined that New York State was not proper jurisdiction to bring the claim, and as such, the claim was disallowed in its entirety.
LOIS Law Firm attorney and Construction Practice Team Partner Tashia Rasul successfully severed the ongoing payment of Workers’ Compensation benefits to the Claimant in an effort to protect her client’s interests. Considering the client’s monetary exposure is a classic feature in the overall LOIS strategy that Tashia masterfully and frequently employs.
After raising the fact that the Claimant is committing a material misrepresentation in order to receive Workers’ Compensation benefits under Section 114-a, Tashia argued that the Carrier should stop paying benefits. Tashia further alluded to the findings revealed in the covert surveillance footage that showed the Claimant performing activities similar to his pre-injury employment. Tashia further argued that the Claimant should not be given the benefit of the doubt when he is alleged to have committed fraud. Continue reading Trial Win: LOIS Attorney Tashia Rasul Vigorously Prosecutes Fraud on Behalf of Employers
New York’s maximum compensation rate – for temporary total disability and permanent disability – increases effective July 1st to $934.11. The new, higher rate will be in effect until June 30, 2020 and applies to all cases with dates of loss after today (after July 1, 2019). On Monday, July 15th we will be holding a question-and-answer webinar on this change to discuss how this impacts claims and exposures (register here to attend live via webinar at 12PM or 3PM EST).
How is the New York Maximum benefit Rate Calculated?
The maximum weekly benefit rate for workers’ compensation claimants is two-thirds of the New York State average weekly wage for the previous calendar year, as determined by the New York State Department of Labor (Workers’ Compensation Law §§ 2(16);15(6)).
The Department of Labor reported to the Superintendent of the Department of Financial Services that the New York State average weekly wage for 2018 was $1,401.17. Accordingly, the maximum weekly benefit rate is $934.11 for compensable lost time for workers’ compensation claims with dates of accident during the period from July 1, 2019 through June 30, 2020.
This will have an impact on lost-time wage compensation (temporary disability benefits) as well as permanency benefits (both Loss of Wage Earning Capacity and Schedule Loss of Use Awards).
Wage Compensation: Cash Benefits.
Cash benefits are not paid for the first seven days of the disability, unless it extends beyond fourteen days. In that case, the worker may receive cash benefits from the first work day off the job. Rules: Compensation (money allowance – the wage replacement) is not paid to the injured employee for the first seven days of disability. NY WCL § 12. If the disability continues for 15 days or more, the compensation will be paid going back to the first day of time lost. The fourteen lost days do not have to be consecutive. If the disability is for fourteen days or less, then there is no wage replacement for the first seven calendar days, only the eight through fourteen days lost.Continue reading New York’s Maximum Rate Rises Effective Today