Category Archives: Workers Compensation

TRIAL WIN: Attorney Andrea Abudayeh Prevails on Attachment in New York

LOIS Attorney Andrea Abudayeh prevailed in a case where the claimant was directed to produce evidence of attachment to the labor market because his doctor conceded a partial disability. Instead, the claimant produced evidence that he underwent authorized surgery a week before the hearing. The claimant also argued that he did not have to look for work as he was still employed by the employer of record. He submitted a letter from the employer allegedly confirming the claimant was employed.

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TRIAL WIN: Attorney Declan Gourley Prevails on Claim Disallowance in New York

LOIS attorney Declan Gourley was successful in getting a low back claim disallowed by the trial judge on August 6, 2019 due to conflicting histories and mechanisms of injury. At trial, through effective cross-examination of the claimant and presentation of employer witnesses, Gourley showed that claimant was terminated for cause and did not notify her employer of a work related injury until after the termination. Additionally, LOIS was able to emphasize numerous discrepancies between the claimant’s testimony, her medical reports and her claim form (C-3). While the claimant insisted notice was provided prior to her termination, the law judge determined there was insufficient evidence that a compensable injury occurred and the reporting of the injury was merely an afterthought following the unrelated termination for cause.

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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Mental Stress Injuries: Third Fridays Podcast

Host Christian Sison welcomes attorney Declan Gourley back to the podcast to discuss mental stress claims under the New York Workers’ Compensation law. The attorneys discuss the standard for causally-related and compensable stress in New York, strategies for defending the cases, and provide practical examples.

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