Best Practices in Dual Jurisdiction Cases: New York General Liability and Workers’ Compensation

Best Practices in Dual Jurisdiction cases: New York General Liability and Workers’ Compensation. Subtitle: A Practical Protocol for Coordinating Workers’ Compensation and General Liability Defense Counsel in Catastrophic Construction Cases. By Gregory Lois, Esq.

Topics covered include:

PART I. THE GOALS OF MULTI-JURISDICTIONAL COORDINATION
§ 1.01 Goal One: Reaching Global Settlements.
§ 1.02 Goal Two: Avoiding Collateral Estoppel.
§ 1.03 Goal Three: Weaponizing Coordination – Tactics that Benefit the Employer.
§ 1.04 Goal Four: Reduction of Litigation Costs – Reducing Duplicative Effort.
§ 1.05 The Limitations of this Protocol.

PART II. BEFORE THE LOSS: ASSEMBLING THE TEAM.
§ 2.01 Who Should Be “On the Team.”
§ 2.02 Getting the Team Together.
§ 2.03 Consider an On-Site Meeting.
§ 2.04 Publishing Team Contacts.
§ 2.05 Running a Drill
§ 2.06 Communication Best Practices.
§ 2.07 Worksite points of contact: “to whom does the injury get reported?”
§ 2.08 Safety Personnel.

PART III. AT THE TIME OF LOSS.
§ 3.01 Onsite Investigation.
§ 3.02 Selection of Vendors and Team Members on a “Per Loss” Basis.
§ 3.03 Documentation.
§ 3.04 “Cloaked” or Attorney Driven Investigation.
§ 3.05 Setting Goals and Parameters of Investigation.
§ 3.06 Considering Whether Governmental Investigation Will Take Place.

PART IV. PRIVILEGES, DISCLOSURES, AND COLLATERAL ESTOPPEL.
§ 4.01 Brief Overview of Applicable Privileges.
[1] The Attorney-Client Privilege
[2] Attorney Work Product.
[3] What Qualifies as Work Product?
[4] The Concept of “Common Interest” Privilege in New York.
[6] Consider a “Joint Defense Agreement.”
[7] Accident Report Are Generally Not Subject to Privilege.
[8] Which Parts of the Workers’ Compensation Records are Unlikely to be Protected?
[9] Which Parts of the Accident Investigation May be Privileged?
§ 4.02 Medical.
[1] Access to eCase.
[2] HIPAA.
§ 4.03 Workers’ Compensation records, generally.
§ 4.04 Workers’ Compensation Records Can Be Held as “Confidential” by the Board.
§ 4.05 Workers’ Compensation discovery.
§ 4.06 Civil Discovery.
§ 4.07 Avoiding Collateral Estoppel.
§ 4.07[1] What does “identical” mean?
§ 4.07[2] A checklist of situations where collateral estoppel could (or may not) apply.

PART V. LEGAL DEFENSE BEST PRACTICES – COORDINATING COUNSEL USING MILESTONES.
§ 5.01 Workers’ Compensation Defense Milestones.
[1] 10/18 Day Rule: Issuing benefits under the Payor Compliance Statute (enacted April 2017).
[2] 10th Day: Injury Reporting.
[3] 30 Days: 30 day notice required from Claimant.
[4] 25 days: Acceptance or Denial of Claim.
[5] Pre-Hearing Conference.
[6] Other Workers’ Compensation Milestones.
§5.02 General Liability Defense Milestones.
[1] Filing of Complaint or Notice of Claim; Time for Answer.
[2] 50h Hearing for Public Employers.
[3] Preliminary Conference.
[4] Disclosure milestones.
[5] Mediation.

PART VI. GLOBAL SETTLEMENTS
§ 6.01 Dual Claims, Generally.
[1] When the claimant recovers at law, the carrier/employer has the right to reimbursement, subject to certain limitations.
[2] The Employer/Carrier has the right to recover compensation benefits issued against the actual tortfeasor.
[3] First, some vocabulary.
§6.02 Limitation on Reimbursement: The Kelly Decision.
[1] Example: Applying Kelly math to see how the carrier’s reimbursement is reduced.
[2] “Fresh Money.”
[3] Future Medicals: Bissell v. Town of Amherst, 18 N.Y.3d 697 (3rd Dept. 2012).
§ 6.03 Permission to Settle.
§ 6.04 Time limits for Subrogation.
§ 6.05 Practical Guidance: Getting Reimbursed.
[1] Asserting a Lien for Past Benefits Conferred.
[2] Offsetting Future Compensation Benefits.

PART VII. BEST PRACTICES FOR GLOBAL SETTLEMENTS: PRACTICAL EXAMPLES.
§ 7.01 Example of Settlement Where No Coordination.
§ 7.02 Example: Workers’ Compensation Claim Resolved Via Section 32.
§7.03 Example Where Workers’ Compensation Claim Is Extinguished by Lien Waiver.
§ 7.04 Practical Advice for Global Settlements.
Appendix: New York Workers’ Compensation “Cheat Sheets.”
[1] Deadlines (Chart).
[2] Form Deadlines (Chart).
[3] Schedule Loss of Use Chart.
[4] Normal healing periods
[5] Loss of Wage Earning Capacity Chart.
[6] Maximum Workers’ Compensation Rates by Year.

Download Now:

PDF

To request multiple handbooks for your team, contact Greg Lois.

Attribution

Author: Gregory Lois

Defending Employers