What Did You Know and When Did You Know It? The Meaning and Impact of Knowledge in Occupational Disease Claims

There are statutes of limitation relating to occupational diseases which reference the claimant’s knowledge of their condition and other factors. Generally, I find that people tend to misinterpret the meaning of knowledge in these contexts; as such, I will endeavor to provide you with a general idea of what this means in a workers’ compensation context in New York claims. The first reference I’ll discuss comes from New York Workers’
Continue reading...

Defending Against Darcon: The Policy Language is Controlling

In 2011, the Board Panel issued a decision in Employer: Darcon Construction (2011 NY Wrk comp G0223167), which contained one throwaway line that has been causing confusion at the hearing level ever since. In this case, a specific work site was covered by a wrap up policy. The Board Panel found that no discrete accident occurred at the work site, therefore, the proper carrier was the carrier of the general
Continue reading...

Untimely Notice of Controversy or Pre-Hearing Conference Statement? Why Carriers Should Not Give Up Hope on a Disallowance

Where a carrier has elected to controvert a claim, the Workers’ Compensation Law in New York sets forth a strict timeframe for filing a denial and initial pleadings. Section 25(2)(b) provides that once a claim has been indexed against an employer, the carrier must file a notice of controversy with the Chair within 25 days. Failure to file the notice of controversy within the prescribed 25-day time limit shall bar
Continue reading...

Part Two: The Growing Costs of Opioids in the Workplace – An NHL Tragedy

Welcome to our second installment of a three part series discussing Derek Boogaard, a former National Hockey League (NHL) player that died from an accidental drug overdose after leaving rehab. In the first part our series, we discussed Boogaard’s career in the NHL, his tragic death, and the tension that exists as a result of an employee’s prescription drug use and the employer’s oversight of said use. Here, we will
Continue reading...

North Carolina Court of Appeals Holds Medications Not Approved by FDA can Constitute Medical Compensation

The Court of Appeals of North Carolina recently affirmed an Industrial Commission decision that use of non-FDA approved “compound creams” prescribed by an authorized treating physician was compensable medical treatment to be provided by the employer. In Davis v. Craven County ABC Board, the plaintiff suffered compensable complex regional pain syndrome. He was prescribed a non-FDA approved compound cream and testified that it relieved some of his symptoms. The defendants
Continue reading...

Part One: The Growing Costs of Opioids in the Workplace – An NHL Tragedy

Over the coming weeks we will be delving into the lengthy saga that involves Derek Boogaard, his estate, the National Hockey League (the NHL), and the National Hockey League Players’ Association (the NHLPA). This first installment of our three part series will lay the foundation of Boogaard’s career in the NHL, his tragic death, and the tension that erupted as a result of an employee’s prescription drug use and the
Continue reading...

Practice Tips for Securing the Mandatory and Discretionary Penalties under WCL Section 114(a)

Once a claim has been established, there are numerous defenses a carrier may raise to limit exposure in situations where the claimant has not returned to work. One of these defenses can be found under Section 114(a) of the Workers’ Compensation Law. The applicable case law reads:  “If for the purpose of obtaining compensation . . . a claimant knowingly makes a false statement or representation as to a material
Continue reading...

Proposed Pennsylvania Legislation May Increase Workers’ Compensation Claims for Asbestos-Related Diseases

Republican Pennsylvania State Representative, Eli Evankovich introduced a bill on April 2, 2018 to eliminate the ability of employees to sue their employers for asbestos-related diseases. Prior to the Pennsylvania Supreme Court’s issuance of the Tooey decision in November 2013, Pennsylvania employees were barred from filing suit against their employers due to the exclusivity provision of the Pennsylvania Workers’ Compensation. Tooey v. AK Steel., 81 A.3.d 851 (2013). Those employees
Continue reading...

Noise: How Much is Too Much?

According to the Occupational Safety and Health Administration (OSHA), 22 million workers are exposed to potentially damaging noise at work each year. In 2017, employers paid $1.5 million in penalties for not protecting workers from noise. OSHA estimates approximately $242 million is spent on workers’ compensation claims for hearing loss. But how much noise is too much? When should you provide protection? And how in the world do you defend
Continue reading...

The War on Wages

A common issue in the workers’ compensation world is properly setting the claimant’s average weekly wage (AWW). Of course, claimant’s counsel will always look for a way to establish the highest AWW possible. It is important to know the how to properly set the AWW, even in unique situations, because adding even a few dollars to the AWW can greatly affect the value of a claim. The AWW of an
Continue reading...