Workers' Compensation Defense

May 20, 2019 Disability Benefits / District of Columbia

Revisiting Apportionment for Private Sector Injuries in the District of Columbia

On May 2, 2019, the Compensation Review Board (CRB) issued a decision opening the door for apportionment claims in private sector injuries in the District of Columbia. James M. Lyles, Jr. v. Howard University Hospital, (CRB No. 17-036). This decision was in response to a remand from the D.C. Court of Appeals directing the CRB to revisit their interpretation of D.C. Code § 32-1508 (6).

The crux of the analysis centers around the changes to the Act in 1998 which eliminated the Special Fund …

May 20, 2019 Average Weekly Wages

Use Of 200 Multiple For Part-Time/Intermittent Workers Often Results In Windfall To Claimants

One of the most contentious parts of a claim can be setting the average weekly wage (AWW), as it determines a claimant’s benefit rate for the life of the claim, including entitlement to reduced earnings. Certainly, at times, the method chosen by the Board for setting an AWW can arguably result in an “artificial inflation” of a claimant’s wages. This is particularly true with part-time or sporadic employees, who oftentimes work far less than what one would normally consider to be “part-time” employment.

The method …

May 13, 2019 New Jersey / New York

Shifting Liability: A Lesson for General Contractors

Imagine this, you, a general contractor based in New Jersey, just secured a project from one of the biggest retailers to do some work at its warehouse in New York. Given the magnitude of the project, part of the work is subcontracted to another New Jersey company that guarantees it has workers’ compensation insurance. The project begins and you are unfamiliar with the number of subcontractor employees on-site, their day-to-day work responsibilities, or how work tasks are assigned.

Several weeks later, one of the subcontractor’s …

May 13, 2019 New York / Temporary Total Disability (TTD)

Proposed New York State Bill Proposes Sweeping Changes to NYS Workers’ Compensation System

Assemblyman Harry Bronson and State Senator Jessica Ramos have recently introduced Bill A7045 to the NYS Assembly and Senate that proposes sweeping changes to the NYS Workers’ Compensation System. As discussed below, if the bill were to be passed in its present form, it will have an impact on not only injured worker’s rights to potentially pursue a claim against their employer following a work-related injury, but also on how the workers’ compensation claim is handled throughout its duration.

Perhaps one of the most sweeping …

May 6, 2019 Medical Expenses / New York

Do it Right or Pay the Price (of Medical Bills)

When an injured worker receives a medically necessary treatment, the employer or insurance carrier is responsible for payment of the treatment when the claim has been accepted or established. See NYCRR section 325-1.25. However, when the treatment is not medically necessary or under the Medical Treatment Guidelines, the carrier can object by filing the New York State Workers’ Compensation Board C-8.1 form (a copy should go to the WCB, the employee, their representative and the health provider). Unfortunately, if the objection is late or improperly …

April 22, 2019 Going and Coming Rule / New Jersey

On the Road Again: Compensability on the New Jersey Roadways

In New Jersey, an injury sustained during employee’s travel to and from the workplace is generally not a compensable injury. This is commonly referred to as the “going and coming rule.” This rule developed in a time where employees commonly worked in a single, physical location such as an office or a store. The course and scope of an employee’s work began once she arrived at the office or store and it ended when the employee left for the day.

Today, for many employees, the …

April 22, 2019 Disability Benefits / permanent partial disability / Permanent Total Disability / Schedule Loss of Use

SLU or Not to SLU- That is the Question

Claimants may be entitled to schedule loss of use (SLU) awards for permanent injuries sustained to arms, legs, hands, feet, eyes, fingers, and toes, known as “schedule injuries.” Injuries sustained to the head, neck, and back, known as “nonscheduled injuries,” are typically subject to classification of a permanent partial disability (PPD) or permanent total disability (PTD), based on loss of wage earning capacity. An issue arises when a claimant has injuries to schedule and nonscheduled sites.

In 2018, the New York State Supreme Court Appellate …

April 22, 2019 Disability Benefits / Schedule Loss of Use

Getting the Most From the Labor Market Attachment

In New York State, the minimum requirements for the labor market attachment provide a truly low hurdle for a claimant to jump over. Rather than actually attempt to find gainful employment, a claimant usually needs to simply go through the motions: go to a one-stop career center a few times, apply to a handful of jobs each week online, or otherwise spend less than an hour each week trying to find work. So long as there is at least a colorable attempt to find work, …

April 15, 2019 Disability Benefits / General

Maryland Statutes of Limitation are Not Liberally Construed in Favor of the Claimant

Bonnie Miller v. Jacobs Technology, Inc.[1] , an unreported case handed down from the Court of Special Appeals earlier this year is unequivocal in its holding that the all statutes of limitation in the Workers’ Compensation Act will not be liberally construed in favor of the claimant.

In Bonnie Miller v. Jacobs Technology, Inc., the claimant sustained an accidental injury on September 29, 2011 and filed a claim with the commission in October 2011. The claim was not contested by the employer and an …

April 15, 2019 Disability Benefits / General / New York

One Missing IME, Too Many

I recently attended a hearing that was scheduled pursuant to claimant’s RFA-1, requesting reinstatement of awards. You’re probably wondering, why were awards suspended in the first place? Because claimant had missed three scheduled independent medical examinations (IMEs)! She also did not have current medical evidence of a further causally related disability at the last hearing. The prior notice of decision read wonderfully, “suspension is effective until such time that the claimant produces up to date evidence of disability and indicates a willingness to attend the …