One of the most basic and well-settled tenets of New York law is that the Workers’ Compensation Board maintains exclusive subject matter jurisdiction over all work-related claims and collection disputes. However, in 2015, a small law firm based out of Westbury, New York sought to disrupt the system by commencing several hundred lawsuits in Civil Court, Bronx County on behalf of out-of-state pharmaceutical and durable medical equipment providers arising out of payment disputes involving numerous insurance carriers. The firm touted its effort on its website …
Continue ReadingAuthor: Goldberg Segalla
North Carolina Governor Signs Bill Aimed at Protecting Employees from Misclassification
On August 11, 2017, North Carolina Governor Roy Cooper signed into law Senate Bill 407, which creates Article 82, Chapter 183 of the state’s general statutes — more commonly known as the Employee Fair Classification Act (the Act). Quite simply, the Act creates an Employee Classification Division (ECD) within the North Carolina Industrial Commission, led by Director Bradley L. Hicks.
The legislation creating the ECD was introduced in 2015 but failed to become law. In response, former Governor Pat McCrory signed an executive order temporarily …
Continue ReadingMaryland on High Alert after Declaring State of Emergency
With communities nationwide struggling to address the booming opioid epidemic, Maryland is the first to declare a state of emergency in an attempt to rein in overdoses within its borders. In 2016, the Maryland residents suffered more than 2,700 fatal opioid overdoses; this figure is climbing at an alarming rate. The state of emergency declaration allowed Governor Larry Hogan discretion to allocate $50 million in funding to fight the epidemic without waiting for legislative approval. This funding is in addition to Maryland’s previous and ongoing …
Continue ReadingCan I Apportion to that Prior Injury/Condition?
Apportionment is an excellent mitigation strategy for carriers/employers. There are a couple of different scenarios to review when addressing apportionment; however, the threshold issue is permanency. Generally speaking, New York State Workers’ Compensation Law does not permit apportionment prior to permanency.
The most common form of apportionment involves a prior compensable event. Under this scenario, there is no requirement that the carrier/employer prove an “active and symptomatic condition” at the time of the new/later injury. Addressing apportionment to a prior compensable condition involves: (1) knowledge …
Continue ReadingYou Can’t Have Your Cake and Eat it Too — Maryland Court Interprets Controversial Phrase “Similar Benefits” and its Effect on Disability Pension Offsets
In Zakwieia v. Baltimore County, Board of Education, 231 Md. App. 644 (2017), the Court of Special Appeals of Maryland established the correct interpretation of LE § 9-610 and the controversial phrase “similar benefits.” As a result, the court’s holding provided a basis for the Board of Education of Baltimore County (the Board) to apply ordinary disability retirement benefits owed to the claimant as a credit against the claimant’s workers’ compensation benefits.
Following a December 13, 2007 accidental injury, the claimant filed a claim …
Continue ReadingSeeking Your Nomination
Attention blog readers! This year, the ABA Journal is publishing their first ever “Web 100” celebrating the best of the legal industry on the web. In order to be named, we’ll need your help! Since our launch this past spring, Workers’ Compensation Defense has been your source for current trends and precedent-setting litigation, to claims management and upcoming rule changes. We’ve also established our client portal, where current clients can find information on past and upcoming webinars, along with workers’ compensation reference documents like: state-specific …
Continue ReadingYour Injury Happened Where? New Jersey Appellate Division Rejects Two Attempts to Avoid the Going and Coming Rule
Two recent decisions by the New Jersey Appellate Division upheld the strength of the “going and coming” rule to bar workers’ compensation claims that did not occur at work. In New Jersey, injuries that occur during routine travel to and from work are not compensable. This comes from principle found in N.J.S.A. 34:15-36 (defining “employment”) that generally, employment starts when the employee arrives at his place of employment, and terminates upon leaving the place of employment. Section 36 was amended in 1979 to decrease the …
Continue ReadingWhen is Late Payment of Settlement Monies Excused?
Once a penalty for late payment pursuant to an approved settlement agreement is assessed under N.Y. Workers’ Compensation Law § 25 (3) (f), it is automatic, mandatory, and self-executing. This means that virtually no excuse will get you out of paying the hefty fine of 20 percent of the overall settlement agreement and an additional $50 fine due to the state treasury.
An office error or clerical mistake will not be sufficient to reverse the penalty. For example, a carrier inadvertently sent a check to …
Continue ReadingPlain Language of North Carolina Statute Withstands Challenge from Claimant
In North Carolina, a claimant’s right to seek additional medical compensation expires two years after the date of the employer’s last payment of medical or indemnity compensation (absent limited exceptions). N.C. Gen. Stat. § 97-25.1 Recently, the North Carolina Court of Appeals, in Anders v. Universal Leaf N. Am, issued an opinion rejecting a claimant’s attempt to get around this time limitation holding true to the plain language of the statute.
In Anders, the claimant suffered from a compensable accident resulting in bilateral …
Continue ReadingTo Litigate? Or to Split? That is the Question
Some of the most commonly litigated issues in Workers’ Compensation include degree of temporary disability and permanency (classification or schedule loss of use). More often than not, treating doctors and IMEs do not agree on issues concerning degree of disability or schedule loss of use. The question then arises as to whether the parties should litigate the issue through depositions of the doctors, or whether attempts should be made to negotiate a “split” of the disability rate or SLU award.
Defense counsels often genuinely enjoy …
Continue Reading