Schedule Loss of Use Award or Classification? Litigation Trends Following Taher

On June 14, 2018, the Third Department of the New York State Appellate Division issued the decision Matter of Taher v. Yiota Taxi. In Taher, the Third Department addressed the question of whether a claimant may receive both a schedule loss of use (SLU) award and classification arising out of the same work-related injury at the time of permanency. Ultimately, the Third Department held that a claimant cannot receive both
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The Effect of Immigration on New York Workers’ Compensation

New York state has one of the largest undocumented immigrant populations in the nation, coming in fourth behind Texas, California, and Florida. According to the most recent study taken by Pew Research Center in 2016, 725,000 unauthorized immigrants lived in New York state. Although it is illegal for employers to hire immigrant workers who are not documented and authorized to work in the United States, whether it is intentional or
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What to Expect with Wage Expectancy: A Primer

When dealing with claims of injured workers under the age of 25, the wage expectancy statute of New York’s workers’ compensation law looms overhead that first time you calculate the claimant’s wage at the time of injury. While it does not apply in every instance, there are some ways to effectively avoid pitfalls. One major key to your defense is setting up a game plan as early as possible. The
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The Biggest Loser: How to Handle Requests for Causally Related Bariatric Bypass Surgery

Under the New York State workers’ compensation law, an employer or carrier “shall promptly provide for an injured employee such medical, surgical, optometric or other attendance of treatment . . . for such period as the nature of the injury or the process of recovery may require.”  This is a pretty general requirement, but it opens the door to a new question: what happens when an injured worker requires back
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Employer Reimbursement for a Salary Continuation Plan

New York State Workers’ Compensation Law (WCL) Section 25 governs how compensation is paid under a workers’ compensation claim. WCL Section 25(4)(a) was designed to encourage employers to continue wage payments to workers during periods of work-related disability by providing the employers with a statutorily protected source of repayment. Landgrebe v. County of Westchester, 453 N.Y.S.2d 413 (1982). WCL Section 25(4)(a) allows an employer to recover reimbursement for payments made
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Credit on SLU Payments and Recovery of a Third-Party Action Lien: Why They Live Together in Perfect Harmony

In New York, Workers’ Compensation Law Section 15(4-a) provides a carrier the right to take a credit against a subsequently determined schedule award for disability payments that have already been received for the same injury. This is relatively common knowledge in the world of workers’ compensation, and this credit is never met with much pushback from claimant’s counsel – unless, of course, a third-party action is involved. Under Workers’ Compensation
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The Interstate Medical Provider Claim: Unsettled Jurisdictional Questions Open the Floodgates in New Jersey

As overall filings in the New Jersey Workers’ Compensation Courts have been falling, one particular type of claim is on the rise: the Medical Provider Application for Payment or Reimbursement of Medical Payment. The statutory authority for these “Medical Provider Claim Petitions” (MCPs) is found in a single sentence in the depths of New Jersey Statutes Annotated 34:15-15: “[e]xclusive jurisdiction for any disputed medical charge arising from any claim for
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The Carriers’ New Tool: Jacobi Medical Center

There are very few concepts under the New York Workers’ Compensation system that are in favor of the employer and carrier. Once a claim is established, employers and carriers have few tools on their side to even the playing field in the claimant-friendly world of workers’ compensation. In appropriate situations, for example, employers and carriers can litigate the issues of labor market attachment, fraud under WCL 114(a), and further causally
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Raising Self-Limitation on Reduced Earnings: A New Approach

How many times has your attorney heard this whispered after raising labor market attachment:  “Just go get any job out there and they’ll pay you the difference – any job will do.” If you work two hours a week, you’re attached and owed reduced earnings. This scenario came up during a recent litigation on the issue of labor market attachment and entitlement to awards. In that case, the claimant’s attorney
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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
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