Combating Injured Workers’ IME Reports

Employers, carriers, and third-party administrators are all too familiar with Section 137 of the New York Workers’ Compensation Law and 12 NYCRR Section 300.2, as they govern Independent Medical Examinations (IMEs). Failure to meet or substantially comply with the necessary requirements of Section 137 puts you at risk of having your IME report precluded by a workers compensation law judge. The same holds true for injured workers when they are the party that produces an IME report. As such, it is important to recognize when …

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New York Workers’ Compensation Full Board Issues Decision Regarding WCL Section 15(3)(w) and the Classification Caps

The New York State Workers’ Compensation Board recently issued a decision in Matter of Jacobi Med. Ctr., No. 00825967, 2019 WL 645558 (N.Y. Work. Comp. Bd. Feb. 11, 2019) ruling that a claimant is only entitled to benefits for the duration of the capped period, regardless of surgeries subsequent to the time of classification.

In this case, the claimant was classified pursuant to a February 8, 2012 decision at a 50 percent loss of wage earning capacity, entitling the claimant to 300 weeks of …

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How Does it Work? Incarceration and Workers’ Compensation Benefits

The incarceration of a claimant receiving workers’ compensation benefits can be used as a defense to payment of indemnity benefits based on two similar, but distinct, arguments.

In general, where the carrier has been directed to pay workers compensation indemnity benefits by the New York Workers’ Compensation Board, the carrier may only suspend indemnity benefits unilaterally (without a new direction from the board) in certain circumstances. Per 12 NYCRR Section 300.23(b)(3)(iv), the carrier is allowed to suspend with proof of the claimant’s incarceration upon conviction …

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Symptom Magnification and Schedule Loss of Use

In New York, work-related injuries to an extremity, such as the hands, arms, legs, fingers or toes, often result in awards associated with a permanent impairment of said extremity. Under the Workers’ Compensation Law, an injured worker may be entitled to monetary benefits for such an impairment, which are referred to as awards for schedule loss of use.

A claimant bears the initial burden of producing a medical opinion to pursue awards for schedule loss of use. This is accomplished by having his or her …

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Make the Other Guy Pay: Using Loss Transfer to Recover First-Party Benefits When Subrogation Just Won’t Do

The New York “No-Fault” insurance scheme gives persons injured in a motor vehicle accident the right to recovery for basic economic losses. In a situation where a person is injured at work in a motor vehicle accident, a Workers’ Compensation insurer becomes the first-party benefits provider. As the Workers’ Compensation insurer/self-insurer is now burdened with the payment of benefits that may have been caused by a negligent motorist insured by another entity, Loss Transfer provides some options for relief.

The New York State Department of …

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Taher and Effect on Permanency Awards for Claimants with Both Schedulable and Classifiable Conditions

The New York State Supreme Court Appellate Division recently decided the case of Taher v. Yiota Taxi, Inc., in which it addressed the specific situation where a claimant is classified with a permanent partial disability and designated with a loss of wage earnings capacity (LWEC), but has both classifiable and schedulable conditions. The court has determined that a claimant may ultimately receive a schedule loss of use award (SLU) even if they are classified.

Previously, it has been the practice of the Board to …

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New York Court of Appeals Caps the “Additional Compensation” Awarded to Claimants Who Exhaust a Schedule Loss of Use Award

On December 11, 2018, the New York State Court of Appeals decided Matter of Mancini v. Office of Children and Family Services, 2018 N.Y. Slip. Op. 08425, 2018 WL 6492707. At issue was the “additional compensation” entitled to injured workers who exhausted their Schedule of Loss award (SLU) when such award was 50 percent or greater. The claimant argued that the reference to WCL Section 15(3)(w) in Section 15(3)(v) only incorporates that part of 15(3)(w) that calculates the weekly award. Thus, he was entitled …

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Jurisdictional Speed Bumps in the Trucking Industry

When are Claims Compensable in New York Workers’ Compensation Law?

Workers’ Compensation claims are usually straight-forward – a claimant is injured on the job and brings a claim for benefits. Sometimes, though, claims are not always that simple at the outset. A claimant may live in one state, and be injured in a different state, while working for an employer whose base is in a third state. These situations can often arise in the trucking industry, and can leave employers wondering where the claimant will …

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Average Weekly Wage Calculation

Average weekly wage (AWW) can be a significant factor in determining a carrier’s exposure in a workers’ compensation case in New York because it is the basis for indemnity benefits calculation for the duration of the case.  The compensation rate on a case is two-thirds of the AWW, subject to a statutory cap.

There are several methods for calculating AWW in New York.  New York Workers’ Compensation Law (WCL) § 14 controls, and there is extensive case law from the New York Workers’ Compensation Board …

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The Gig is Up: Couriers in the Gig Economy are not Employees in New York

The gig economy is an example of the changing workforce in our society. With that change comes the challenge of determining the employment status, under the law, of couriers who perform services in the gig economy. The appellate court in New York State recently tackled that challenge in Vega v. Postmates Inc., 162 A.D.3d 1337 (3d. Dept. 2018) and held that such couriers are not employees for the purpose of unemployment insurance benefits. Even though this claim pertained to unemployment insurance benefits, the Third …

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