Workers' Compensation Defense

September 5, 2018 General

Exercising At Work Could Cause Claimants to Exercise their Rights to Workers’ Compensation Benefits

Many employers offer a wide variety of benefits to their employees, including on-site gym memberships. While it may be a benefit to the employee, it could lead to Workers’ Compensation liability to the employer. Generally, for an accident to be compensable, it must both occur in the course of employment and arise out of the employment. In order to find that an accidental injury occurred in the course of employment, the injury must have been received while the employee was doing the work for which …

August 13, 2018 General / New York

Does a Denial of a “Defective” RB-89 Constitute a Denial of Due Process?

Recently, the Workers’ Compensation legal community has seen a series of decisions issued by the Workers’ Compensation Board that seem to mark a change in policy on behalf of the Workers Compensation Board. Specifically, the decisions have focused around one crucial issue- does a party’s failure to properly and fully completely fill out the required form to maintain an application for board review or rebuttal (RB-89 or RB-89.1) render the entire application defective?

In a series of decisions, the Workers’ Compensation Board has seemed to …

August 13, 2018 Illinois

Illinois Legislature Looking to Reduce Costs by Reforming Risk

Illinois has recently proposed legislative reform to the Illinois Workers’ Compensation Act. The ultimate goal of the proposed legislation is to reduce costs of litigation and exposure for workers’ compensation injuries. While it is important to deliberate proposed legislation, it is also important to remember its impact is undecided. The following is an analysis of one particular proposed amendment regarding neutral risk, which may not meet the goals of legislative reform.

The proposed amendment, Illinois Senate Bill 12, attempts to provide more guidance regarding the …

August 13, 2018 General / New York

Difficulties and Questions Presented by the Board’s New Digital Audio Recordings

Since the inception of the statewide virtual hearing platform in March of this year, there have been many concerns over the efficiency and effectiveness of the new hearing process. One of the major concerns has been whether there will be a clear, concise, and easily accessible record of workers’ compensation hearings. The virtual hearing platform brought with it a digital audio recording system that records all workers’ compensation hearings verbatim. This system replaced the old system of a court stenographer being present for every hearing. …

July 30, 2018 Medical Marijuana

“You Can’t Get There From Here”: Maine Supreme Court Says Compelling Medical Marijuana Coverage Conflicts with Federal Law

Recently, the Maine Supreme Court issued a decision that surprised workers’ compensation professionals across the country. In Bourgoin v. Twin Rivers, 2018 ME 77, 2018 WL 2976309 (June 14, 2018), the court decided that a workers’ compensation carrier cannot be compelled to subsidize a claimant’s medicinal marijuana treatment. In that case, the claimant received a certification under the Maine Medical Use of Marijuana Act (MMUMA) for the use of medicinal marijuana to treat work-related injuries. The court determined that requiring the carrier to subsidize …

July 30, 2018 General / New York

Know Your Client’s Special Preferences

For controverted workers’ compensation claims in New York, the issue of general versus special employment can be raised by your client as a defense to liability. The issue of general versus special employment usually arises in circumstances when the claimant is hired and paid by one employer but works at the location and under the direction of another employer. For instance, a claimant who works for a temporary staffing agency and is placed at assignments with several employers and is then injured at the site …

July 16, 2018 Medical Marijuana / Post-Accident Drug Testing

Cross-Border Implications of the Canadian Cannabis Act in New York Workers’ Compensation Law

The rapid evolution of both medical and recreational marijuana creates unique issues for employers and insurers. Although this may be a statement of the obvious, it is especially true in New York, a state which shares a 445-mile border with Canada.

Recreational marijuana may soon be legal in Canada, after its Legislature approved the Cannabis Act in June of this year. The proposed law would make it legal for anyone over the age of 18 to possess marijuana in limited quantities. It also allows Canadians …

July 16, 2018 General / New Jersey

Got Insurance? What You Need to Know if You Are An Uninsured Employer in New Jersey

Under New Jersey law, every corporation, limited partnership, as well as any employer required by law to submit an annual report, must provide valid proof of workers’ compensation coverage as part of its annual report. There are two ways that an employer can demonstrate valid proof of workers’ compensation coverage. An employer can either show proof of having coverage with an insurance carrier or by being self-insured. A self-insured employer must provide documentation by way of a current order from the Commissioner of Banking and …

July 6, 2018 Medical Expenses

Settlement with the U.S. Department of Justice on outstanding conditional Medicare payments is a stark reminder to look before you leap when settling a claim.

On June 18, 2018, the United States Department of Justice (DOJ) issued a press release regarding a settlement involving claims that a personal injury law firm failed to properly reimburse conditional medical payments to Medicare. This press release is a stern warning that Medicare is required, by statute, to seek reimbursement for conditional payments made as a secondary payer — and it will. See 42 U.S.C. Section 1395y (6).

Conditional payments are payments made by Medicare before a beneficiary has obtained settlement, judgement, award or …