Where a carrier has elected to controvert a claim, the Workers’ Compensation Law in New York sets forth a strict timeframe for filing a denial and initial pleadings. Section 25(2)(b) provides that once a claim has been indexed against an employer, the carrier must file a notice of controversy with the Chair within 25 days. Failure to file the notice of controversy within the prescribed 25-day time limit shall bar the employer and its insurance carrier from asserting multiple defenses, including that the claimant was …
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Part Two: The Growing Costs of Opioids in the Workplace – An NHL Tragedy
Welcome to our second installment of a three part series discussing Derek Boogaard, a former National Hockey League (NHL) player that died from an accidental drug overdose after leaving rehab. In the first part our series, we discussed Boogaard’s career in the NHL, his tragic death, and the tension that exists as a result of an employee’s prescription drug use and the employer’s oversight of said use. Here, we will discuss the deluge of litigation that occurred as a result of Boogaard’s death, including breach …
Continue ReadingNorth Carolina Court of Appeals Holds Medications Not Approved by FDA can Constitute Medical Compensation
The Court of Appeals of North Carolina recently affirmed an Industrial Commission decision that use of non-FDA approved “compound creams” prescribed by an authorized treating physician was compensable medical treatment to be provided by the employer.
In Davis v. Craven County ABC Board, the plaintiff suffered compensable complex regional pain syndrome. He was prescribed a non-FDA approved compound cream and testified that it relieved some of his symptoms. The defendants refused to honor the prescription for several reasons, arguing that, among other things, the medication …
Continue ReadingPart One: The Growing Costs of Opioids in the Workplace – An NHL Tragedy
Over the coming weeks we will be delving into the lengthy saga that involves Derek Boogaard, his estate, the National Hockey League (the NHL), and the National Hockey League Players’ Association (the NHLPA).
This first installment of our three part series will lay the foundation of Boogaard’s career in the NHL, his tragic death, and the tension that erupted as a result of an employee’s prescription drug use and the employer’s oversight of said use. The second installment will discuss the deluge of litigation that …
Continue ReadingPractice Tips for Securing the Mandatory and Discretionary Penalties under WCL Section 114(a)
Once a claim has been established, there are numerous defenses a carrier may raise to limit exposure in situations where the claimant has not returned to work. One of these defenses can be found under Section 114(a) of the Workers’ Compensation Law. The applicable case law reads:
… Continue Reading“If for the purpose of obtaining compensation . . . a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false
Proposed Pennsylvania Legislation May Increase Workers’ Compensation Claims for Asbestos-Related Diseases
Republican Pennsylvania State Representative, Eli Evankovich introduced a bill on April 2, 2018 to eliminate the ability of employees to sue their employers for asbestos-related diseases. Prior to the Pennsylvania Supreme Court’s issuance of the Tooey decision in November 2013, Pennsylvania employees were barred from filing suit against their employers due to the exclusivity provision of the Pennsylvania Workers’ Compensation. Tooey v. AK Steel., 81 A.3.d 851 (2013). Those employees could file a workers’ compensation claim if diagnosed within 300 weeks of their last date …
Continue ReadingNoise: How Much is Too Much?
According to the Occupational Safety and Health Administration (OSHA), 22 million workers are exposed to potentially damaging noise at work each year. In 2017, employers paid $1.5 million in penalties for not protecting workers from noise. OSHA estimates approximately $242 million is spent on workers’ compensation claims for hearing loss. But how much noise is too much? When should you provide protection? And how in the world do you defend against a vague claim alleging exposure to “loud noise”?
Each time a claimant files a …
Continue ReadingThe War on Wages
A common issue in the workers’ compensation world is properly setting the claimant’s average weekly wage (AWW). Of course, claimant’s counsel will always look for a way to establish the highest AWW possible. It is important to know the how to properly set the AWW, even in unique situations, because adding even a few dollars to the AWW can greatly affect the value of a claim.
The AWW of an injured employee at the time of the injury should be used as the basis for …
Continue ReadingIt’s All About the Money — Recent Developments Regarding the Calculation of Claimant’s Average Weekly Wage
Recently, the Court of Special Appeals of Maryland (CSA) weighed in on the calculation of claimant’s average weekly wage when an employee, hired for full-time employment, involuntarily worked in a part-time capacity in the weeks leading up to his accidental injury. In Richard Beavers Construction, Inc., et al. v. Wagstaff, 2018 WL 1129655 (2018), the CSA held that the Workers’ Compensation Commission properly determined a claimant’s average weekly wage based on the claimant’s anticipated 40 hour work week rather than using the six weeks …
Continue ReadingMaryland State Senate Passes Bill Requiring Self- Insured Employers to Report Fraud
On March 6, 2018, the Maryland State Senate passed a bill that would require self-insured employers to report workers’ compensation fraud to the Maryland Insurance Administration’s Fraud Division. S.B. 575 was sponsored by Senator Katherine Klausmeier of Baltimore County and is now pending in the Maryland House. Subject to any further changes and amendments, it is expected to be passed by the House and take effect in October 2018.
The bill requires all employers who self-insure or participate in a self-insurance group for workers’ compensation …
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