One of the more seemingly futile defenses to a workers’ compensation claim is the defense originating from Section 18 of the Workers’ Compensation Law requiring a claimant to provide written notice to the employer within 30 days of an incident. The statute itself provides that late notice can be excused, provided the employer had actual notice or if the employer did not suffer any prejudice for the late notice. In many cases, the WCB has excused late notice to the employer in one way or …
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The Illinois Appellate Court Narrows the Scope of Compensable Parking Lot, Slip and Fall Claims
As the harsh conditions of winter wind down in the Midwest, slip and fall claims tend to ramp up. Traditionally, injuries sustained as the result of a hazardous condition in an employer maintained parking lot have supported a finding of compensability. Suter v. Illinois Workers’ Compensation Comm’n, 2013 IL App (4th) 130049WC. However, recent decisions from the Illinois Appellate Court and Illinois Workers’ Compensation Commission have narrowed the scope of what are considered “hazardous conditions” under neutral risk analyses in evaluating compensability of parking …
Continue ReadingGetting Your Recorded Statement into Evidence Under Rule 608
Most adjusters handling North Carolina workers’ compensation matters take recorded statements as part of their claims investigation. For defense counsel, this is one of the most important documents used to defend denied claims. This post is a reminder of two technical requirements that must be met with regard to all recorded statements. If these requirements are not met, the statement can be excluded from evidence by the Industrial Commission. This can be catastrophic to the defense of the claim.
Recorded statements are governed by North …
Continue ReadingCompensability of Stress Claims Based On Workplace Harassment
One of the more frustrating areas of Workers’ Compensation law is stress claims. Often, the extent of a claimant’s disability is based solely on their subjective complaints because there is no apparent physical disability. Doctors are sympathetic to their patients and readily determine that their work environment is the source of their stress. This can be difficult to defend against, especially when the evidence suggests that the claim arises from a simple disagreement between coworkers or a harsh reprimand from a supervisor. It is important …
Continue ReadingMitigating Some of the Pitfalls Leading to Preclusion
Preclusion. In Connecticut Workers’ Compensation, it’s a word that employers, claims handlers, and respondent’s counsel alike hope never to have associated with one of their files. Which begs the questions, what exactly is preclusion? How can it come into a case? And how can it be avoided?
After a claimant serves the respondent and the Workers’ Compensation Commission with a notice of a claim for benefits (Form 30C), the respondent has 28 days to: 1) accept the claim; 2) properly contest the claim (Form 43); …
Continue ReadingNew York Sets Boundaries: How to Calculate Schedule Loss of Use of the Shoulder in 2018
The New York Appellate Division has provided direction on what constitutes an improper calculation of the schedule loss of use of a shoulder. In Matter of Maloney v. Wende Correctional Facility, 2018 WL 456207 (January 18, 2013), the claimant injured his right shoulder as a result of a work related accident on July 30, 2013. The claimant’s treating physician rendered a permanency finding of 90 percent schedule loss of use of the right arm. The employer and the insurance carrier, collectively “the employer”, obtained …
Continue ReadingProposed Rules Aimed at Addressing Opioid Epidemic and its Impact on North Carolina Workers’ Compensation Claims Continue to Progress
As the opioid epidemic continues to sweep the country, the North Carolina Industrial Commission has taken notice. In February 2017, Chairman Charlton Allen established an Opioid Task Force aimed at finding solutions to address the opioid epidemic and the impact on workers’ compensation claims. Late last year, the Industrial Commission published draft rules for public comment on the utilization of opioids and pain management in workers’ compensation claims.
On January 16, 2018, the Industrial Commission announced that the proposed rules were published in Volume 32, …
Continue ReadingWill the Recently Issued Sessions Memorandum Have a Chilling Effect on States’ Plan for Legalization of Medical and Recreational Marijuana?
During the Obama administration, a memorandum issued by then deputy attorney general James M. Cole in 2013 dealt with the issue of federal prosecution of alleged crimes involving marijuana in states where it was a legal substance either for medical use, recreational use, or both. The memo seems to grant broad latitude to exercise prosecutorial discretion in states where marijuana had been legalized. The memo was interpreted as a hands-off edict rather than the guidance it was supposed to embody.
For several years, the states …
Continue ReadingDealing with Testimony in a Virtual Hearing
As the virtual roll-out continues and more locations have become virtual, the bugs are getting worked out. We have appeared virtually on several occasions and have had only one day of delays due to technical issues.
There are some types of hearings and scenarios that the virtual process is ready-made to address: C-8.1 hearings for minor treatment disputes, production hearings that will only be adjourned for depositions, and a Reserved Decision or 32 hearings come to mind. These types of hearings are often short, require …
Continue ReadingThe C-3: Often Overlooked as a Major Tool for Important Defenses
Oftentimes the C‑3 is overlooked as a possible tool to use against the claimant, but there are a few ways the C‑3 can be used to bolster a few major defenses, including violation of Workers’ Compensation Law Section 114(a).
First, a C‑3 can be used during the initial investigation of the file. If at the time of the initial investigation of the claim, a C-3 has not yet been submitted, it is recommended that a recorded statement of the claimant be obtained detailing the specifics …
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