Attention blog readers! This year, the ABA Journal is publishing their first ever “Web 100” celebrating the best of the legal industry on the web. In order to be named, we’ll need your help! Since our launch this past spring, Workers’ Compensation Defense has been your source for current trends and precedent-setting litigation, to claims management and upcoming rule changes. We’ve also established our client portal, where current clients can find information on past and upcoming webinars, along with workers’ compensation reference documents like: state-specific …
Continue ReadingLATEST INSIGHTS
Your Injury Happened Where? New Jersey Appellate Division Rejects Two Attempts to Avoid the Going and Coming Rule
Two recent decisions by the New Jersey Appellate Division upheld the strength of the “going and coming” rule to bar workers’ compensation claims that did not occur at work. In New Jersey, injuries that occur during routine travel to and from work are not compensable. This comes from principle found in N.J.S.A. 34:15-36 (defining “employment”) that generally, employment starts when the employee arrives at his place of employment, and terminates upon leaving the place of employment. Section 36 was amended in 1979 to decrease the …
Continue ReadingWhen is Late Payment of Settlement Monies Excused?
Once a penalty for late payment pursuant to an approved settlement agreement is assessed under N.Y. Workers’ Compensation Law § 25 (3) (f), it is automatic, mandatory, and self-executing. This means that virtually no excuse will get you out of paying the hefty fine of 20 percent of the overall settlement agreement and an additional $50 fine due to the state treasury.
An office error or clerical mistake will not be sufficient to reverse the penalty. For example, a carrier inadvertently sent a check to …
Continue ReadingOpioid Epidemic: Let the Weaning Begin
In the workers’ compensation world, the Board has acknowledged opioid addiction as “a major public health crisis” that “deeply affects” New York’s injured workers. So it comes as no surprise that in that same announcement, the Board re-asserted its opinion that long-term opioid use is rarely recommended and should be done in restricted circumstances with much oversight.
While some claimants’ counsels like to argue that opioid use is not an issue that should be decided upon by a judge and some judge’s may shy away …
Continue ReadingPennsylvania Supreme Court Declares IRE Provision of the Workers’ Compensation Act Unconstitutional
On June 20, 2017, the Pennsylvania Supreme Court found Section 306(a.2) of the Workers’ Compensation Act to be unconstitutional. The decision in Protz v. Workers’ Compensation Appeal Bd. (Derry Area School District) means that indemnity benefits are no longer subject to a cap.
In the majority opinion authored by Justice Wecht, the court determined that the General Assembly’s delegation of authority to the American Medical Association (AMA), a private entity, was unconstitutional. The General Assembly must not only make “basic policy choices,” but it must …
Continue ReadingPost-Wilkes Decision Tips for Handling Workers’ Compensation Claims
We recently wrote about the impact of the Wilkes v. City of Greenville decision. In this ruling, the North Carolina Supreme Court significantly expanded the “Parsons presumption,” which posits a relationship between an original work-related injury and additional treatments required. It is possible that the North Carolina General Assembly will overturn the decision — though there is no guarantee. If the General Assembly does not act, then we can expect to see a significant increase in claims for new body parts and conditions following …
Continue ReadingPlain Language of North Carolina Statute Withstands Challenge from Claimant
In North Carolina, a claimant’s right to seek additional medical compensation expires two years after the date of the employer’s last payment of medical or indemnity compensation (absent limited exceptions). N.C. Gen. Stat. § 97-25.1 Recently, the North Carolina Court of Appeals, in Anders v. Universal Leaf N. Am, issued an opinion rejecting a claimant’s attempt to get around this time limitation holding true to the plain language of the statute.
In Anders, the claimant suffered from a compensable accident resulting in bilateral …
Continue ReadingThe Erosion of the Off-Premises Lunch Defense
The Compensation Review Board (CRB) in DeForest v. Yale-New Haven Hospital, 6075 CRB-3-16-2 (April 6, 2017) issued a ruling that has continued the erosion of the off-premises lunch defense. In the late 1990s, injuries that occurred during an off-premises lunch break were typically not compensable based on the ground that such activity did not occur in the course and scope of employment. See Kaplan v. State of Connecticut/Department of Health Services, 2012 CRB-1-94-4 (September 11, 1995). The continued erosion of the off-premises lunch …
Continue ReadingSure, Work Can be Stressful. But Can that Result in a Workers’ Compensation Claim in New York?
Everyone has experienced stressful times while at work, whether they were tight deadlines, arguments with a coworker, or dealing with difficult customers. Can that stress, and any resulting psychological issues, be considered a compensable Workers’ Compensation claim in New York State? The answer, not surprisingly, is that some, but not all, psychological injuries are compensable.
It has been held that undue or excessive work-related stress and anxiety may constitute an accident under the NYS Workers Compensation Law. Section 2(7) of the NYS Workers Compensation law …
Continue ReadingTo Litigate? Or to Split? That is the Question
Some of the most commonly litigated issues in Workers’ Compensation include degree of temporary disability and permanency (classification or schedule loss of use). More often than not, treating doctors and IMEs do not agree on issues concerning degree of disability or schedule loss of use. The question then arises as to whether the parties should litigate the issue through depositions of the doctors, or whether attempts should be made to negotiate a “split” of the disability rate or SLU award.
Defense counsels often genuinely enjoy …
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