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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North Carolina Court of Appeals Affirms Denial of Workers’ Compensation Claim After a Fatal Accident in a Company Vehicle
Gregory S. Horner and Alexandra S. Kensinger of Goldberg Segalla recently secured victory before the North Carolina Court of Appeals. In Wright v. Alltech Wiring & Controls, an employee died as a result of a motor vehicle accident which occurred while he was traveling home from work in a company vehicle. His estate argued that he was in the course and scope of his employment because he was driving a company vehicle.
Citing the “going and coming rule,” we argued that the decedent was …
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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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Forum Section Critical in Carolina UIM Benefits Case
A recently published North Carolina Court of Appeals workers’ compensation case highlights an issue for consideration when there is an opportunity to select a forum for workers’ compensation benefits involving a claim where UIM benefits are a potential recovery source for subrogation.
In Walker v. K&W Cafeterias, Robert Walker (decedent) was killed in a motor vehicle accident while driving a truck for his employer, K&W Cafeterias, Inc. K&W is a North Carolina corporation, but the accident occurred in South Carolina and decedent was a resident …
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A Claimant’s Prioritization Towards Settlement
From the inception of a workers’ compensation claim, it is moving towards its conclusion, be that classification, a schedule loss of use award, or a settlement. A defense attorney will be working to move the claim towards an ideal conclusion reducing the exposure of their client. A claimant, however, will have other, often unpredictable, goals to their workers’ compensation claim.
A claimant will, by nature, focus on only aspects of their workers’ compensation claim. While the system can provide a comprehensive variety of benefits, awards, …
Continue ReadingThe Current State of the North Carolina Industrial Commission
Before Governor Cooper was set to take office in 2017, the North Carolina legislature allowed outgoing Governor, Pat McCrory, to appoint Charlton Allen as the chair of the North Carolina Industrial Commission. McCrory also appointed Yolanda Stith as vice-chair of the commission and provided her with a nearly nine-year term.
Following McCrory’s appointments, incoming Governor Cooper brought suit against Senate Leader Philip Berger and House Speaker Tim Moore, as well as Charlton Allen and Yolanda Stith.
In an order and judgment filed on December 3, …
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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 …
Continue ReadingTaher 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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