Redefining Total Disability: How to Approach Nonschedule Claims After Jacobi

In a post-2007 reform world, the percentage disability became more important for one major purpose: establishing a capped benefit system for nonscheduled awards. From a carrier perspective, this was a positive and a step in the right direction as the Board was finally placing limits on the number of weeks that a claimant with a partial disability rate can receive benefits.  The issue arose then of what to do with a claimant who was classified with a nonscheduled award, but subsequently had a period of …

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Concurrent Employment – Limiting and Litigating Average Weekly Wage

Claimants may have more than one job at the time of their work incident. Pursuant to New York Workers’ Compensation Law Section 14(6), the average weekly wage can be increased if the claimant has two or more jobs at the time of the work injury. Therefore, this issue of concurrent employment is raised by a claimant, and not a carrier, because it can mean more indemnity benefits to the claimant. When concurrent employment is raised, the claimant should provide written documentary proof of concurrent employment, …

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Special Funds Liability Under the Board’s Special Funds Group

It has become apparent over the recent years that the New York Workers’ Compensation Board, along with the Special Funds Group, will go to great lengths to resolve themselves of liability for outstanding claims under NY WCL Section 25(a), as well as 15(8), particularly in consequential death claims.

Under the 2007 reforms, the then-Second Injury Fund was closed to new claims with dates of injury on or after July 1, 2007. Then, on March 29, 2013, Section 25(a) was amended to close the Fund for …

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The Effect of Immigration on New York Workers’ Compensation

New York state has one of the largest undocumented immigrant populations in the nation, coming in fourth behind Texas, California, and Florida. According to the most recent study taken by Pew Research Center in 2016, 725,000 unauthorized immigrants lived in New York state. Although it is illegal for employers to hire immigrant workers who are not documented and authorized to work in the United States, whether it is intentional or not, employers continue to hire undocumented immigrant workers every day.

When undocumented workers are injured …

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What to Expect with Wage Expectancy: A Primer

When dealing with claims of injured workers under the age of 25, the wage expectancy statute of New York’s workers’ compensation law looms overhead that first time you calculate the claimant’s wage at the time of injury. While it does not apply in every instance, there are some ways to effectively avoid pitfalls. One major key to your defense is setting up a game plan as early as possible.

The wage expectancy provision of the workers’ compensation law was enacted in recognition of the fact …

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Compensability 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 …

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The Interweb of Lies: Why Employers May Want to Look a Little Closer at Claimants’ Job Searches

Stop the presses — the majority of job applications are completed online now!

Obviously, this comes as no surprise in the realm of New York Workers’ Compensation Law — the Full Board Panel handled this precise issue in Matter of Suffolk County Health Services (2016 NY Wrk. Comp. 0713095). Ultimately, the Full Board slightly modified the landmark decision of American Axle and determined that, when applying online, the claimant must either:

  1. Provide a confirmation e-mail or reference number; or
  2. If no such evidence is available,
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