When Is Asthma a Compensable Occupational Disease in New York State Workers’ Compensation Claims?

Joseph Melchionne
Joseph Melchionne, Esq.

In the state of New York work-related injuries are compensable, giving rise to an entitlement to medical and indemnity benefits from the self-insured employer or insurance carrier, if the work injury was causally related to the claimant’s employment. According to Workers’ Compensation Law (WCL) § 21,  injuries that occur at a claimant’s job are presumed to be compensable work-related injuries for the purposes of awarding indemnity benefits unless substantial evidence to the contrary is submitted.

Therefore, if an employee suffers an injury or develops an occupational disease during work hours, on the premises of his or her place of employment, or as a result of becoming exposed to irritants or pollutants as a consequence of employment, the claimant will be entitled to indemnity benefits for any causally related lost time from their employment as long as they are able to produce medical reports evidencing a disability resulting from the injury. Continue reading When Is Asthma a Compensable Occupational Disease in New York State Workers’ Compensation Claims?

Explainer: The Independent Contractor Defense in New York

Only an employee is entitled to workers’ compensation benefits. Whether or not a claimant is an employee or an independent contractor is a factual issue for the WCB. After the facts of the relationship have been presented, the Board will decide if an employee-employer relationship exists. Appeal can be made to the Appellate Division Third Department.

A recent case helps illustrate the problem. In the case, the claimant was a cleaner who worked in a number of buildings owned by the alleged employer. The claimant was paid a fixed amount per week by check. According to the claimant, he worked for the alleged employer exclusively. Most telling, the claimant was told “where to work as well as what to do.” According to testimony, “(we) instructed and supervised the claimant, (and) would ordinarily contact him if he was required to do specific cleaning work.”

The Board found that the claimant was an employee and not an independent contractor. The Appellate Court agreed, stating “relevant considerations include the right to control the work, the method of payment, the right to discharge and the relative nature of the work; however, no single factor is dispositive.”

What factors does the Board consider in deterring whether an alleged employee is an “Independent Contractor?”

To be considered an independent contractor, and thus not an employee, the Board has stated that an individual must meet and maintain all ten of the following conditions:

  1. Obtain a Federal Employer Identification Number from the Federal Internal Revenue Service (IRS) or have filed business or self-employment income tax returns with the IRS based on work or service performed the previous calendar year;
  2. Maintain a separate business establishment from the hiring business;
  3. Perform work that is different than the primary work of the hiring business and perform work for other businesses;
  4. Operate under a specific contract, and is responsible for satisfactory performance of work and is subject to profit or loss in performing the specific work under such contract, and be in a position to succeed or fail if the business’s expenses exceed income.
  5. Obtain a liability insurance policy (and if appropriate, workers’ compensation and disability benefits insurance policies) under its own legal business name and federal employer identification number;
  6. Have recurring business liabilities and obligations;
  7. If it has business cards or advertises, the materials must publicize itself, not another entity;
  8. Provide all equipment and materials necessary to fulfill the contract;
  9. Control the time and manner in which the work is to be done; and
  10. The individual works under his/her own operating permit, contract or authority.

Although the Board has issued this ten-part test, note that the case law contains less restrictive definitions – and this list is helpful, but is not precedent.

Trucking and the Independent Contractor defense to Employment:

To be considered an independent contractor, drivers must also be transporting goods under

  • their own bill of lading and
  • their own Department of Transportation Number.

A business CANNOT require employees working for that business to obtain their own workers’ compensation insurance policy or contribute towards a workers’ compensation insurance policy. WCL§§ 31, 32, 32-a.

Factors to Consider in Finding Employment.

Whether or not an injured claimant is an employee or an independent contractor is a common dispute. The Board defines an “employee” differently than does the Federal government (for example, tax filing status is immaterial in a determination of employment.)

The Board considers the following factors in determining whether an injured claimant is an employee or was an independent contractor (and therefore not eligible for benefits):

Who has the Right to Control the claimant?

What was the degree of direction and control the alleged employer exercised over the claimant? A person or organization controlling the manner in which the work is to be performed indicates that the task is being performed by an employee. If the person doing the labor controls the time and manner in which the work is to be done this may indicate that the task is being done by an independent contractor.

Rule of thumb: If an individual is truly independent, the individual generally works under his/her own operating permit, contract or authority.

​Was the Character of the work performed by the claimant the Same as the Employer?

Work done consistent with the primary work performed by the hiring business indicates that the labor was done by an employee. Work done by a person that is different than the primary work of the hiring business may indicate the task is being performed by an independent contractor. (For example, someone paving a driveway for a driveway contractor is generally considered the employee of that paver. Conversely, a plumber hired on a one time basis to fix a broken pipe for a retail store owner is generally considered an independent contractor – the character of the plumber’s work is different than the work done by the retailer.)

What was the Method of Payment?

Employees tend to be paid wages on an hourly, daily. weekly, or monthly basis. Similarly, employment is indicated if the hiring business withholds taxes and/or provides other employee benefits (Unemployment Insurance, health insurance, pensions, FICA, etc.) Whether the labor is paid using a W2 or 1099 Form for tax purposes does not matter in determining an employer/employee relationship for workers’ compensation purposes. A business paying cash to an individual for services usually indicates that the individual is an employee. Payment made for performance of the task as a whole may indicate the task is being done by an independent contractor.

Who Furnished the Equipment/Materials for the job?

A business providing the equipment and/or materials used by people in performing the work tends to indicate an employer-employee relationship. ​

Who has the right to Right to Hire/Fire at the worksite?

A business retaining the authority to hire and fire the individuals performing the work indicates an employee is performing the work. An independent contractor retains a degree of control over the time when the work is to be accomplished and is not subject to be discharged by the hiring entity because of the method he chooses to use in performing the work. Naturally, an independent contractor’s services may be terminated if the services rendered do not meet contractual requirements.

All factors may be considered and no one factor alone determines whether a person will be considered an employee under the WCL.

Understanding the Notice and Statute of Limitations Defenses in New York

Greg LoisAn employer must provide statutory benefits to employees who have an accident and sustain an injury which arises out of and in the course of employment. It follows that an employer must be notified of the accident and any resulting injury, within a reasonable time, so that it has an opportunity to determine if the claimant is entitled to benefits, and the extent of those benefits, before it can be held responsible for compliance.

Notice to the Employer.

The employee must provide notice to the employer within 30 days after the accident causing injury or death to the employee. WCL §18. The notice should be in writing and provide:

  • The name and address of the employee;
  • The time of the accident causing the injury;
  • The place of the accident;
  • The nature of the injury sustained by the employee;
  • The cause of the injury; and
  • The signature of the employee, or a person on behalf of the injured employee.

​Manner of transmission.

If the notice is sent to the employer via mail, the notice must be sent via registered mail to the last known place of business. WCL § 18.

If the notice is delivered in person, notice must be handed to a partner (if it is a partnership) or someone authorized to receive process (if the employer is a corporation). WCL §18. Continue reading Understanding the Notice and Statute of Limitations Defenses in New York

New Jersey Workers’ Compensation Indemnity Benefits

In New Jersey, workers compensation benefits are basically broken down into two broad categories, medical benefits and indemnity benefits. Medical benefits are designed to provide the petitioner with payment for all medical expenses incurred as a result of a work related injury. Indemnity benefits, generally, are benefits paid to an injured worker to replace part of the worker’s lost income. There are three types of Indemnity benefits in New Jersey, temporary total disability, permanent disability benefits and dependency benefits.

Temporary disability benefits refer to the temporary payment of income to the petitioner while he is unable to work. The payment of temporary disability benefits is mandatory under N.J.S.A. 34:15-38, which essentially states that temporary disability payments of 70% of the injured worker’s wages for the year in which the injury occurred or his occupational disease manifests are payable until he is “able to return to work.” Please note that these wages are subject to the annual statutory minimum and maximum, which change every year. In 2016 the maximum rate of temporary total disability is $871 per week; the minimum rate was $232 per week.

Continue reading New Jersey Workers’ Compensation Indemnity Benefits

Are illegal aliens entitled to workers’ compensation benefits in New York?

Greg Lois
Gregory Lois, Esq.

Every employer and every employee is subject to the jurisdiction of the New York Workers Compensation Law if doing business in New York. There are some exceptions: for example, Federal employees and longshoreman are not covered by the Law. Under New York’s Workers’ Compensation Law, most individuals providing services to a for-profit business will be deemed an employee of that business and therefore must be covered by the employer for workers’ compensation insurance. This applies unless those services are specifically excluded as employment under the WCL.

What about resident aliens, illegal aliens, or undocumented workers?

Resident aliens.

Aliens who are in covered employment in New York can be entitled to workers’ compensation benefits when injured in the course of that employment. Mizugami v. Sharin West Overseas, Inc., 599 N.Y.S.2d 480 (1993) and WCL §§ 16, 17. Continue reading Are illegal aliens entitled to workers’ compensation benefits in New York?

New York State Workers’ Compensation Heart Attack Claims

Joseph Melchionne
Joseph Melchionne, Esq.

Pursuant to Workers’ Compensation Law (WCL) § 21,  injuries that occur at a claimant’s place of employment are presumed to be compensable work-related injuries for the purposes of awarding indemnity and medical benefits unless substantial evidence to the contrary is produced.  In essence what this means is that if an employee suffers an injury during work hours and/or on the premises of his or her place of employment, the claimant will be entitled to indemnity benefits for any causally related lost time from their employment as long as they are able to produce medical reports evidencing a disability resulting from the injury.

However, according to WCL § 10,  New York law dictates that for a workers’ compensation claim to be compensable the associated accident must have arose out of and in the course of employment, meaning there must be a causal nexus between the injury and the claimant’s employment. Idiopathic injuries, or personal injuries, may create a defense to a Workers’ Compensation claim if the employer can rebut the presumption that accidents arising in the course of employment arise out of the employment with “substantial evidence to the contrary.” See WCL §21.

Continue reading New York State Workers’ Compensation Heart Attack Claims

Defending Employers