Video: Appeals of New York Workers’ Compensation Board Decisions

Two attorneys cover the fundamentals of appeals from Board decisions. Presenters Declan Gourley and Joseph Melchionne have years of experience representing employers and carriers before the Board. The presentation is designed to help the attendee answer the following questions:

  • “Should we appeal the Law Judge’s Decision in a workers’ compensation claim?” and
  • “Does filing the appeal create a stay?” and
  • “What are the tactical reasons for appealing the Law Judge?”
  • “What will the appeal cost?”

At the end of the presentation, the attendees will have a basic understanding of the appeals process, tactical aspects of appeals (stays), and the costs of the various types of appeals available.

Subject: New York, Workers’ Compensation Law, Appeals
Date Presented: February 20, 2017
Presenter(s): Declan Gourley, Esq. and Joseph Melchionne, Esq.
Run time: 16:05 Continue reading Video: Appeals of New York Workers’ Compensation Board Decisions

The Claimant’s Attorney Perspective – Third Fridays Podcast

Christian Sison welcomes guest attorney, Timothy Kane, to the third Episode of the podcast. Christian and Tim discuss Tim’s prior role as a claimant’s attorney in New York Workers’ Compensation cases and how that has helped him to be a zealous advocate for employers. The two of them then talk about using that information to stress aggressive investigation into claims, in preparation for litigation of several issues. After Tim plays “Guess the Outcome,” he and Christian conceptualize the difficulty of rebutting the presumption afforded to claimants pursuant to Section 21 of the New York Workers’ Compensation Law. Continue reading The Claimant’s Attorney Perspective – Third Fridays Podcast

Lois LLC Welcomes Angiola DiPopolo to New Jersey Workers’ Compensation Defense Practice

Today the Firm welcomes Angiola DiPopolo who joins the New Jersey Workers’ Compensation Defense Practice at Lois LLC. A seasoned litigator, Angiola brings nearly two decades of experience in defending employers and carriers in New Jersey workers’ compensation claims. Angiola’s prior experience includes defending public entities through third party administrators (NJIF), self-insureds and insurance carriers in all phases of litigation from inception through trial before the New Jersey Workers’ Compensation court including case management and strategy, depositions, settlement negotiations and preparation of motions.

False Statements Made in New York State Workers’ Compensation Claims Can Lead to Forfeiture of Right to Receive Future Benefits

Joseph Melchionne
Joseph Melchionne, Esq.

New York State workers’ compensation fraud may take many forms and result in a myriad of consequences.  WLC § 114(a) not only governs circumstances of fraud but also describes significant penalties for those who are caught committing fraud such as a permanent ban on their eligibility to receive indemnity benefits and/or a permanency award.

WCL § 114(a)  directs that a claimant is to be penalized if he or she “knowingly makes a false statement or representation as to a material fact . . . .” in furtherance of receiving workers’ compensation benefits. This mandatory penalty is a forfeiture of all compensation that is directly attributed to the false statement.  Workers’ compensation fraud penalties only apply to indemnity benefits and permanency awards, paid medical benefits are not subject to forfeiture in a fraud determination. See Jacob v. New York City Transit Auth., 26 A.D.3d 631, 809 N.Y.S.2d 618 (App. Div. 2006); Matter of Robinson v. Interstate Natl. Dealer, 50 A.D.3d 1325 (3rd Dept. 2008).

Pursuant to WCL § 114(a):

“If for the purpose of obtaining compensation pursuant to section fifteen of this chapter, or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation.”
Continue reading False Statements Made in New York State Workers’ Compensation Claims Can Lead to Forfeiture of Right to Receive Future Benefits

Overcoming New York’s Legal Presumption that the Injury Arose Out of the Employment with a Personal Risk Defense

Every New York Workers’ Compensation claimant is availed five (5) presumptions.

  1. An accident which occurs in the course of the employment is presumed to arise out of the employment;
  2. “Notice” is presumed to have been received by the employer;
  3. Benefits are denied for intentional injury;
  4. Benefits are denied for injuries solely caused by intoxication; and
  5. Claimant’s medical reports are accepted prima facie by the WCB.

This article focuses on the first presumption, which holds that an accident which occurs during working hours is presumed to arise out of the employment.

The first presumption.

The first presumption is that an accident which occurs in the course of employment is presumed to arise out of the employment. This is a temporal/substantive link: if the injury occurs at work and during the work day, it is presumed the injury arose out of and in the course of employment.

If the activity the claimant was undertaking at the time of the accident was purely personal it would not be within the scope of the employment and the presumption would be rebutted.

Assaults at work – challenging the presumption.

Injuries from purely personal acts are not compensable. This is the “personal risk doctrine.” Activities which demonstrate a purely personal pursuit, do not fall within the scope of employment. An assault occurring at work is accordingly presumed to have also arisen out of the employment, a presumption that can be rebutted with substantial evidence that the assault was motivated by purely personal animosity. See WCL § 21; Matter of Rosen v. First Manhattan Bank, 84 N.Y.2d 856, 857 (1994); Matter of Turner v. F.J.C. Sec. Servs., 760 N.Y.S.2d 602 (2003).

In looking at cases where the employer raises this defense, the WCB will consider how work-related the activity was that led to the injury. Continue reading Overcoming New York’s Legal Presumption that the Injury Arose Out of the Employment with a Personal Risk Defense

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