Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims.
Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide.
Greg can be reached at 201-880-7213 or email@example.com
Every New York Workers’ Compensation claimant is availed five (5) presumptions.
An accident which occurs in the course of the employment is presumed to arise out of the employment;
“Notice” is presumed to have been received by the employer;
Benefits are denied for intentional injury;
Benefits are denied for injuries solely caused by intoxication; and
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).
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.” Continue reading Explainer: The Independent Contractor Defense in New York→
An 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.
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?
Appeals from workers’ compensation courts are directly to the New Jersey Superior Court Appellate Division. R. 2:2-3. The standard for review of a decision of a Judge of Compensation in most instances is governed by Close v. Kordulak Bros., 44 N.J. 589 (1965). In Kordulak, the Supreme Court held that the standard of review for decision rendered by the Division of Workers’ Compensation is:
whether the findings made could reaosnable have been reached on sufficient credible evidence present int he record, considering the proofs as whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and with due regard also to the agency’s expertise where such expertise is a pertinent factor.”