We all are aware of the significance in setting a claimant’s average weekly wage. It has both a current effect and future effect. The average weekly wage results in current exposure when a Law Judge awards temporary disability benefits for causally-related lost time. It also forms the foundation of future exposure when parties litigate permanency or analyze the claim for settlement purposes.
Most often, the calculation of average weekly wage is simple mathematics: gross wages divided by fifty-two (52) weeks. Also common is the employee who did not work for a full calendar year prior to the accident, which entitles him or her to seek the average weekly wage of a similar worker. Seasonal employees present a different scenario for the calculation of average weekly wage, and based on a recent Board Panel Decision, all parties still require some clarity on the issue. Continue reading Calculating Average Weekly Wage for Seasonal Employees in New York→
Opioids is one of the hottest topics in the workers’ compensation arena. As a result of the epidemic across the country, the New York Workers’ Compensation Board has implemented new procedures to address opioids. You can locate our recent articles about opioid abuse, requesting a weaning program with the assistance of the Non-Acute Pain Medical Treatment Guidelines, and the recent Board Bulletin released by the Workers’ Compensation Board that reiterates a growing need to stop the proliferation of long-term opioid use. Continue reading Emergency Room Opioids?→
Today, November 18, 2016, is the third Friday of the month. In New York Workers’ Compensation, it is the only non-holiday in which no hearings are held through the entire State. So on that day, we present to you Third Fridays, a legal podcast – also available in video format – that aims to discuss high-level issues in Workers’ Compensation. I will host and moderate a discussion involving a special guest, and our hope is that you gain insight into practical and procedural routes to close your cases.
The podcast’s debut episode will solely be about opioids, a far-reaching problem experienced by all states. If you have a question about opioids, submit it via email to me at firstname.lastname@example.org! We will incorporate your question into the discussion.
Third Fridays will premiere on December 16, 2016. Before you take your extended holiday vacation, give it a listen or a viewing. You will also learn how to become eligible to win a free iPad mini!
Those familiar with subrogation, liens on third-party lawsuits, and Section 29 of the New York Workers’ Compensation Law may be able to recite the holdings of Matter of Kelly v. State Ins. Fund. and Burns v. Varrialeby heart. For a quick review, the Kelly case dealt with a widow whose husband had passed away in the course of employment. The Court of Appeals held that an insurance carrier’s equitable share of the litigation costs and disbursements incurred by a claimant must be apportioned based on the total benefit received. Inclusive in this total benefit is the relief obtained by the Workers’ Compensation carrier of its obligation to make future benefit payments to the claimant. However, and most importantly, the Court of Appeals noted that when the carrier’s future benefit is “speculative,” it would be inappropriate to apportion attorney’s fees based on such benefit.
The Burns case highlighted a situation where the future benefit is speculative. Unlike the situation in Kelly, when the death of the employee can result in a fixed rate payable to the dependent spouse, the Burns employee was awarded a reduced earnings weekly benefit, based on having sustained a permanent partial disability. Because the reduced earnings could fluctuate based on future wages earned by the employee, the Court of Appeals ruled that the Workers’ Compensation insurance carrier’s future benefit was indeed speculative. Therefore, the carrier was entitled to a reimbursement of its Section 29 lien, after deducting its pro-rated share of the employee’s third-party litigation costs and expenses. Continue reading New York Subrogation Case Law Upheld by Third Department→