Joseph Melchionne is an associate attorney at Lois LLC where he defends employers and carrier in New York workers’ compensation claims. Joseph can be reached directly at email@example.com or 201-880-7213.
As has been widely publicized, in April the New York State Senate passed a $153 billion state budget for 2017-2018 which included numerous reforms and changes to the state’s Workers’ Compensation laws.
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.
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.
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.
If a claimant in a New York State Workers’ Compensation case is receiving workers’ compensation benefits for a partial disability (whether permanent or temporary) that claimant has a persistent obligation to actively search for work that is within his or her medical restrictions as dictated by the doctors who are treating him or her. In other words, the claimant has to demonstrate an attachment to the labor market. If the claimant has voluntarily withdrawn from the work force and cannot demonstrate an attachment to the labor market his or her benefits can been terminated or suspended.
The burden of proof regarding this defense rests upon the employer to show that the claimant receiving benefits has voluntarily withdrawn from the labor market. To do so, the employer must compel the claimant to :
Demonstrate that they have looked for work in many places within their restrictions; and
Provide documentary evidence of an active participation in at least one New York State Department of Labor re-employment service as defined by case law.
The successful defense of Workers’ Compensation claims in the state of New York requires practitioners to utilize a myriad of different skills, strategies and legal tools. One of the most important elements of any successful claim defense will require the production of one or more Independent Medical Evaluations (IME) throughout the pendency of the claim.
The IME is a medical examination arranged and scheduled by the carrier or self-insured as a means to obtain a medical opinion with regard to the claimant’s degree of disability, permanent impairment, ability to work, and/or the medical necessity of a requested medical treatment. Such opinions will be critical to rebut or challenge the findings contained in the medical reports submitted by the claimant’s treating doctors. Although not common, claimant’s can also obtain IMEs and it is becoming more commonplace in New York for claimant’s to obtain an IME opinion for a Schedule Loss of Use opinion at permanency.