All posts by Joseph Melchionne

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 jmelchionne@lois-llc.com or 201-880-7213.

New York Workers’ Compensation Reform Impact on Gaming, Thoroughbred, and Breeding Industries

Joseph MelchionneAs 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.

The most publicized changes to the existing law have been new reforms that ensure that significantly injured workers have the right to be considered for lifetime benefits, new prescription drug formularies, and the overhaul of the New York State Medical Treatment Guidelines. The aforementioned changes have obscured less obvious or publicized provisions such as changes to the gaming, thoroughbred, and breeding industries in the state. Continue reading New York Workers’ Compensation Reform Impact on Gaming, Thoroughbred, and Breeding Industries

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

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?

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

When Does Retirement Constitute Voluntary Withdrawal From the Labor Market?

Joseph Melchionne
Joseph Melchionne, Esq.

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.

Continue reading When Does Retirement Constitute Voluntary Withdrawal From the Labor Market?

The Independent Medical Evaluation (IME): Practical Considerations

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.

Continue reading The Independent Medical Evaluation (IME): Practical Considerations