Tashia Rasul is an Partner at Lois LLC where she defends employers and carriers in New York workers’ compensation claims. Tashia chairs the Firm's Diversity Committee and is active in the national Alliance of Women in Workers' Compensation. She can be reached directly at firstname.lastname@example.org or 201-880-7213.
The employer or insurance carrier is responsible for all medically necessary treatment to the claimant, and payment of same, when a claim has been accepted or established by the Board as compensable. See NYCRR Section 325-1.25. When treatment is not medically necessary, the carrier can object to same using the Board-C-8.1 forms. However, if the objection is improper, the carrier will likely be found liable for significant unnecessary medical costs, and therefore face increased expenses.
The Workers’ Compensation “Bar” on Civil Exposure.
In New York, an employer’s liability for a work-related injury is generally limited to payment of wage loss (indemnity) and medical benefits under the Workers’ Compensation Law (WCL). The WCL prevents an injured worker from suing his employer for his work-related injury, except in cases where the worker sustained a grave injury. It would seem to make sense that a worker who sustained a grave injury would be able to recover more than just Workers’ Compensation benefits given the seriousness of his injury. However, in order for this to happen, there must be a third-party action, wherein a third-party tortfeasor is being sued, and this third-party tortfeasor seeks contribution or indemnification from the employer. Otherwise, if there is no third-party action, the worker cannot directly sue his employer, even if he sustained grave injuries. Continue reading Grave Injuries: When A New York Employee Can Recover From His Employer Outside of Workers’ Compensation→
Section 25-a of the New York Workers Compensation Law (WCL) created a Special Fund for Reopened Cases (“Special Fund”) to administer and pay indemnity and medical benefits in “stale claims” – that is, old, closed claims that were being reopened. The purpose of the Special Fund was to relieve employers and carriers of the liability of these stale claims. The Special Fund was created with the intent of protecting both the claimant and the employers/ carriers, to circumvent the possibility of inadequate reserves to pay out claims, and to ensure that claimants continue to receive the benefits they are entitled to.
The Special Fund was funded by assessments against employers and their carriers, as well as self-insured employers. Employers with an insurance policy were assessed based on their premiums, and self-insured employers and those insured through the State Insurance Fund were assessed based on indemnity payments made. If the funding in the Special Fund fell below a certain amount, the assessments would be adjusted accordingly to ensure there is always enough money in the Special Fund. Simply put, employers and carriers were required to put money in the Special Fund for use when a stale claim is reopened in the future, and the Special Fund would be responsible for handling the reopened claim.
Apportionment is simply the allocation of liability between or amongst multiple employers/ carriers. While a worthwhile mechanism for reducing exposure, the issue of apportionment is oftentimes underdeveloped, and therefore appears to not be an effective mechanism. Apportionment applies to cases where a claimant has a prior or preexisting injury, but its applicability in a particular case is a fact determination to be made by the Workers’ Compensation Board. Apportionment in claims established for a specific accident is addressed differently than in claims established for an occupational injury.
For apportionment to be applied in cases established for a specific accident (e.g. claimant tripped and fractured his ankle on a specific date), the claimant’s prior condition must constitute a disability in a compensation sense.” See Krebs v. Town of Ithaca, 293 A.D.2d 883. Now, what exactly does this mean? The Court, in Krebs, noted that “where the prior condition was not the result of a compensable injury and the claimant is able to effectively perform his or her job despite the preexisting condition, apportionment is not warranted.” Id. This was further explained in Bruno v. Kelly Temp Service, wherein the Court explained that “apportionment is not appropriate where the claimant’s prior condition was not the result of a compensable injury and such claimant was fully employed and able to effectively perform his or her duties despite the non-compensable preexisting condition.” 301 A.D.2d 730. Simply put, the prior condition must be compensable (work-related); and, if not compensable, it must be disabling (and not merely symptomatic) in order for apportionment to apply. Continue reading Apportionment: How It Can Reduce Exposure in Certain Workers’ Compensation Claims→
The impact of the Patient Protection and Affordable Care Act (PPACA) on workers’ compensation in New York (and across the nation) is unknown. (See my previous article, “A Future Unknown: The Patient Protection and Affordable Care Act (PPACA) and its Impact on Workers’ Compensation” for a summary of the predicted effects). However, the impact of the Massachusetts 2006 healthcare reform on the state’s workers’ compensation industry could be an indicator of what is to come for New York. Continue reading Affordable Care Act: What New York Could Expect→