Category Archives: Defenses

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

Overcoming New York’s Legal Presumption that the Injury Arose Out of the Employment with a Personal Risk Defense

Every New York Workers’ Compensation claimant is availed five (5) presumptions.

  1. An accident which occurs in the course of the employment is presumed to arise out of the employment;
  2. “Notice” is presumed to have been received by the employer;
  3. Benefits are denied for intentional injury;
  4. Benefits are denied for injuries solely caused by intoxication; and
  5. 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).

In looking at cases where the employer raises this defense, the WCB will consider how work-related the activity was that led to the injury. Continue reading Overcoming New York’s Legal Presumption that the Injury Arose Out of the Employment with a Personal Risk Defense

Explainer: The Independent Contractor Defense in New York

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

Understanding the Notice and Statute of Limitations Defenses in New York

Greg LoisAn 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.

If the notice is delivered in person, notice must be handed to a partner (if it is a partnership) or someone authorized to receive process (if the employer is a corporation). WCL §18. Continue reading Understanding the Notice and Statute of Limitations Defenses in New York

Are illegal aliens entitled to workers’ compensation benefits in New York?

Greg Lois
Gregory Lois, Esq.

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?

Resident aliens.

Aliens who are in covered employment in New York can be entitled to workers’ compensation benefits when injured in the course of that employment. Mizugami v. Sharin West Overseas, Inc., 599 N.Y.S.2d 480 (1993) and WCL §§ 16, 17. Continue reading Are illegal aliens entitled to workers’ compensation benefits in New York?

Is this Workers’ Compensation Claim Fraud in New York?

  1. Claimant denies having gainful employment while collecting temporary disability benefits. He actually started up a small business, but the business lost money.
  2. Claimant says he applied for jobs at 34 different businesses while seeking benefits. The employer performed its own follow-up search and learned he applied for only two (2) jobs.New York Workers' Compensation law 2017
  3. Claimant lying about his physical restrictions to our IME doctor
  4. Concealing volunteer work while “too disabled” to do your regular job?
  5. Caught selling street drugs while collecting workers’ compensation benefits?
  6. Claimant first admits to working, but her attorneys later state she isn’t. Claimant later found working seasonally while collecting benefits.
    Continue reading Is this Workers’ Compensation Claim Fraud in New York?