Category Archives: Defenses

Which Defenses Applies? Overview of Common Defenses in New Jersey

Attorneys Karen Vincent and Michael Gervolino cover the fundamentals or challenging the the basic presumptions relied upon by the petitioner in establishing their case. They discuss some little used (but available) defenses, such as the intoxication defense. At the end of the presentation attendees will have a basic understanding of various common defenses under the New Jersey Workers’ Compensation Act and case law.

Subject: New Jersey, Workers’ Compensation Law, Second Injury Fund
Date Presented: May 22, 2017
Presenter(s): Karen Vincent, Esq. and Michael Gervolino, Esq.
Run time: 20:54 Continue reading Which Defenses Applies? Overview of Common Defenses in New Jersey

How to: Reducing Exposure by Offering Accommodated Positions in New York

We can stop paying temporary disability benefits in New York when:

  • The claimant has reached “maximum medical improvement” and is discharged from further care.
  • The claimant has voluntarily withdrawn from the labor market.
  • The claimant has refused a light duty offer that complies with the treating doctor’s work restrictions.

​Why seek a return to work in a light duty capacity?

Employees who do not return to work (transitional or otherwise) within 6 months of the date of loss have a less than 50% chance of returning to gainful employment. Injured workers who remain out of work for more than one year but less than two years have a 25% chance of returning to employment. Workers who have lost two or more years to injury have less than a 1% chance of returning to any type of employment. This drives up claims costs and is bad for the injured worker.

The Workers’ Compensation Board envisions a process in which an employer “creates” a light duty job tailored to each injured worker. In reality, most employers have a limited amount of potential light duty employment. In those cases, the goal of the claims professional is to get a clear statement of the claimant’s work ability from the treating physician and then to issue an appropriate offer letter to the claimant. Continue reading How to: Reducing Exposure by Offering Accommodated Positions in New York

Video: Which Defense Applies? Common Defenses in New York

Attorneys Tim Kane and Greg Lois cover the fundamentals on challenging the the basic presumptions relied upon by the claimant in establishing their case, disputing new “consequential” body parts, and raising all applicable defense. We discuss some little used (but available) defenses, such as the intoxication defense. At the end of the presentation attendees will have a basic understanding of various common defenses under the New York Workers’ Compensation Law.

Subject: New York, Workers’ Compensation Law, Intoxication, Idiopathics, Consequential, Notice, Statute of Limitations, Defenses, Employer-Employee
Date Presented: May 15, 2017
Presenter(s): Greg Lois, Esq.
Run time: 29:26 Continue reading Video: Which Defense Applies? Common Defenses in New York

Video: The Defense of Lack of Employment in New Jersey

Here is the post-webinar video from our most recent presentation, “Is the Petitioner an Employee?” from our New Jersey workers’ compensation webinar training series.

The webinar was presented live by Lois LLC partner Joe Jones and associate Angiola DiPopolo and audience questions are addressed such as:

  • “How is ’employment’ defined in New Jersey?”
  • “How is the defense of ‘Lack of Employment’ raised?”
  • “How do the courts define an ‘independent contractor’ in New Jersey” and
  • “What about ‘undocumented’ or illegal workers – can they get benefits as a petitioner in a New Jersey workers’ compensation claim?”

Subject: New Jersey, Workers’ Compensation Law, Second Injury Fund
Date Presented: April 24, 2017
Presenter(s): Joe Jones, Esq. and Angiola DiPopolo, Esq.
Run time: 20:01 Continue reading Video: The Defense of Lack of Employment in New Jersey

Video: Is the Claimant an Employee?

Is a minor covered by New York’s Workers’ Compensation law? How about undocumented workers? What are the rules for coverage for independent contractors? Attorney Greg Lois presents a webinar on the defense of “Lack of Employment” in New York.

Subject: New York, Workers’ Compensation Law, Lack of Employment, Defenses, Employer-Employee
Date Presented: April 17, 2017
Presenter(s): Greg Lois, Esq.
Run time: 23:10 Continue reading Video: Is the Claimant an Employee?

Explainer: The “Going and Coming Rule” in New York

Greg Lois
Gregory Lois, Esq.
Employees are not deemed to be in the course of their employment when they are traveling to- and from-work. This rule of thumb is referred to as the “going-and-coming rule” or the “portal-to-portal” rule. Basically, there is no door-to-door coverage: the risk of travel to and from work is not distinctly related to any specific employment, and so is generally considered not arising out of and in the course of any particular employment.

​Exceptions to the Going-and-Coming Rule

Of course, there are exceptions. For example:

  • Outside workers – like traveling salesmen – who do not work at a fixed location and are required to travel between work locations. (See Bennett v. Marine Works, 273 N.Y. 429 [1937]).
  • Special errands – being sent by the employer to do something specific (and work-related). (See Neacosia v. New York Power Auth., 85 N.Y.2d 471 [1995]).
  • Paid travel expenses – where an employee is paid to use their own car for work-related travel, an injury occurring during that travel may be found to be compensable.
  • Some home office situations – the WCB recognizes that it is not unusual for management and professional workers to have home office with links to the employer’s office, making injuries in those locations compensable.
  • Entering or leaving the employer’s premises – in particular, injuries sustained while the employee is entering the worksite have been held compensable where the entrance to the worksite posed a special hazard. (See Bigley v. J & R Music Elec., 702 N.Y.S.2d 474 [3d Dep’t 2000].)

Continue reading Explainer: The “Going and Coming Rule” in New York