The New York Workers’ Compensation Board collects $3 Million per year in procedural penalties alone. This is a staggering figure – amounting to approximately $300 in penalty for each new case accepted by the WCB. New York is a form-driven jurisdiction, and most common penalties arise from the late filing of required boilerplate forms.
The Workers’ Compensation Law is a minefield of penalties, fines, and criminal complications for the unwary. There are different penalty considerations for employers, claimants, insurers, and even attorneys.
Lois LLC recently presented a webinar designed to help the attendee answer the following questions:
“What are the most common reasons employers/carriers are penalized in New York?”
“What are the exposures for non-coverage in New York?”
What other activity can draw a penalty, such as illegal employment?”
“What do I do about a penalty?”
Attorney Greg Lois covers the fundamentals and at the end of the presentation, the attendees will have a basic understanding of New York penalties and exposures in workers’ compensation cases.
We all are aware of the significance in setting a claimant’s average weekly wage. It has both a current effect and future effect. The average weekly wage results in current exposure when a Law Judge awards temporary disability benefits for causally-related lost time. It also forms the foundation of future exposure when parties litigate permanency or analyze the claim for settlement purposes.
Most often, the calculation of average weekly wage is simple mathematics: gross wages divided by fifty-two (52) weeks. Also common is the employee who did not work for a full calendar year prior to the accident, which entitles him or her to seek the average weekly wage of a similar worker. Seasonal employees present a different scenario for the calculation of average weekly wage, and based on a recent Board Panel Decision, all parties still require some clarity on the issue. Continue reading Calculating Average Weekly Wage for Seasonal Employees in New York→
Two attorneys cover the fundamentals of appeals from Board decisions. Presenters Declan Gourley and Joseph Melchionne have years of experience representing employers and carriers before the Board. The presentation is designed to help the attendee answer the following questions:
“Should we appeal the Law Judge’s Decision in a workers’ compensation claim?” and
“Does filing the appeal create a stay?” and
“What are the tactical reasons for appealing the Law Judge?”
“What will the appeal cost?”
At the end of the presentation, the attendees will have a basic understanding of the appeals process, tactical aspects of appeals (stays), and the costs of the various types of appeals available.
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.
Every New York Workers’ Compensation claimant is availed five (5) presumptions.
An accident which occurs in the course of the employment is presumed to arise out of the employment;
“Notice” is presumed to have been received by the employer;
Benefits are denied for intentional injury;
Benefits are denied for injuries solely caused by intoxication; and
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 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.