Category Archives: New York

Video: Appeals of New York Workers’ Compensation Board Decisions

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.

Subject: New York, Workers’ Compensation Law, Appeals
Date Presented: February 20, 2017
Presenter(s): Declan Gourley, Esq. and Joseph Melchionne, Esq.
Run time: 16:05 Continue reading Video: Appeals of New York Workers’ Compensation Board Decisions

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

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?

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

Video: Medicare Secondary Payer Issues in New York Workers’ Compensation Claims

Here is the post-webinar video of our most recent presentation, “Medicare Secondary Payer Issues in New York Workers’ Compensation Claims” from our New York workers’ compensation webinar training series. Attorneys Declan Gourley and Greg Lois discusses Medicare Secondary Payer exposure and how it effects the settlement via Section 32 in New York workers compensation matters.

Subject: New York, Workers’ Compensation Law, Medicare Secondary Payer, Conditional Payments, Section 32
Date Presented: January 16, 2017
Presenter(s): Declan Gourley, Esq. and Greg Lois, Esq.
Run time: 21:46 Continue reading Video: Medicare Secondary Payer Issues in New York Workers’ Compensation Claims