Explainer: Permanency Benefits in New York

The New York Workers’ Compensation Law allows for four types of benefits to be provided to injured workers: medical treatment, lost time wage replacement, death benefits, and permanent disability benefits. This article discusses the three types of permanent disability benefit available to the injured worker:

  • Scheduled loss of use.
  • Classification/LWEC
  • Permanent Total Disability.

The employer is exposed for permanent disabilities which the claimant may prove. These three types of disability are compensated at different rates.

Scheduled Loss of Use.

Values come from tables which establish the compensation for loss of limbs, vision, and hearing in terms of ‘weeks of compensation.’ Scheduled loss is the percent of those weeks equal to the percentage loss of function of the member (for example a 10% schedule use loss of the arm equates to 31.2 weeks of compensation. The award is the number of weeks of compensation according to the schedule multiplied buy the workers’ maximum rate (2/3rd of Average Weekly Wages subject to the maximum and minimum rates in place according to the year of the accident). Prior payments of compensation and wages (all wages, not just those paid at the compensation rate) are deducted from the award. Continue reading Explainer: Permanency Benefits in New York

Settlements in New Jersey: What gets deducted?

What does the petitioner have to pay back when a settlement is reached in a New Jersey workers’ compensation case?

Has to be paid back: State Disability

Any petitioner’s award is offset by any amounts paid to the petitioner by State Disability as provided by N.J.S.A. 34:15-57.1. Temporary disability paid by the state for injuries later deemed compensable or settled via Section 20 must be reimbursed to the state. Before settling a case, counsel should be expected to investigate all outstanding liens. The New Jersey workers’ compensation law judge can provide the parties with the amount of the State temporary disability lien at the time of settlement.

Has to be paid back: Health Insurance

By the very terms of the Act, workers’ compensation insurance is primary to medical insurance. Therefore, any amounts paid on behalf of the petitioner for treatment deemed by a judge “reasonable and necessary” to cure the petitioner of the effects of the work-related accident, can be collected by the health insurer at the time of settlement, or later. Recent case law instructs that even matters disposed of pursuant to Section 20 may not extinguish a health insurer’s lien. Continue reading Settlements in New Jersey: What gets deducted?

Is there a $50,000.00 “Carve-Out” to a Workers’ Compensation Section 29 Lien When the Underlying Accident Occurs Outside the State of New York?

When an accident occurs outside the State of New York the $50,000.00 “carve-out” under New York Insurance Law §§ 5102 and 5104 does not apply to a Workers’ Compensation Law Section 29 lien.

The seminal case setting forth this bright-line rule is McHenry v. State Ins. Fund, 236 A.D.2d 89, 666 N.Y.S.2d 221 (3rd Dept. 1997). The Court in McHenry held that “absent an express statutory provision, a workers’ compensation carrier has the ‘inviolable’ right to a lien against the proceeds of ‘any recovery obtained by a compensation claimant in a third-party action.” Id. at 90-91 (citing Matter of Granger v. Urda, 44 N.Y.2d 91, 96 (1978)). The Court further stated that by the express terms of Insurance Law § 5104 itself the statute applies only to injuries stemming from the negligent operation of a motor vehicle in the State of New York. Id. at 91. Insurance Law § 5104(a) is not given “extraterritorial effect” even in situations where all parties are New York residents and the accident merely occurred in another state. Id. (citing Morgan v. Bisorni, 100 A.D.2d 956, 475 N.Y.S.2d 98 (1984)).

Subsequent decisions have likewise enforced this ruling even though the peripheral facts of the case may differ. (See discussion below of Ofori v. Green, 74 A.D.3d 474, 901 N.Y.S.2d 835 (1st Dept. 2010)). Continue reading Is there a $50,000.00 “Carve-Out” to a Workers’ Compensation Section 29 Lien When the Underlying Accident Occurs Outside the State of New York?

Explainer: Appeals of New Jersey Workers’ Compensation Decisions

Decisions of a Workers’ Compensation Judge are appealable directly to the New Jersey Appellate Court. An appeal of the Workers’ Compensation Judge’s opinion must be made within 45 days of the entry of the final order. How does the appeals court rule where there was a disagreement between the doctors who testified in the workers’ compensation case?

The Scope of Review.

The scope of review by the Appellate Division is “the same as that on appeal in any non-jury case, that is, whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.” Close v. Kordulak Bros., 44 N.J. 589, 599 (1965), quoting State v. Johnson, 42 N.J. 146, 162 (1964).

Thus, the findings of fact made by a judge of compensation “are entitled to substantial deference.” Ramos v. M & F Fashions, Inc., 154 N.J. 583, 294 (1998). But how does the appeals court review cases where there was a significant split – a disagreement – between the doctors who testified in the workers’ compensation case? How does the Appellate Division review a case where the Trial Judge agrees with one side’s doctors over the other? Continue reading Explainer: Appeals of New Jersey Workers’ Compensation Decisions

Explainer: Wage Replacement Benefits in New York

This articles provides a basic overview of the wage replacement benefit – temporary disability – in New York workers’ compensation claims. A workers’ compensation claimant is entitled to medical care and wage replacement. If the worker is killed by the accident, his dependents may be eligible for death benefits.

As set forth more completely in my book, when an employee sustains are injury medical benefits must be provided immediately. WCL § 13. There is no waiting period before medical benefits must be provided. Wage replacement (as discussed below) has a waiting period before benefits must be provided. WCL § 12.

​Wage Compensation: Cash Benefits.

Cash benefits are not paid for the first seven days of the disability, unless it extends beyond fourteen days. In that case, the worker may receive cash benefits from the first work day off the job. Continue reading Explainer: Wage Replacement Benefits 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

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