Christian Sison welcomes guest attorney, Timothy Kane, to the third Episode of the podcast. Christian and Tim discuss Tim’s prior role as a claimant’s attorney in New York Workers’ Compensation cases and how that has helped him to be a zealous advocate for employers. The two of them then talk about using that information to stress aggressive investigation into claims, in preparation for litigation of several issues. After Tim plays “Guess the Outcome,” he and Christian conceptualize the difficulty of rebutting the presumption afforded to claimants pursuant to Section 21 of the New York Workers’ Compensation Law. Continue reading The Claimant’s Attorney Perspective – Third Fridays Podcast→
Today the Firm welcomes Angiola DiPopolo who joins the New Jersey Workers’ Compensation Defense Practice at Lois LLC. A seasoned litigator, Angiola brings nearly two decades of experience in defending employers and carriers in New Jersey workers’ compensation claims. Angiola’s prior experience includes defending public entities through third party administrators (NJIF), self-insureds and insurance carriers in all phases of litigation from inception through trial before the New Jersey Workers’ Compensation court including case management and strategy, depositions, settlement negotiations and preparation of motions.
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).
Here is the post-webinar video from our most recent presentation, “Medicare Secondary Payer Issues in New Jersey Workers’ Compensation Cases” from our New Jersey workers’ compensation webinar training series.