Author: Jones Jones

New York’s Second Department recently issued a decision, Lennon v 56th & Park (NY) Owner, LLC, regarding collateral estoppel in workers’ compensation and personal injury suits. This decision illustrates the importance of a unified workers’ compensation and general liability defense.

The Second Department held that a plaintiff’s general liability claim may be barred by the doctrine of collateral estoppel when there is a prior determination from an administrative board involving the same subject matter. The doctrine of collateral estoppel precludes a party from re-litigating an issue clearly raised in a prior action and decided against that party. The collateral estoppel doctrine gives conclusive effect to prior determinations when two conditions are met: there must be an identity of issue, which has necessarily been decided in the prior action, and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling. The “full and fair opportunity” factors considered include the nature of the forum and the importance of the claim in the prior proceeding, the incentive and initiative to litigate, the actual extent of the prior proceeding, the competence and expertise of counsel, the availability of new evidence, and the foreseeability of future litigation.

In Lennon v 56th & Park (NY) Owner, LLC, the claimant alleged that he was injured while working at a construction site. A hearing was held before a Workers’ Compensation Law Judge, and the claimant was represented by an attorney. The claimant and employer witnesses were sworn in and testified under oath. The Law Judge ultimately held that the claim was denied.

Subsequently, in the general liability claim, the defendants argued that the Workers’ Compensation Board’s finding that the underlying event was not causally related to the claim effectively collaterally estopped the plaintiff from re-asserting the same claim before the Supreme Court. The Supreme Court agreed and granted summary judgment.

The plaintiff appealed the Supreme Court decision. The Second Department ultimately held that the findings in the workers’ compensation matter were material and pivotal to the core viability of any personal injury action that the plaintiff could pursue in a court at law regarding the same incident. The Second Department held that the Supreme Court’s award of summary judgment was proper.

This Second Department decision reinforces how closely the insured, the general liability defense attorney, and the workers’ compensation defense attorney must work together in preparation for the workers’ compensation trial. The thorough review of the investigative materials, witness statements, and initial medical records, as well as discussion of the claim with the witnesses and with general liability defense counsel, are crucial to defending workers’ compensation claims, and may ultimately be used to attain summary judgement in the general liability action.  Jones Jones LLC attorneys are experts at litigating the complexities of workers’ compensation and general liability litigation and will work to mitigate both claims for your caseload.  Contact us today at clientservices@jonesjonesllc.com to discuss an integrative litigation plan.  

We are excited to announce a major win secured by Jones Jones  LLC Attorney Samantha Sokoloff.  This win highlights:

• The aggressive approach needed on occupational disease claims that are filed after a regular retirement has been taken by a claimant;
• The need for a knowledgeable and aggressive  litigation plan on potential high dollar schedule loss of use claims; and
• The importance of bringing to the Board’s attention that the burden of demonstrating a link between an alleged condition and distinctive feature of employment is on solely on the claimant.

Attorney Samantha Sokoloff recently litigated a New York State workers’ compensation claim involving an retired public transit worker.  This particular claimant had worked with a transit authority for almost 30 years in a somewhat physically demanding job.  After the claimant took a regular retirement, he then proceeded to file a workers’ compensation claim alleging occupational disease to the legs, ankles, and feet.

With no witness available, Attorney Sokoloff was able to execute a stellar cross-examination of the claimant.  With this testimony, she was able to highlight to the Law Judge that the claimant had not lost any time from work prior to his retirement due to any pain or injury to any of the alleged body parts.  She was also able to have the claimant concede that he had not seen a doctor about these alleged conditions until after his regular retirement began and that he had a choice to take a disability type of retirement but declined to go that route. Attorney Sokoloff asked that claimant whether he had ever discussed the alleged physical injuries with his primary physician; to which he said he had not. Finally, the claimant was unable to articulate as to what his job duties with his employer was and how he was unable to perform them anymore.

Upon summations, Attorney Sokoloff argued to the Law Judge that the claimant had failed to demonstrate a recognizable link between his condition and a distinctive feature of his employment.  Additionally, the testimony of the claimant’s treating doctor was also highlighted during summations.  The doctor had failed to know any specifics about the claimant’s work history or medical treatment history.  The Law Judge disallowed the claim entirely based upon the winning litigation strategy of Attorney Sokoloff.

This is an important win to consider as there has been an increasing trend within the workers’ compensation system of retirees seeking numerous and high value schedule loss of use awards for occupational diseases. Many of these claims involve no treatment nor notice of any such injury or condition until after the claimant has successfully retired from employment.  Additionally, many of these claims involve a number of body parts that are amendable to a schedule loss of use finding for permanency.  This could equate to a large lump sum award to the claimant post retirement when there is simply a lack of evidence to support any such claim up until their retirement is confirmed.  Due to the high value of these potential claims, it is important to defend post-retiree occupational disease claims with an aggressive approach.  The attorneys of Jones Jones LLC are prepared to navigate these retirement and occupational disease claims with you every step of the way.  The same aggressive and detailed approach that Attorney Sokoloff applied on this case will be applied to your caseload as well.

Contact us at clientservices@jonesjonesllc.com today to set up a consultation.