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Major Win Alert: Jones Jones Wins NYS Appellate Reversal of $280k SLU Award

Attorney Katherine Caracappa secured a major win for a Jones Jones LLC client before the New York State Appellate Division- Third Department on March 10, 2022.

The case involved a transportation worker with an established occupational disease claim for injury to the elbows, ankles, knees, and wrists. The claimant’s treating doctor submitted medical evidence finding that the claimant was permanently disabled and had reached maximum medical improvement. The doctor ultimately found the claimant presented with 25% schedule loss of use of both hands, 20% schedule loss of use of both legs, and 20% schedule loss of use of both ankles.

While the self-insured employer was precluded from obtaining an independent medical examination on schedule loss of use, the attorneys at Jones Jones LLC did cross-examine the claimant’s treating provider and attacked his opinion on schedule loss of use. During litigation, the following arguments were highlighted:

  • That the issue of permanency was premature due to the fact that the claimant had not yet finished treatment;
  • The doctor who gave the schedule loss of use opinion failed to review all medical records and was therefore lacking credibility;
  • The schedule loss of use determination by the doctor did not conform with the guidelines on permanency; and
  • The findings of permanency did not correlate with the claimant’s complaints of pain and physical limitations.

It was argued that awarding approximately a $280,000 schedule loss of use award for a case that concluded with no surgeries and was ultimately a soft-tissue injury only was outside the realm of appropriate assessment of the permanency guidelines as set forward by the Board itself.

The Law Judge found in favor of the claimant’s treating provider and the Board Panel ultimately upheld the doctor’s conclusions on schedule loss of use.Both the Law Judge and the Board appeared to make their decisions based on the lack of independent medical examination and thus did not review the arguments raised in response to the schedule loss of use finding.

Attorney Caracappa drafted an aggressive Appellant Brief attacking the fact that the Board did not entertain any of the issues and arguments raised on behalf of the self-insured employer during the course of litigation. The Third Department was compelled by Attorney Caracappa’s arguments and found, “The Board’s failure to specifically address the claims raised by the employer deprived the employer…of the opportunity to have the Board consider the merits of …issues that were properly preserved and precludes any meaningful review by this Court,” (See decision here).

The Third Department agreed with Attorney Caracappa’s arguments that the Board erred in not addressing the issues raised on our application for review of the Board’s decision and as such the Third Department rescinded the finding of schedule loss of use and sent the case back before the Board for resolution of the arguments raised by Jones Jones LLC.

Jones Jones LLC takes great pride in our Appellate Appeal department. We understand the detail and precision needed to execute a winning appeal to the higher courts. In addition, the litigation and review of claims involving high schedule loss of use awards also requires extra review and intricate knowledge of the permanency guidelines. Jones Jones LLC is very happy to announce this Appellate Division win that will assist other self-insured employers, carriers, and third-party administrators in their litigation on costly schedule loss of use awards.

Contact us today at clientservices@jonesjonesllc.com to discuss litigation planning on permanency cases and any questions you and team may have on the appeals process.

News Alert: NYS WCB Issues Updated Procedure on Special Fund Reimbursement & Establishment

On November 16 , 2021 the NYS Workers’ Compensation Board issued a bulletin outlining a variety of procedural updates regarding Special Funds and reimbursement.The main points of the Board’s announcement are as follows:

  • As of 12/1/21, the following forms are to be used for WCL 15-8 and WCL 14-6 reimbursement requests:
    • C-251N – Insurer’s Notification of Initial Request for Reimbursement
    • C-251.1-Insurer’s Request for Reimbursement of Medical Payments under 15-8
    • C-251.6- Insurer’s Request for Reconsideration of Reduction under 14-6 or 15-8
  • When it comes to seeking reimbursement under either statute, the Board advises that a response to the reimbursement request will be sent via email to the insured with an explanation of reductions. If the insurer wishes to dispute any reduction in reimbursement, they must email a C-251.6 form to specialfunds@wcb.ny.gov within 60 calendar days of the date marked on the C-251.Thereafter, a reconsideration will be emailed to the insurer. If, at that point, the insurer still disputes the reconsideration of reimbursement, the insurer may request a desk review by a Law Judge within 30 days by way of RFA-2.
  • The Board also issued guidance in regards to establishing any pending 15-8 claims. Once a case is close to a finding of permanency (on a case with a date of accident pre-dating 7/1/07); the Board advised that the insurer is to submit a one-page document to Special Funds Group at SFGmail@wcb.ny.gov. This one page document must list all documents filed in the Board’s electronic case folder that support establishment of 15-8, along with a one-sentence description as to the “material and substantial” nature of the claimant’s prior condition. Thereafter, the Special Funds will either voluntarily accept 15-8 or they will schedule a hearing on the issue.

As always, the attorneys of Jones Jones LLC are ready to assist you and your team in navigating Workers’ Compensation Board procedural updates. Please connect with us today at clientservices@jonesjonesllc.com should you wish to schedule time with a partner to discuss this, or any topic of your choosing.

News Alert: NYS WCB Issues Bulletin on 32s and Releases

On October 8, 2021 the NYS  Workers’ Compensation Board issued a bulletin in regards to Section 32 Agreements: https://content.govdelivery.com/accounts/NYWCB/bulletins/2f633a4.  The main points of the Board’s announcement are as follows:

  • The Board will disapprove a Section 32 Agreement if it becomes aware that as a condition of entering into the Section 32 Agreement, the parties entered into a separate agreement or contract that contains terms which are not included in the agreement submitted to the Board;
  • As of 12/6/21, all 32 Agreements must be accompanied by an affidavit (if signed by attorney) or affirmation (if signed by non-attorney) executed by the person who has signed the 32 Agreement on behalf of the carrier, self-insured employer, or TPA. This affidavit /affirmation will affirm, under penalty of perjury, that the agreement submitted to the Board contains all terms and conditions and that no separate agreement or contract has been entered into by the parties that are not reflected in the agreement submitted to the Board;
  • The Board will give “significant scrutiny” to any term in the Section 32 Agreement providing for a general release to all claims against the carrier, self-insured employer, or TPA.

What does this mean for your settlement program? If your insured, carrier, or self-insured employer wishes to move forward with a Section 32 agreement along with any other agreement, such as a release- all terms must be included within the language of the Section 32 Agreement.  Please contact us at clientservices@jonesjonesllc.com to discuss the implications of this Board bulletin and how it may affect how your Section 32 Agreements are written and their subsequent review by the Board.  As always, the attorneys of Jones Jones LLC look forward to working with you and your team to navigate your settlement program towards great success.

Workers’ Compensation & General Liability: The Power of an Integrative Litigation Approach

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.  

Our Loss Transfer Department Passes $2 Million in Client Recoveries in 2021

Jones Jones LLC is an industry leader in identifying and securing mitigation opportunities for carriers, TPAs, and self-insured employers.  Loss transfer is a perfect example of how the winning litigation strategies utilized by our attorneys will bring you and your team the very best savings available for your claims.

Just in the first half of 2021 alone, the experienced Jones Jones LLC loss transfer team-lead by Partners Jacqueline Mancino and Agnes Neiger,  have recovered over $2.3 million dollars for clients by way of loss transfer. In fact, our recovery rate is over 96% for the amount of loss transfer recovery sought. Moreover, the Jones Jones LLC team has saved millions of dollars for clients in the defense of loss transfer claims brought against them. This is a major win for many clients as loss transfer is a vital mitigation tool that should always be reviewed, and if applicable, utilized fully in the claims process.

What is loss transfer? How can you ensure that you and your team are taking full advantage of loss transfer opportunities?

Loss transfer is the process by which an insurer or self-insurer that pays No-Fault benefits or Workers’ Compensation benefits in lieu of No-Fault benefits can recover reimbursement from the insurer of the party at fault for the accident. For a claim to qualify for loss transfer, the underlying loss must arise from a motor vehicle accident involving a vehicle for hire or a vehicle weighing in excess of 6,500 pounds. Loss transfer claims are resolved either by way of a settlement or they are heard via mandatory inter-company arbitration.   Arbitration Forums, Inc. is the sole forum designated by the State of New York to hear loss transfer matters.  A Workers’ Compensation carrier or self-insured employer can seek reimbursement of up to $50,000.00 in past payments on each Workers’ Compensation claim. However, a No-Fault carrier can seek over $50,000.00 via loss transfer if they have Optional Basic Economic Loss coverage. The Jones Jones LLC team is excellent at identifying and protecting clients’ rights in rare situations where Workers’ Compensation carriers can assert a lien for the first $50,000 paid on a claim arising from a motor vehicle accident. Our team guides clients  in order to avoid making common mistakes that can cost them thousands or even millions of dollars over time.

The loss transfer attorneys of Jones Jones LLC have nearly three decades of combined experience in working in the loss transfer arena, from inter-company arbitration hearings up to the highest appellate courts in the State of New York.  They have also served as arbitrators with Arbitration Forums, Inc.  Additionally, Partner Jacqueline Mancino is the Secretary for the New York State Loss Transfer Advisory Committee.  Partners Neiger and Mancino, and their highly skilled team, have the experience and knowledge to ensure that all of your claims with a loss transfer opportunity are fully vetted to obtain the maximum amount of recovery afforded to each claim.  Our attorney and paralegal team reviews each case referred to the loss transfer department to confirm that the claim is eligible for recovery. They then undertake an extensive review of the payments made on qualifying claims to identify all recoverable payments and review all accident documents to determine how best to prove liability.

The loss transfer attorneys of Jones Jones LLC are excited to assist you in the loss transfer process.   Contact us today at clientservices@jonesjonesllc.com for all of your loss transfer needs.