Author: Jones Jones

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

• The jurisdictional complexities that may arise while representing national or worldwide employer entities;
• The success that can come with a detailed review of the facts surrounding a claimant’s contacts with New York State versus their home state;
• The need to review a claim for an aggressive defense, despite possible filing issues with pre-hearing conference forms.

Attorney Ian Leaderman recently successfully litigated a claim before the New York State Workers’ Compensation Board for an airline client on the issue of proper state jurisdiction. The flight attendant claimant sustained injury to her neck, left shoulder, back and bilateral wrists as she pushed a drink cart during a flight between Greece and JFK. The claimant was a Georgia state resident at the time of injury and immediately begun to start treating in her home state. Thereafter, a claim was initiated with the Georgia State Board of Workers’ Compensation on September 6, 2019, just two days after the subject accident. Several “WC-2, Notice of Payment” forms were filed by the Georgia Board documenting indemnity payments made to the claimant. Eventually, the claimant’s Georgia doctors found that the claimant had reached maximum medical improvement and was 0% disabled.

Six months after the date of accident, and after receiving Georgia workers’ compensation benefits, the claimant’s New York attorney filed an initial notice of claim with the New York State Workers’ Compensation Board. In April 2021, a hearing was scheduled and evidence regarding the Georgia claim was submitted for review by the New York State Law Judge. Ultimately, Attorney Leaderman argued that there were simply insufficient ties to New York State to establish a New York claim; advising the Law Judge that the record demonstrated that the claimant resided in Georgia and chose to pursue all medical treatment in Georgia. Further, had the need for litigation, testimony, etc. arose, particularly with regard to any medical disputes, the witnesses, including the claimant’s physicians, all resided in Georgia as well.

The New York State Law Judge issued a Reserved Decision finding in favor of all of Attorney Leaderman’s points, concluding that there was a lack of sufficient contacts to established a New York State claim. The claimant’s attorney appealed this decision, heavily relying on the fact that the carrier for the airline did not timely file a pre-hearing conference form outlining the defense of jurisdiction. On appeal, Attorney Leaderman argued that the issue of jurisdiction can be raised at any stage of a workers’ compensation claim . The Board Panel agreed, and upon review, held that the carrier’s failure to file a pre-hearing conference statement is not a waiver of the issue of subject matter jurisdiction (see Hermann Transportation, 2018 NY Wrk Comp G1069461), while also noting that the New York Law Judge properly found that there is no subject matter jurisdiction in New York. The Board upheld the disallowance of the claim. Attorney Leaderman’s excellent litigation of this claim allowed for the case to remain closed with the finding of a 0% disability at maximum medical improvement.

Jones Jones LLC attorneys are ready to navigate you and your team through the complexities of jurisdictional defenses. Our attorneys will apply the necessary detailed review and aggressive approach to ensure success.

Contact us today at clientservices@jonesjonesllc.com to connect with an attorney today!

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.

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.