Author: Jones Jones

Jones Jones LLC is proud to share that Associate Kevin Moy and his team led a successful construction workers’ compensation appeal before the New York State Workers’ Compensation Board (NYSWCB). Moy’s win comes at a time of contention when there are concerns throughout the construction industry regarding workers’ compensation fraud.

Last summer, a Workers Compensation Law Judge ruled in favor of a claimant who claimed to have headaches and injuries to her neck, back and shoulders after a fall while working at a construction site. However, the construction company and insurance carrier had no records of the employee on site and denied any relationship with her. Moy and his team sought to appeal the finding that the claimant was a company employee and have the case disallowed.

The team produced lay witnesses to testify that the construction company had no records of the employee. They corroborated their position with documented evidence such as payroll records, sign-in sheets and work logs that did not include the claimant or the individuals noted in the testimony. The New York State Workers’ Compensation Board (NYSWCB) ultimately reversed the decision and disallowed the claim.

This win is significant given the current concern about workers’ compensation fraud in the construction industry. Many undocumented claimants will use the fact that they are undocumented as an excuse or explanation for why they cannot provide evidence of employment with the organization from which they are pursuing payment. Unfortunately, many judges accept this excuse although by law, it is the claimant’s burden to prove their case. In winning this appeal the team has highlighted that the NYSWCB is increasingly aware of such fraudulent actions by claimants and the lack of logic from trial Judges.

Please join us in congratulating Kevin Moy and his entire team on securing this appeal and a win in the fight against workers’ compensation fraud in construction. If you are in need of assistance with a workers’ compensation case, please contact our appellate team at clientservices@jonesjonesllc.com.

Jones Jones LLC Partner Stacee Vaikness and her team have secured a third department win in a recent Workers’ Compensation Law § 114-a fraud case appealed from the New York State Workers’ Compensation Board (NYSWCB).

In this case, a workers compensation claim was made in 2016 alleging the plaintiff experienced work-related injuries due to repetitive use of his right shoulder and both knees. After a permanency evaluation was performed, a hearing to address the claimant’s preexisting injuries and conditions was requested by the self-insured employer.

In the August 2021 hearing, the employer provided surveillance video showing the claimant misrepresented his physical condition and failed to report work activity he engaged in following retirement. A hearing was held to address the 114-a violation, with testimony from an investigator retained by the employer and the claimant. The Workers’ Compensation Law Judge found the claimant deliberately misrepresented his physical condition during an independent medical exam and the Workers’ Compensation Board affirmed the decision, finding the claimant did violate Workers’ Compensation Law § 114-a. The decision implements both mandatory and discretionary disqualifications, which includes disqualification of all future indemnity payments.

Vaikness and her team worked extensively to prove the claimant’s misrepresentations and omissions were fraudulent under WCL 114-a. Overall, the affirmation Vaikness and her team secured will prevent the claimant from ever receiving additional indemnity benefits, including SLU awards that would have amounted to approximately $300,000.00.

Well done to Stacee Vaikness and her entire team on securing this appeal. If you are in need of assistance with a workers’ compensation case, please contact our appellate team at clientservices@jonesjonesllc.com.

Partner David Secemski recently secured a favorable decision in a WCL Section 120 case before the New York State Workers’ Compensation Board (NYSWCB) on the grounds of discrimination.

The claimant experienced two separate work-related injuries in 2022. After a brief period of lost time following one of the injuries, the claimant returned to work. Both cases resolved with a schedule loss of use (SLU) award. Thereafter, the claimant made a claim against the employer for discrimination under WCL Section 120.

The claim alleged that the employer retaliated and discriminated against the employee for having filed or pursued Workers’ Compensation benefits. In this case, the claimant remained an employee after the injuries but was demoted. He claimed the demotion was the direct result of the two Workers’ Compensation claims he pursued. Secemski sought records from the employer to demonstrate the demotion was due to job performance and worked with the claimant’s supervisor to prepare for testimony.

Secemski argued that the claimant’s demotion was based on a bona fide business decision and was not discriminatory or retaliatory. With the burden of proof for such claims on the claimant, Secemski demonstrated that the claimant failed to provide such proof.

When successful, WCL Section 120 claims can require the employer to make payment for retroactive lost wages, take corrective action to restore the claimant to his or her position as well as pay for any attorney’s fees over and above a monetary award to the claimant. The decision in favor of Secemski potentially saved the employer tens of thousands of dollars and prevented them from having to promote the claimant to a position for which they felt he was not qualified.

Please join us in congratulating David Secemski on his incredible work. Contact our appellate team at clientservices@jonesjonesllc.com if you are in need of assistance with a workers’ compensation case.

Jones Jones LLC is pleased to share that Associate Diandra Archibald led a successful appeal before the New York State Workers’ Compensation Board (NYSWCB) alongside her team.

The Administrative Law Judge initially ruled in favor of the claimant in a shoulder injury claim, stating Archibald and her team waived their opportunity to cross-examine the claimant’s treating doctors. Given the claimant’s inability to recall their supervisor’s name and an incomplete filling of the C-3 form, the Jones Jones team requested to substitute a lay witness. This request was denied. 

Archibald diligently contested the Judge’s denials, ensuring any objections were formally documented and thoroughly explained. Upon appeal, Archibald effectively reiterated all arguments, supported by relevant case law and thorough analysis. The Board Panel ultimately sided with Archibald and returned the matter to the calendar for further development. After nearly two years of litigation, the claim was disallowed. In securing this victory, Archibald saved the carrier approximately $70,000 in indemnity payments, potential schedule loss of use (SLU)awards, as well as potential medical treatment costs, as the claimant had been out of work for more than one year.

Congratulations to Archibald and her entire team. If you are in need of assistance with a workers’ compensation case, please contact our appellate team at clientservices@jonesjonesllc.com. 

Jones Jones LLC is excited to announce we are now members of the Workers’ Compensation Defense Institute, (WCDI), an alliance of leading U.S. workers’ compensation law firms. By joining the WCDI for New York State representation, Jones Jones is joining 16 other law firms in their commitment to quality legal services, with access to a network of lawyers across 14 states and a multitude of jurisdictions.

According to WCDI’s website, the mission of the organization is to: “provide individual and collective training to serve as a comprehensive resource on multiple jurisdictions in the continually evolving industry of workers’ compensation law.” In joining WCDI, Jones Jones lends our expertise in New York to the capabilities of the organization while simultaneously gaining access to top legal minds in the workers’ compensation space across the U.S.

As one of our first steps as a WCDI member, Jones Jones Managing Partner Sarah Thomas is speaking on behalf of the firm and the organization at the Workers’ Compensation Institute’s Annual Conference in Orlando, Florida in August to present on all matters related to workers’ compensation in New York. We hope to see many of you there.