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Imagine a claim comes across your desk where the claimant is injured on the job. It seems relatively straight forward until you dig deeper, and details don’t line up. It appears the claimant has fabricated the incident.

While your first inclination is to deny the claim, you think twice. As we know, the board presumes all claimants are telling the truth, until proven guilty. It can also be difficult to “prove a negative.”

Such cases often come down to credibility determinations made by the Law Judges. More often than not, they will side with the claimant in cases where they must determine credibility between a claimant who claims they were injured at work and employer witnesses who testify to the contrary.

Jones Jones LLC has navigated countless cases like this. Now, we’re taking our expertise related to working with Fraud Inspector General and Attorney General’s Office and sharing it as a helpful resource for individuals and employers who suspect workers’ compensation fraud.

Please find that resource below For more information on how Jones Jones can help you navigate a situation of criminal fraud, please visit https://jonesjonesllc.com/ or contact clientservices@jonesjonesllc.com.

Jones Jones LLC is pleased to announce that Partner David Secemski and Partner Stacee Vaikness have each recently secured favorable decisions before the New York State Third Department, thereby making positive case law for employers and carriers within the state.

In Rodriguez v. American Bridge Company, (Matter of Rodriguez v American Bridge Co. (2023 NY Slip Op 00909) (nycourts.gov)) Partner Vaikness successfully argued for a permanent disqualification of all future wage replacement benefits.  In this case, it had been found that the claimant had violated WCL 114-a for a fraud violation.  The underlying  WCL 114-a facts were in relation to the claimant who had sustained workers’ compensation injuries as a truck driver.  He had testified on at least three separate occasions to having completed no work nor volunteer work during the time in which he was receiving wage replacement benefits on his workers’ compensation claim. It was later discovered that during this time, however, the claimant held an elected position as a constable. The Court noted that the claimant was evasive and sought to minimize his duties as constable and therefore upheld all penalties associated with the fraud finding. Ultimately this successful litigation resulted in not only the claimant being disqualified from future benefits, but also in the claimant having to pay back the carrier over $60,000 in indemnity benefits.

In Sanchez v. NYC Transit Authority, (Sanchez-2.pdf (ny.gov)), Partner Secemski successfully litigated the full disallowance of an occupational disease claim.  The claimant was employed as a railroad clerk since 1995 and thereafter a station agent for the employer.  In 2020, she filed a claim for bilateral carpal tunnel syndrome; maintaining this condition was due to the repetitive nature of her job duties. The Court found that the claimant failed to “establish a causal relationship between her bilateral carpal tunnel syndrome and a distinct feature of her employment.”  Specifically, the Court focused on the variety of tasks the claimant had undertaken as part of her duties, such as typing on a keyboard, and found that there was this failure. The Court also noted that the claimant’s doctor did not give compelling medical testimony as the doctor was unaware of the claimant’s duties at work post the introduction of metrocards; and was unable to connect how the claimant’s duties at work pre-metrocard introduction could possibly have any bearing on her physical condition at present.  The Court ultimately found that the claimant’s claim for an occupational disease claim be fully disallowed.

Please connect with our appellate team today at clientservices@jonesjonesllc.com!

In New York City Transit Authority v. American Transit Insurance Company, 2022 NY Slip Op 07508 (App. Div., 1^st Dept. 2022), Jones Jones LLC Partner Jackie Mancino was successful in obtaining an Appellate Division decision reversing the lower court’s order that would have prevented Jones Jones LLC client, The New York City Transit Authority, from recovering a $25,000 award in their favor. Jones Jones LLC’s handling of this matter began with the filing of a Loss Transfer claim in which the Transit Authority sought reimbursement for Workers’ Compensation benefits paid in lieu of No-Fault benefits arising from an employee’s injuries suffered in a motor vehicle accident. Following arbitration of the claim, Jones Jones LLC succeeded in securing an award of $25,000 for our client. However, the respondent insurer failed to issue payment.

In order to enforce the arbitration award, Partner Mancino filed a petition seeking to confirm the award and enter judgment for the outstanding amount. However, the lower court dismissed the petition based on a misapplication of the statute of limitations. Specifically, the lower court failed to properly apply Executive Order 202.8, which was signed by Governor Andrew Cuomo on March 20, 2020 in response to the Covid-19 public health crisis and included a provision tolling the specific time limit for the commencement, filing, or service of any legal action from said date through November 3, 2020, which was a span of 228 days. The lower court erroneously applied the toll as if it were merely a 228 day extension of the statute of limitations, thus finding that the statute of limitations expired 228 days after the toll was lifted on November 4, 2020, or on June 21, 2021. On appeal, Partner Mancino correctly argued that a toll is distinguishable from a mere extension because a toll essentially presses the pause button on the clock counting down the time within which a particular action must be taken. Thus, where the time period for taking action is tolled, the clock, which was paused by the toll, simply begins to run again when the toll is lifted. As such, in the case at bar, there were 350 days remaining on the applicable statute of limitations when the toll went into effect on March 20, 2020. As such, when the toll was lifted on November 4, 2020, there remained 350 days until the statute of limitations expired as opposed to 228 days.

The First Department agreed with Partner Mancino’s position on the issue, reversed the lower court’s decision and confirmed the arbitration award, which will allow Jones Jones LLC to pursue the full amount originally sought by our client.  Contact the Jones Jones LLC Loss Transfer team at clientservices@jonesjonesllc.com

Jones Jones LLC Partner Rosanna Shamash won a Third Department decision in Juanita Jones v. New York City Transit Authority (https://decisions.courts.state.ny.us/ad3/Decisions/2022/534984.pdf). The underlying facts of this decision begin with a Law Judge’s determination that the claimant violated fraud Section 114-a by failing to disclose certain work activities.  Ultimately, the Law Judge sanctioned both mandatory and discretionary penalties; meaning that not only would the claimant have to pay money back, but also that she would no longer be qualified to receive any future indemnity payments arising from this claim. Upon appeal of this decision, the NYS Workers’ Compensation Board noted that the RB-89 portion of the claimant’s appeal was not fully completed and therefore the appeal was completely denied.  Partner Shamash was able to have this finding upheld before the Third Department despite the claimant raising a newly enacted law, WCL 23-a(1).  WCL 23-a(1) states, that “a mistake, omission, defect and/or other irregularity in a {form RB-89} accompanying an application for administrative review …shall not be ground for denial of said application.” Partner Shamash was able to skillfully highlight to the Court that the merits of the case support the finding of fraud and that WCL 23-a(1) does not apply to this matter as the legislation came into effect after the filing of the incomplete RB-89 by the claimant.

Congratulations to Partner Shamash for a great win!