workers comp

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.

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.

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

• The aggressive approach needed on construction claims involving allegations of injury to many body parts and medical conditions;
• The success that results from a detailed review of on-site and emergency room records; and
• The importance of bringing to the law judge’s attention any change in claimant’s account of the mechanism of injury.

Attorney Ian Leaderman recently litigated a claim involving an injured employee of a construction company. The claimant was initially injured due to striking his face while at work on a construction site. The claim was established for the head and left eye only. Approximately, one month later after the establishment of his claim, the claimant alleged that in addition to the accepted and established body parts, he also injured his neck, back, bilateral knees, bilateral shoulders, as well as developed PTSD.

Attempting to establish additional body parts is an activity that defense carriers and attorneys often observe; especially when it comes to claims involving construction incidents. Why do we see this pattern of additional body parts repeatedly be raised on construction claims? Well, very often, the claimant not only has a workers’ compensation claim, but he or she may also have a general liability suit. This lawsuit enables the claimant to seek large monetary payouts by way of settlement or court decision. Expanding the workers’ compensation injuries on construction claims to as many body parts and conditions as possible may assist in this other lawsuit. Therefore, it is important to defend workers’ compensation construction claims with an aggressive approach to limit exposure on both the workers’ compensation claim and the general liability lawsuit.

Attorney Leaderman undertook the necessary aggressive approach on this case. He was able to gather and review the construction company’s on-site medical report and the emergency room records from the day of the accident. Upon a thorough review of these records, it became evident that the claimant had put forth two different version of the injury event. The initial emergency room records and on-site accident report detailed a strike to the face with injury to head and left eye. Subsequent medical reports began to list all of the additional body parts the claimant was attempting to amend the claim to include. Most interestingly, these reports also detailed a completely different mechanism of injury—involving an item falling from a ceiling. Attorney Leaderman was able to highlight these discrepancies to the law judge, which ultimately culminated in all of the additional body parts and conditions to be disallowed entirely. Jones Jones LLC is happy to guide you through the intricacies of construction litigation and apply this same detailed litigation approach to your claims.

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