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Jones Jones LLC Major Win Alert: SLUs

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.

Jones Jones LLC Major Win Alert: Construction Litigation

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.

NYS Workers’ Compensation Medical Marijuana – The Third Department Weighs In

The Third Department recently held in the Matter of Quigley v. Village of E. Aurora, 2021 N.Y. App. Div. LEXIS 1223 (3d Dept. Feb 25, 2021) that carriers are responsible for paying for, and reimbursing, a claimant’s medical marijuana use, regardless of federal law.

The Third Department Decision however noted that the Workers’ Compensation Law still requires that treatment be rendered in accordance with the Medical Treatment Guidelines and that the claimant would still need a valid prescription.

Furthermore, as medical marijuana is not specifically covered under the Guidelines, a variance request would be needed and the burden of proof to establish that a variance is appropriate and medically necessary is a burden that must be met by the claimant’s doctor. Carriers and self-insured employers can therefore object to medical marijuana requests on the basis that the doctor has not met his burden of proof or by obtaining a conflicting medical report (i.e. IME or record review).

If you have any questions or would like to discuss implications of this case law further, please do not hesitate in contacting us at clientservices@jonesjonesllc.com.

Jones Jones Major Win Alert!

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

  • Our aggressive approach to denied claims;
  • The importance of our developing a timeline for COVID-19 claims; and
  • Targeted testimony of the claimant and employer lay witness in order to develop the timeline of COVID-19 exposure, or lack thereof

 

Attorney Lauren Camo recently litigated an allegation of a COVID-19 work exposure.  The case involved a claimant who was employed as a cleaner for a community college. The claimant alleged he became symptomatic on April 15, 2020; and thereafter obtained a positive COVID-19 test four days later.

Upon cross-examination of the claimant, Attorney Camo discovered that the claimant began to feel symptomatic three days prior to his wife, whom he lived with at home.  Both the claimant and his wife tested on the same date and both ultimately obtained a positive result.  The claimant continued to testify that his supervisor was also positive for COVID-19.  However, Attorney Camo was able to secure a lay witness who testified that the claimant’s supervisor tested positive prior to the 14 day period that the claimant developed symptoms.  In fact, the employer witness testified that the claimant last worked with this supervisor on March 20, 2020, well outside the widely accepted incubation period for COVID-19.

Further, the Jones Jones LLC team was able to elicit concessions from the claimant’s treating doctor that there was no history of work exposure so therefore any exposure would have to occur during the fourteen days prior to claimant’s development of symptoms.  Due to the concessions  elicited during lay and medical testimony, as well as the focus on details and dates of COVID-19 exposure and testing, Attorney Camo was able to lay out a timeline to the Law Judge that led to a finding that the claim must be disallowed in its entirety. This successful litigation was secured by aggressive and thoughtful preparation of targeted cross-examination and review of facts and timeline.

Please reach out to Jones Jones LLC today at clientservices@jonesjonesllc.com so that we can help you and your team develop a successful COVID-19 defense strategy.

Proposed Legislation to Extend Compensation Coverage to Parking Areas

There has been recent confusion surrounding compensation cases which involve employees injuring themselves in parking lots, the main issue being whether an employee’s work period includes the travel time between the parking lot and the place of employment. According to the New Jersey “premises rule” employment on this travel ends “when the employee leaves the employer’s place of employment excluding areas not under the control of the employer.” N.J.S.A 34:15-36.  Case law has, therefore, turned on whether an employer “owns or controls” the parking area so as to make the injury compensable.

It is no surprise that the uncertainty around the law came within the purview of the New Jersey legislation. In December 2020, New Jersey legislation has proposed a new bill (S.B. 771) amending the premises rule to extend compensation coverage to parking areas provided or designated by the employer. Under the proposed legislation, if an employer “provides or designates” a parking space for an employee, then employment terminates “when the employee leaves the parking area at the end of the work period.” This could result in a massive expansion in potential liability now that the entire trip to the parking space is covered and perhaps even the employees immediate exiting the parking space as well.   Further, the bill provides that if the employer “provides or designates” a parking area that is separate from the place of employment, employees will now be covered while they travel to and from the parking area and the employer’s place of employment.

Prior to proposed Bill S711, the Court held that in cases in which an employer “directs” or “compels” an employee to park in a particular location, such conduct will fall under the ambit of the premises rule. Livingstone V. Abraham & Straus, Inc., 111 N.J. 89 (1988).   In cases where the employer has been held to not own the parking lot or the street where the employee was injured, the court looked instead to factors such whether the employer created an additional hazard for employees or whether the employers accrued a business benefit. Hersh v. County of Morris, 217 N.J. 236 (2014). In the most recent case on the topic, Manuel v. RWJ Barnabas Health, the Court held that an employee’s walk to a hospital parking lot was not compensable. No. A-0270-18T1 (App. Div. Oct. 16, 2019). In Manuel, the Court reasoned that the claim was not compensable because the respondent did not own the public street or the parking lot, the respondent did not direct the employee where to park, and the claimant could have opted to use the provided shuttle bus. Supra.

If this new bill is passed, it is possible that the outcome in Manuel, would be changed. Since the respondent rented the parking spots for use of their employees, the claimant’s walk would have been compensable, as they would be deemed to have “provided” parking spaces.

In addition, with the rise in communal workspaces it is likely that parking lots will be shared between many different employers possibly making these claims even more complicated. However, employers can reduce the effects of the new bill by installing parking lot surveillance or providing transportation to and from work and the parking lot.

As a result of this new bill passing, each injury sustained in a parking lot will be assessed differently.  We will be monitoring the proposed legislation on Legiscan to track the passing of the bill. As always, Jones Jones stands at the ready to ensure your claims are adequately represented in light of this possible law change. “Legal Defense Refreshed” is not just an empty slogan; we work hard every day to stay on the cutting edge of workers’ compensation defense.

To schedule a review of your claims that could be impacted by this new bill, contact us at clientservices@jonesjonesllc.com.