New York Workers’ Compensation Board Clarifies: Workers Can Receive Compensation Benefits if They Get COVID-19 While Working

New York Workers’ Compensation Board Clarifies: Workers Can Receive Compensation Benefits if They Get COVID-19 While Working

By Thomas M. Bona and Anthony M. Napoli. The New York State Workers’ Compensation Board has issued guidance and clarified that a worker who contracts COVID-19 while working is entitled to Workers’ Compensation benefits. The Board noted that the claim would be reviewed by the employer’s Workers’ Compensation insurance carrier and if the insurance carrier accepts the claim, the COVID-19 claim would be covered and compensable. If the carrier disputes the claim, a judge at the Workers’ Compensation Board will decide whether the claim should be paid. The judge would listen to the testimony of the worker and testimony of the medical provider to decide whether the worker was exposed to COVID-19, the extent of the exposure and whether the exposure to COVID-19 was prevalent in the work environment. The Board noted that most workers will never be able to point to the moment or method of exposure to COVID-19, but workers can demonstrate the significantly elevated risk in their workplace by demonstrating the nature and extent of their work in an environment or where exposure to COVID-19 was prevalent. The Board advised that the issue of causality regarding Workers’ Compensation claims resulting from COVID-19 is of a great importance. Accurate documentation regarding the patient’s work exposure is critical for workers to obtain appropriate benefits. Additionally, the provider’s opinion regarding the likelihood of work-related disease transmission should be included in the medical narrative. If the provider believes that the worker in their medical judgment, is likely to have contracted COVID-19 through a work exposure, it should be reported as such. The Board advised that a medical report from an...
PMT Delivers a Win: Double Shot – PMT Strategy Obtains Early Win and Saves Defense Costs

PMT Delivers a Win: Double Shot – PMT Strategy Obtains Early Win and Saves Defense Costs

By Neil T. Veilleux and Thomas M. Bona. Court: Supreme Court of the State of New York, Bronx County Judge: Hon. Lucindo Suarez Case Type: Construction Caption:Frank DiFrank v. Henegan Construction Co., et al. Index No.: 25556/2018 Decision Date: August 10, 2020 Decision: Summary Judgment Summary Judgment motions are designed to allow courts to narrow down the parties to a suit so that marginal or uninvolved parties can be dismissed and freed from the seemingly endless lifespan and costs of a lawsuit. It is difficult to win motions for summary judgment under the best of circumstances, in part because many judges refuse to dismiss wrongly-named parties under the guise that perhaps some scintilla of evidence will be uncovered in discovery. The sad truth is that judges leave these parties in so that they will have to pay their way out of lawsuits by financially contributing to a settlement. The aggressive defense that PMT prides itself on looks for opportunities to get our clients out of cases early which saves defense costs. And we are delighted when a judge takes our lead and grants our motion for summary judgment. In DiFrank v. Henegan Construction Co., LLC, the plaintiff was injured when he slipped and fell on a hose/wire on a construction site. Plaintiff asserted claims under Labor Law Sections 200; 240(1); 241(6) and common law negligence. We moved for summary judgment dismissing the case before depositions were even held since we were not present and had no connection to plaintiff’s injury-producing work. We submitted our contract and an affidavit from an executive vice president that demonstrated that we did not start work...
PMT Delivers a Win – Snow, Shortcuts and Accidents

PMT Delivers a Win – Snow, Shortcuts and Accidents

By Anthony M. Napoli and Thomas M. Bona. Court: Supreme Court, State of New York Dutchess County Judge: Hon. Hal B. Greenwald Case Type: Slip and Fall Caption: Adami v. Ridgefield Apartment Associates, LLC Index No.: 2017-52447 Decision Date: July 17, 2020 Decision: Summary Judgment Although we are in the middle of a hot summer, it seems fitting that we talk about winter because we know that sooner than we want, we will get snow. What happens when there is a little bit of snow covering an apartment complex walkway and a person decides to avoid the walkway and takes a shortcut to avoid the possibility of slipping on the snow on the walkway? Believe it or not, the person slips and falls in a rut on the grassy area that they cannot see and then turns around and sues the apartment complex for not remedying the defect. Bizarre as this sounds, this is exactly the scenario that PMT was asked to defend. By aggressively demonstrating the fallacy of plaintiff’s claims, we were able to win summary judgment for our client. In Adami v. Ridgefield Apartment Associates, LLC the plaintiff who lived in an apartment complex in Dutchess County, was walking to her car on the day of the accident. It had been snowing and the walk, stairs and grassy area were covered in about an inch of snow. The plaintiff decided, based upon her “judgment”, that she would not take the public sidewalk and public staircase because she had seen a prior accident on the steps. Rather, she would cross the snow-covered, non-public grassy area. She felt that she was...
Look What We Found: Legislature Revises Immunity Provisions for Health Care Facilities

Look What We Found: Legislature Revises Immunity Provisions for Health Care Facilities

By Thomas M. Bona. We recently told you about a limitation of liability provision for hospitals and nursing homes that was inserted into the last New York State budget. This provision granted immunity from civil and criminal  liability for any harm or damage alleged to have been caused as a result of an act or omission in the course of arranging for providing health care services if the health care facility or health care professionals were providing services pursuant to a COVID-19 emergency rule. We advised you that New York State legislators were caught off guard and not aware of the legislative immunity provision until the very last moment. When the legislature was in session in July, the Legislature quickly went to work at limiting the immunity provisions that they had just passed. The revised bill, which was just signed by Governor Cuomo, limits immunity to health care professionals providing diagnosis or treatment for confirmed or suspected COVID-19 patients, but does not apply to prevention or care of non-COVID-19 patients or to hospitals for arranging health care services. The revised legislation took effect immediately and applies to cases accruing after its enactment. So it now seems that the legislature has finally gotten the bill the way they intended it to be which is to provide immunity from liability for health care facilities for COVID-19 diagnosis or treatment. Should you have any questions, please call our office at (914) 703-6300 or contact: Jeffrey T. Miller, Executive Partner...
PMT Special Report: Jeff Miller, Doing What PMT Does Best – 24 out of 25 Cases Settled at Mediation Days

PMT Special Report: Jeff Miller, Doing What PMT Does Best – 24 out of 25 Cases Settled at Mediation Days

By Thomas M. Bona and Jeffrey T. Miller. While some things in the Insurance industry slowed down during the pandemic, here at PMT we were racing ahead working on a challenge by one of our carriers.  Our carrier asked PMT to select from a portfolio of habitation cases those which were ripe for resolution, schedule mediation days and resolve as many cases as we could. Working with our carrier, we selected 25 slip and fall and ceiling collapse cases. The cases involved back, neck and knee injuries. As we all know, mediation has become a popular and effective way to resolve cases. The theory, in such a setting, is both parties are highly motivated to settle cases. However, experience teaches there is a long way between the initial demand by the plaintiff and an ultimate resolution. Like a ritual dance, there is a process to a successful mediation. The mediations were personally handled by PMT’s Executive Partner Jeff Miller, one of our founders. In our industry, Jeff is universally considered one of the best attorneys at mediation and with good reason. Not all attorneys have the skill set to succeed at mediation, but Jeff possesses that rare combination of steely determination and empathy which, when combined with his ability to see the case from multiple perspectives, allows him to zero in on the fulcrum of the case to successfully close the negotiations and achieve positive results for our clients. With this as a backdrop, Jeff settled 24 of 25 cases at the mediation days. The settlements ranged from $20,000 to $450,000 and were all within the authority given by...