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The Rogak Report: 29 Jul 2009 (Part 1) ** No Fault - Workers Compensation **

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  • insurancelawyer
    WORKERS COMP BOARD MUST FIRST DECIDE IF NO-FAULT CLAIMANT IS ENTITLED TO COMP BENEFITS LMK Psychological Service P.C. v American Transit Insurance Company 2009
    Message 1 of 1 , Jul 29, 2009
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      WORKERS COMP BOARD MUST FIRST DECIDE IF NO-FAULT CLAIMANT IS ENTITLED TO COMP BENEFITS

      LMK Psychological Service P.C. v American Transit Insurance Company
      2009 NY Slip Op 06004
      Decided on July 28, 2009
      Appellate Division, Second Department
      Edited by Lawrence N. Rogak


      In this action to recover no-fault medical payments, the insurer's defense was that the claimant was working at the time of the accident and therefore the Workers Compensation Board had to first make a decision regarding WC benefits.   The Supreme Court granted the insurer's motion for summary judgment on the workers comp issue.  The Appellate Division reversed, holding "that the matter is remitted to the Supreme Court, Westchester County, for a new determination of those branches of the cross motion following a prompt application to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law."

      "The plaintiffs, as assignees of no-fault benefits, brought this action to recover for health services rendered to the beneficiaries of the defendant's no-fault insurance contracts. Each assignor received medical treatment from the plaintiffs following separate automobile accidents. The complaint contained 17 causes of action. The plaintiffs moved for summary judgment on the complaint and the defendant cross-moved, inter alia, for summary judgment dismissing the complaint. The Supreme Court... concluded that, because the assignors in the aforementioned causes of action were injured during the course of their respective employment, the plaintiffs were barred from recovery pursuant to Workers' Compensation Law § 11."

      "There has been no determination by the Workers' Compensation Board as to whether the assignors are entitled to Workers' Compensation benefits for their injuries (see Nunes v Window Network, LLC, 54 AD3d 834, 835; cf. Thompson v Grumman Aerospace Corp., 78 NY2d 553). The Workers' Compensation Board has primary jurisdiction to determine factual issues concerning coverage under the Workers' Compensation Law (see Botwinick v Ogden, 59 NY2d 909, 911; Bastidas v Epic Realty, LLC, 58 AD3d 776; Santigate v Linsalata, 304 AD2d 639, 640). Where a plaintiff fails to litigate that issue before the Board, the court should not express an opinion as to the availability of compensation but remit the matter to the Board. (O'Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d 633, 634, quoting Liss v Trans Auto Sys., 68 NY2d 15, 21)."

      "Accordingly, in considering the defendant's cross motion, the Supreme Court should not have entertained the defendant's contention that the plaintiffs were barred from recovery pursuant to Workers' Compensation Law § 11. Those claims must be referred to the Workers' Compensation Board for a determination as to whether the plaintiffs have a valid cause of action to recover no-fault benefits, or whether they are relegated to benefits under the Workers' Compensation Law."

      Comment:  My readers might be wondering how this decision could be consistent with the one I reported yesterday.  In that case, the insurer moved for summary judgment on the workers comp defense issue.  The Court there found that the insurer had waived the defense because it was not contained in a timely denial.  That insurer also claimed that if the claimant was not working at the time of the accident, then the claim was 'fraudulent' because its policies are only supposed to cover livery drivers.  In other words, that insurer had a convoluted argument which amounted to this: that it only insures livery cabs, and drivers who are working at the time of their accidents, so if the claimant was not working, it was a fraud and there is no coverage.   That backasswards reasoning was soundly rejected by the Civil Court.   The correct andvalid argument is that if a driver is working at the time of the accident, the no-fault claim must be timely denied on that ground, and then the claim must be referred to the Comp Board to make a determination as to whether or not the claimant was working.  If he was, he gets comp benefits.  If not, he gets no-fault benefits - despite any argument that he may have "misrepresented" the issue of whether he uses the car as a livery cab.

      Larry Rogak

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