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Quirky Workers Compensation case

Flatbush Chiropractic, P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50105(U)(App. Term 2d Dept. 2017)

“A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221 [e] [2]) and must “contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). We note that a claim for workers’ compensation benefits must be filed by the injured worker on a particular Board form within two years after the date of the accident (Workers’ Compensation Law § 28) and may not be assigned (Workers’ Compensation Law § 33). Plaintiff did not demonstrate that its assignor had made a proper application for workers’ compensation benefits (see A. B. Med. Servs., PLLC v American Tr. Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50076[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).”

Assume a decision comes out from the court stating that the EIP must make a prompt application to the board, the EIP does this and has the claim is denied due to failing to comply with WCL 28.  Would no-fault then be on the hook since there is no WC available, albeit due to the actions of the Assignor?  See 11 NYCRR 65-3.12(a)(9)(“Pursuant to section 5102(b)(2) of the Insurance Law, when the applicant is entitled to workers’ compensation benefits due to the same accident, the workers’ compensation carrier shall be the sole source of reimbursement for medical expenses.”)