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Workers Compensation defense



I would be remiss if I did not thank Dave Barshay for the citation to this blog in his article. I also must thank David Gottlieb for posting Mr. Barshay’s citation to this article on his blog. While I am not sure it is really critical that you read this blog, despite what Mr. Gottlieb says to the contrary, I thank him for the compliment nonetheless. Now that the peremptory “thank yous” are out of the way, now onto the cases.

A.B. Med. Servs., PLLC v American Tr. Ins. Co., 2009 NY Slip Op 29271 (App. Term 2d Dept. 2009)

A.B. Med. Servs., PLLC v American Tr. Ins. Co., 2009 NY Slip Op 51262(U)(App. Term 2d Dept. 2009)

A.B. Med. Servs., PLLC v American Tr. Ins. Co., 2009 NY Slip Op 51263(U)(App. Term 2d Dept. 2009)

Inwood Hill Med., P.C. v Metropolitan Prop. & Cas. Ins. Co. 2009 NY Slip Op 51264(U)(App. Term 2d Dept. 2009)

The day after the no-fault wrap up, the Appellate Term, Second Department issued a slue of opinions regarding the Workers Compensation defense, which was consistent with what Mr. Barshay’s article stated. Again, I discussed this issue on a previous blog post.

However, when the issue is phrased in light of the “exceptional” circumstance of non-coverage, as recently opined upon by the Court of Appeals in Fair Price, the Workers Compensation defense is waivbale.

However, when this issue is evaluated through the prism of “standing”, the Appellate Division’s conclusion may not be correct. As the law stands right now, a service rendered by an independent contractor or an improperly formed medical corporation is not subject to the “preclusion” sanction, through the failure to timely or properly deny a claim. This is because an independent contractor and an improperly formed corporation lacks standing to prosecute a no-fault claim. It thus follows that based upon 65-3.19, the Workers Compensation defense, in relation to a claim for medical benefits, should not be subject to the 30-day pay or deny rule. This follows from the simple conclusion that an injured person and his or her assignee lack standing to prosecute such a first-party no-fault claim for medical benefits.

The above standing analysis in no way applies to wage benefits, since the regulations explicitly state that no-fault wage coverage is secondary to Workers Compensation wage coverage.