H&W Welcomes Ellen Shanahan Becker
Hamberger & Weiss is pleased to welcome Ellen Shanahan Becker as Special Counsel in our Buffalo office. Ellen has been practicing Workers’ Compensation Law exclusively since her admission to the New York State Bar in 1994, representing carriers, self-insureds, and employers directly. She is the Past Chair and a current member of the Erie County Bar Association Workers’ Compensation Committee and frequently lectures at CLEs for the Bar Association.
Ms. Becker handles all aspects of litigation, including initial contact with employers during the investigation, necessary filings, witness preparation, court appearances, lay and medical testimony. Over her career, she has cross-examined hundreds of medical professionals including most of Western New York’s most prominent orthopedic and neurologic specialists, always with the goal of ensuring that claims brought are for legitimate workplace injuries only and truly causally related medical care. Ellen negotiates and drafts final settlement agreements to end liability, both medical and indemnity, frequently encompassing Medicare set aside, annuity and third-party settlement issues.
Court of Appeals Closes Section 25-a Fund in American Economy Decision
For those of you who missed our Special Alert on 10/25/17 — The New York Court of Appeals, in a unanimous decision issued on 10/24/17, reversed the Appellate Division, First Department’s 2016 decision inAmerican Economy v. State of New York, 139 A.D.3d 138 (1st Dept. 2016), closing the WCL §25-a fund to claims not submitted for Section 25-a relief before the 1/1/14 deadline. The Court, in a decision authored by Judge Eugene Fahey, was unconvinced by the constitutional arguments raised by the dozens of insurance carrier plaintiffs and found that the closure of the 25-a fund, despite its retroactive impact which imposed unfunded costs upon those plaintiffs, was nevertheless constitutionally permissible.
While technically the plaintiffs may have a right to petition the U.S. Supreme Court for relief, we view success on such a petition to be highly unlikely. Accordingly, the hope of transferring any cases on which applications for 25-a relief were not made before 1/1/14 is now lost. Carriers can expect that the Board will dismiss any pending requests for transfer of claims to the 25-a fund. The Board had previously held in abeyance applications for transfer of claims to the 25-a fund during the pendency of this appeal.
Those interested in reviewing the specifics of the Court’s reasoning arewelcome to review the decision by clicking on this link. Please do not hesitate to contact any ofour attorneys to discuss the decision and its impact on your claims.
Appellate Division Affirms Board Decision Denying Benefits to Claimant Working Reduced Hours
On 10/5/17, the Appellate Division, Third Department, decided Romanko v. New York University. This decision holds that a claimant who voluntarily self-limits her participation in the labor force is not entitled to indemnity awards. The claimant was an assistant finance director. After resigning her employment, she looked for work and eventually alleged re-attachment to the labor market after taking a job as an accountant working only six hours per week. Claimant alleged the six-hours-per-week job was in line with the medical restrictions recommended by her treating physician. The Board rejected the treating physician’s restrictions in favor of an opinion from a different doctor who did not limit the number of hours claimant could work per week. The Board found that the claimant had not sufficiently re-attached to the labor market and the claimant appealed. The Appellate Division affirmed, holding that a claimant who does not search for employment consistent with his or her medical restrictions (in this case, no hourly restrictions) is not attached to the labor market even if engaged in token participation in the work force.
Note that the claimant's treating physician opined that the claimant could only work one day per week and the Board rejected that opinion in favor of the carrier's consultant's opinion that the claimant was not restricted from full-time work. Employers and carriers should keep this in mind when faced with the argument from claimants that they are entitled to rely on their physician's opinions concerning work ability and degree of disability. With respect to labor market attachment, it is the Board's judgment—not the claimant's or claimant's physician's opinion—on degree of disability and work restrictions that controls.
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