Wednesday, June 18, 2008

Sign Of The Times

Monday, June 16, 2008

This is Lawrence, Kansas. Is There Anybody There?

I picked up this little tid bit off of Amy Campbell's blog. Whodathunkit. Lawyers are slow to pick up on new marketing ideas such

Lawyers Slow To Embrace Blogs ABA Survey Says

Further Ruminations on Vasquez

Last Tuesday I posted concerning the soon to be released Connecticut Supreme Court Decision which held that New York worker's comp law applied in the case of a New York City landscaper killed in a car crash incidental to a job he was doing in Greenwich. In giving the matter additional thought, I think there is an important lesson to be taken away from the seemingly harsh result. The lesson is this: Sometimes, it really does make a difference where you file your worker's comp claim.

In Vasquez, the decedent was clearly killed in Connecticut, while working for his employer on a Connecticut job. Yet, rather than make a claim for benefits in Connecticut his widow (or more likely his widow's New York Lawyer) elected to bring the claim New York State's worker's comp forum. Now I do not profess to be an expert in NY worker's comp law. I have heard, anecdotally, that it is less forgiving and even more harsh than Connecticut's post 1995 Act but I don't have any first hand knowledge. What I do know now (that admittedly I did not know last week) is that NY worker's comp law does not allow a worker to sue a fellow employee for injuries sustained in the operation of a motor vehicle. Connecticut does.

In the Vasquez case, the election of NY Comp has now come back to haunt the decedent's family big time. Had they given the matter further consideration, or perhaps talked to one of our many skilled Fairfield County comp lawyers, they may have made a different choice with a happier result.

Hindsight is 20/20. My point is this: we are a small State. Often our workers travel to NYC or Massachusetts or Rhode Island for work. Or vice versa. And sometimes they get hurt.

Before blindly electing to proceed under a given State's Worker's Comp system, stop, take a breath, and think of the Vasquez decision. Then at least do yourself the favor of sitting down with two experienced worker's compensation lawyers---one from each involved State ---and discuss your matter in detail. Only then, with eyes wide open, will you know which is the best option for you.

Tuesday, June 10, 2008

Breaking: Supremes Apply New York Law To Bar Recovery in Recovery In Greenwich Crash Death

In a decision due to be officially released on June 17th, the Connecticut Supreme Court has upheld a trial court decision concluding that New York Worker's Comp Law was the applicable standard to apply in connection with a June 2001 crash in Greenwich which took the life of Juan Rocato Brito, a New York City resident that was employed as a landscaper doing day work in Greenwich.

Had Connecticut law applied, a third party liability claim over and above a worker's comp claim could have been pursued under the "motor vehicle exception" of our Worker's Compensation Act providing the possibility of a far larger financial recovery than a worker's comp case alone can provide. New York WC law provides no such motor vehicle exception and since the Court has concluded that NY WC law applies here, then the Brito estate is left without any recovery over and above the comp case.The complete decision can be read here.

Monday, June 2, 2008

Despite Favorable Votes by the Labor Subcommittee, Connecticut WC Reforms Die on the Vine for 2008

The Connecticut General Assembly adjourned its 2008 legislative session without passing any of several workers' compensation bills that were opposed by the insurance industry, the American Insurance Association reported in a session end press release.

“Overall, AIA is very pleased with the outcome of the session,” said Laura Kersey, Northeast Region assistant vice president. “The industry was successful in defeating a number of proposals that would have had a negative impact on consumers and insurers. We feel strongly that the decisions made by the General Assembly this session will ultimately benefit workers throughout the state.”

The AIA said several "adverse proposals" would have significantly increased workers' compensation costs and undermined the workers' compensation reforms that the state enacted in 1993. For example, Senate Bill 255 would have greatly increased potential permanent partial disability (PPD) benefit payments in a state where PPD awards already are very high and well above the national average, the group said. In addition to the benefit increase, the legislation would have also created disincentives for injured workers to return to work in a timely and appropriate manner as well as increased the number of disputes within the system and costs associated with those additional disputes, such as attorney fees and medical-legal expert costs, according to the AIA.

The AIA said House Bill 5626 would have destabilized Connecticut's workers' compensation system by negating the exclusive remedy protection by allowing the injured worker to bring a civil action against the workers' compensation insurer for alleged breach of good faith and fair dealing in the administration of claims.

Source: AIA

New York Court Cites Exclusive remedy Provision to Limit Recovery in Changing Room Distress Claim

A New York appellate court denied a worker's motion to amend her complaint against her employer who allegedly videotaped her as she changed into her uniform, because workers' compensation exclusive remedy would preclude her from alleging negligent infliction of emotional distress against her employer.

An employee of the Northeast Theatre Corp. sued her employer after discovering that the business had videotaped a room in which employees frequently changed. The worker, Shinell Thomas, sued the employer alleging violation of her civil rights. She sought to amend her complaint in trial court to add a claim under General Obligations Law Section 395-b, which describes the unlawful installation of viewing devices such as cameras and mirrors.

The trial court granted Thomas' motion to amend, but on appeal, the 1st Appellate Division of the New York Supreme Court reversed that decision.

The appellate justice explained:
"Although section 395-b has been held to set forth a duty that may serve as a basis for a claim of negligent infliction of emotional distress (citation), any such claim would be barred by the exclusivity provisions of the Workers' Compensation Law (citation). To the extent plaintiff also claims that defendants acted intentionally to inflict emotional distress, any such claim would be barred by the one-year statute of limitations."

The published decision is named Thomas v. Northeast Theatre Corp., No. 3752N, 5/29/08.

Source: WorkCompCentral