The existence of a workers compensation award is lack of coverage

Active Care Med. Supply Corp. v Hartford Ins. Co., 2018 NY Slip Op 51591(U)(App. Term 2d Dept. 2018)

“Contrary to plaintiff’s contention, a lack of coverage defense may be raised without regard to any issue as to the propriety or timeliness of an insurer’s denial of claim form (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [lack of coverage defense is not precluded]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The papers submitted by defendant in support of its motion, and by plaintiff in support of its cross motion, established that plaintiff had submitted claims for workers’ compensation benefits and that the Workers’ Compensation Board had awarded plaintiff’s assignor workers’ compensation benefits [*2]for injuries she had sustained in the accident at issue. As plaintiff failed to demonstrate the existence of a triable issue of fact, the order is affirmed.”

This changes the calculus a bit.  While the existence of Workers Compensation coverage is precludable, the actual proof and fact of the workers compensation coverage is a coverage defense.  In actuality, the regulation states that Workers Compensation Coverage is the only type of coverage that will pay medical billings when the choice is between No-Fault and Compensation.  But, the Second Department has held it is an offset.  Perhaps as to lost wages, but not as to medical billings.

Workers Compensation defense substantitated

Chiropractic Testing Servs. of N.Y., P.C. v American Tr. Ins. Co., 2018 NY Slip Op 28052 (Civ. Ct. Richmond Co. 2018)

“This case is distinguishable from Global Liberty, however, because Assignor did not own his vehicle. Here, American United Transportation (hereinafter, “the cab company”) owned the vehicle and was named as the insured on the automobile insurance policy.

According to Workers Compensation Law § 2 (3), a livery base shall be deemed the “employer” of a driver if it must register with the Taxi & Limousine Commission (TLC) and is [*2]not an “independent livery base” as defined in § 18-c ^[FN1] . Even in cases where the driver owned the vehicle and paid for its fuel and maintenance, the Board has found an employer-employee relationship because the vehicle carried the dispatcher’s sign and telephone number, the dispatcher provided his radio, and the dispatcher exerted control over which calls he would pick up and how much he could charge (See Olistin v Wellington, 3 AD3d 618 [3d Dept 2004]).”

“Defendant need not prove that Assignor was employed by the cab company at the time of the accident, but merely show “potential merit” to its claim so as to trigger a determination by the Board (A.B. Med. Servs. PLLC v Am. Transit Ins. Co., 8 Misc 3d 127 [2d Dept 2005]^[FN2] ).”

Workers Compensation from the First Department

AEE Med. Diagnostic, P.C. v Travelers Prop. Cas. Co. of Am., 2017 NY Slip Op 51209(U)(App. Term 1st Dept. 2017)

“Defendant’s submissions in support of its motion for summary judgment dismissing this first-party, no-fault action, including the statement of plaintiff’s assignor, raised triable issues as to whether the assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; Great Health Care Chiropractic, P.C. v Lancer Ins. Co., 42 Misc 3d 145[A], 2014 NY Slip Op 50340[U] [App Term, 2d, 11th & 13th Jud Dists, 2014]). Plaintiff’s present argument that the assignor’s statement is defective and inadmissible, is unpreserved, as it is improperly raised for the first time on appeal (see Jordan v City of New York, 126 AD3d 619 [2015]). The defects now alleged by plaintiff could have been corrected by defendant before the motion court, if raised at an earlier time (see DeJesus v Tavares, 140 AD3d 433 [2016])”

“[T]he parties’ respective summary judgment motions should have been held in abeyance pending a determination by the Board as to the applicability of the Workers’ Compensation Law to plaintiff’s claims ”

This is the standard non livery W/C case.  Here, the EIP must have said to someone he was going to work, worked as a travelling salesperson or something else.  This is contrasted to the usual ATIC case where the driver seeks NF benefits, the driver is on a commercial policy and this fact in and of itself is sufficient to raise an issue of fact.

Considering the ease of which someone can seek a WC determination, I think the ATIC position may very well be meritorious.  However, should the drivers all seek a board determination and it is found that they were not in the course of employment, guess who is eating all the denied bills?  Double edged sword.

Workers Comp – trialble issue of fact.

Compas Med., P.C. v American Tr. Ins. Co., 2017 NY Slip Op 51192(U)(App. Term 2d Dept. 2017)

“Contrary to plaintiff’s argument on appeal, defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting as an employee at the time of the accident, and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), which issue must be resolved [*2]in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Arce Med. & Diagnostic Svce, 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U]; Jamaica Med. Supply, Inc., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]).”

FYI:

Here was part  of my brief on this.   I honestly forgot I wrote this, as I think I might do all of these appeals on autopilot.  Admittedly, however, the ATIC appeals always involved a level of ingenuity in forcing a square peg into a round hole.  I have since found other intellectual projects to stimulate my thinking.

(1)

“A triable issue of fact existed as to whether Appellant Assignor was in the course of employment when the accident occurred. This was supported through a hack license issued by the Department of Transportation, a commercial driver’s license that Appellant Assignor signed, a policy of
insurance covering a livery vehicle and a police report showing that Appellant Assignor was the driver of the said insured livey vehicle.

Civil Court found this proof sufficient to raise a triable issue of fact as to whether Appellant Assignor was in the course of his employment when the accident occurred. Therefore, summary judgment was granted to Respondent to the extent that the complaint would be dismissed unless
Appellant filed a prompt application with the Workers Compensation Board”

(2)

“The evidence Respondent presented was sufficient to raise a triable issue of fact for the board to decide. Initially, all of Appellant’s evidentiary objections to the admissibility of the proof are unpreserved and cannot be raised for the first time on appeal.  Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co., 2014 NY Slip Op 51810(U) (App. Tenn 2d Dept. 2014); New Way Medical Supply Corp. v. ELRAC, Inc., 46 Misc.3d 132(A)(App. Term 2d Dept. 2014). See Joe v Upper Room Ministries, Inc., 88 AD3d 963 (2d Dept. 2011)”

On the merits, the evidence was not necessarily used for the truth of the matter asserted. The policy of insurance, hack license, commercial driver’s license and police report were offered to show that Appellant Assignor represented to be hack driver who was insured to operate a livery
vehicle. The truth of the assertions in these documents was an issue to be litigated before the Workers Compensation Board.

Furthermore, an uncertified police report is utilized to determine as preliminarily inatter the existence of coverage and whether a framed issue hearing is warranted. Matter of Allstate Ins. Co. v Aizin, 102 A.D.3d 679 (2d Dept. 2013); American Intern. Ins. Co. v. Giovanielli, 72 AD3d 948 (2d
Dept. 2010; Matter of Government Eh1pls. Ins. Co. v McFarland, 286 A.D.2d 50 (2d Dept. 2001)

Here, the police report showed that Appellant Assignor was the named driver of the livery motor vehicle. The truth of these assertions will await a framed issue hearing before the Workers Compensation board.  In total, a triable issue of fact has been raised that Appellant Assignor
operated a livery motor vehicle while “employed”. This is sufficient to warrant a hearing by the Workers Compensation board to determine the veracity of the coverage dispute.

Consequently, there is a triable issue of fact as to whether workers compensation would be primary. In total, the order of Civil Court should be affirmed.”

-go me.  short, sweet and to the point.

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.”)

Suit on a workers compensation policy dismissed on lack of coverage grounds

Ultimate Health Prods., Inc. v Hereford Ins. Co., 2016 NY Slip Op 50367(U)(App. Term 2d Dept. 2016)

“Contrary to plaintiff’s contention, a lack of coverage defense may be raised without regard to any issue as to the propriety or timeliness of an insurer’s denial of claim form (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [lack of coverage defense is not precluded]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The papers submitted by defendant in support of its cross motion were sufficient to establish that the policy being sued upon was a workers’ compensation insurance policy which did not cover plaintiff’s claim to receive reimbursement of assigned first-party no-fault benefits. As plaintiff failed to demonstrate the existence of an applicable automobile insurance policy issued by defendant or to otherwise raise a triable issue of fact in opposition to defendant’s cross motion, the order is affirmed.”

It is always interesting seeing cited to insurance companies and entities that do not exist.   What happened to Home Ins Co.?  Central General in Plainview, New York have been part of North Shore/LIJ for about 20 years.

NF-2 is sufficient to remit case to the Workers Compensation Board

Compas Med., P.C. v American Tr. Ins. Co., 2015 NY Slip Op 51675(U)(App. Term 2d Dept. 2015)

“Indeed, the application for no-fault benefits form, which was signed by plaintiff’s assignor under penalty of perjury, states that the assignor was in the course of his employment when he was injured, an admission that is sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident.”

Workers Compensation Primacy

Great Health Care Chiropractic, P.C. v Lancer Ins. Co., 2014 NY Slip Op 50340(U)

All that is required is: “[a] triable issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available.”

A triable issue of fact is all that is needed to kick a WC case to the board.

Also, note that the opinion again places this Court more in line with the Appellate Division which has usually held that a certificate of conformity is well plainly not needed.

Workers Compensation defense requires substantiation

Central Radiology Servs., P.C. v First Am. Ins., 2013 NY Slip Op 51031(U)(App. Term 2d Dept. 2013)

[There was some discussion regarding procedural issues.  All I would note that is you are seeking to dismiss based upon a personal jurisdiction defense, make sure that is the relief that you seek; not for leave to to be allowed to defend the case on the merits]

“Defendant failed to demonstrate a meritorious defense as it did not submit adequate proof to raise a question of fact regarding whether the assignor had been acting within the course of her employment when the accident had occurred. The affidavit of defendant’s third-party claims administrator merely alleged in a conclusory manner that the assignor “was injured during the course of her employment and therefore, workers’ compensation was primary for this loss,” without substantiating this assertion with any evidence”

If this was a cab or livery issue, carrier should have put a declarations page, police report or some other corroborative proof to allow the case to be kicked to the board.

Police accident report sufficient to trigger Workers Comp inquiry

Parkway Pain Mgt., PLLC v American Tr. Ins. Co., 2013 NY Slip Op 50521(U)(App. Term 2d Dept. 2013)

“We find that defendant’s proof, including the police accident report, was sufficient to raise a question of fact as to whether plaintiff’s assignor had been acting as an employee at the time of the accident, which issue must be resolved by the Workers’ Compensation Board”

The police accident report was sufficient to raise an issue of fact requiring the eligibility of no-fault benefits to go before the board.