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H&W New York Workers' Compensation Defense Newsletter
Vol. 7, Issue 2
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Becker and Forth Elected to Partnership
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We are pleased to announce that two of our attorneys, Ellen Becker and Lynn Forth, have been elected as partners in the firm, effective January 1, 2023.
Ellen has been exclusively practicing workers‘ compensation law since her admission to the New York State bar in 1994. She is the past chair and a current member of the Erie County Bar Association Workers‘ Compensation committee and has presented numerous lectures at continuing legal education events for the Bar Association.
Ellen is resident in our Buffalo office. Outside of her law practice, Ellen serves on the Board of Directors for The Arc Erie County (formerly Heritage Centers), a not-for-profit company dedicated to creating opportunities for people with intellectual and developmental disabilities.
Lynn has been practicing workers’ compensation defense exclusively since 1992. in 2018 she was selected by the Daily Record as a “Top Women In Law” recipient for Western New York for, “ . . . making notable contributions to the legal profession, while inspiring positive change in the community.” This award recognized her ability to litigate and resolve complex legal matters in the area of workers’ compensation along with her dedication to mentoring young attorneys in this area of practice over the course of her legal career.
Lynn is resident in our Rochester office. She is active in the Rochester community through the contribution of her time to non-profit charities that serve women and children. She is on the Board of Bethel Express, an urban youth ministry and is also a past Board member of the Junior League of Rochester.
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H&W Obtains Fraud Finding; Claimant Subsequently Criminally Convicted
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Our partner, Rich Holstein successfully litigated a WCL §114-a fraud case against a claimant in March 2020, obtaining a finding from the Board that the claimant violated WCL §114-a. On 12/20/2022, that claimant, former NFTA bus driver Antoinette Laney, was sentenced to five years of probation after pleading guilty to one count of Grand Larceny in the Fourth Degree in September 2022 for fraudulently obtaining over $30,000 in workers’ compensation benefits between September 2018 and February 2020. As part of her guilty plea, Laney is required to pay full restitution to the employer.
The claimant was a bus driver, who alleged injuries to her low back, left, hip, and both knees stemming from a 5/15/17 injury. An investigation revealed that she misrepresented the severity of her medical impairment and was self-employed. She both worked for Instacart and sold shoes online through her own company while collecting workers’ compensation benefits and affirming to the employer that she had not returned to work.
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Appellate Division Rules That Claimant Must Prove Lost Earnings Not Solely Due to Unrelated Factors
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On 12/15/22 the Appellate Division, Third Department decided Wein v. Burnt Hills Ballston Lake Schools. This decision reaffirms the rule holding that a claimant who voluntarily separates from the labor market is not eligible for indemnity awards merely by virtue of having reattached to the labor market. Rather, the claimant must also prove that their reduction in earnings or lost time is not due solely to factors unrelated to their work injury.
In this case, claimant stopped working due to a medical condition unrelated to her workplace injuries, and then retired without ever returning to work. She subsequently reattached to the labor market by obtaining part-time employment. The carrier opposed her claim for indemnity benefits, arguing that claimant had made no efforts to find full-time work. Notably, claimant had no causally related medical restrictions limiting her to part-time employment. Claimant's trial testimony confirmed that she made no efforts to find additional work above and beyond her part-time position, and the record contained no evidence suggesting any employer refused claimant employment due to her causally related physical restrictions. The Board denied her claim for awards
Claimant appealed, and the Appellate Division affirmed, holding that claimant's admissions at trial showing no effort at vocational retraining and no effort to find full-time employment, combined with the lack of any evidence that she had been refused employment due to her causally related physical restrictions, failed to meet her burden of proving that her reduction in earnings was not due solely to factors unrelated to her compensable injuries.
This decision, combined with the court's previous holdings over the past several years on this issue, make it crystal clear that a voluntarily separated or voluntarily retired claimant is not automatically eligible for indemnity awards merely by virtue of reattaching to the labor market. The claimant must also prove that any reduction in earnings or lost time is not due solely to factors unrelated to their compensable injuries.
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Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com
Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com
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