New York Workers' Compensation System Update 2023
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2023
Workers’
Compensation Update
COVID-19 IMPACTS ON THE NEW YORK
WORKERS’ COMPENSATION SYSTEM
OCTOBER 2023
A
TTORNEY
A
DVERTISING
This presentation is not intended to
be legal advice. It is for information only.
Attendance and participation at this
event does not create an attorney-client
relationship.
This may be considered attorney
advertising. You should not rely on it as
legal advice.
Please contact an attorney to discuss
your specific situation.
DISCLAIMER
Workers’ Compensation
Coverage Issues
Does an Employer
Need Coverage?
Virtually all employers in New York
State must provide workers’
compensation coverage for their
employees (WCL §2 and 3).
Specific Coverage Situations
“Special Employees”
Independent Contractors
Owners with No Employees
Why are workers’ compensation
premiums so high?
Classification
Experience Rating
Industry Cost Increases
How can employer reduce costs?
What are penalties for
non-coverage?
Criminal Penalties
(WCL § 52 [1] [a], [1] [b])
Civil Penalties
(WCL §52 [5])
Uninsured employers are responsible for
uninsured claims (WCL §26-a)
When does an
employer need to
report a claim?
Policy Reporting Obligations
Rule of Thumb
Paid Family Leave
Paid Family Leave
Paid Family Leave is insurance fully- funded by
employees
Employees contribute 0.373% of their
gross wages per pay period –
maximum of $333.25 annually
Provides paid time off and job protection for
employees to:
Bond with a child
Care for sick family members
Assist family when a service member is
deployed abroad
Eligibility for Paid Family Leave
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:
20 or more hours per week
For 26 consecutive weeks
Less than 20 hours per week
For 175 days Employees
Benefits of Paid Family Leave
Wage Benefits – 67% of average weekly wage
(up to cap of $1,151.16, based on NYSAWW of $1,718.15)
Job Protection – up to 12 weeks
Health Insurance
Protection from Discrimination and Retaliation
Workers’ Compensation
Issues for Employees
Working from Home
With work-related COVID claims
minimal, perhaps more important to
be aware of this risk
Working from home went from an occasional
arrangement, only used by employers in
certain industries, to nearly universal -
basically within a week in March 2020
While much work has returned to “the office,”
between home work during forced
quarantines and generally expanded work
from home that has continued, important to
be aware of law on Workers’ Compensation
claims
Coming and Going
Accidents occurring during travel to and
from work generally not covered, unless
employee does not have a “fixed” job site
If employment has employee regularly on
the road, they are an “outside employee”
and likely that travel to and from the
office or other work site will be covered
Starting Point for relevant exceptions
HILLE V. GERALD RECORDS 23 N.Y. 2D 135 (1968)
Worker killed in an automobile
accident returning home from a
recording session at a private
recording studio
Had tapes with him at the time of the
accident and home had a tape
recorder belonging to his employer
that he would frequently use in
connection with his job
Common practice of employee to take
tapes home with him and listen to
them
Court noted that while the claimant was not, in the
strict sense of the term, an “outside employee,” work
duties associated with his home were such that it could
genuinely be said that the home had become part of
the employment premises. Accident was therefore
compensable even though it occurred between the
workplace and the decedent’s home
Inquiry is whether the employee uses his home as a
“place of employment” to carry out his job
Clearly relevant to a present scenario where employees
might pick up or bring home work, certainly if they
have equipment at home supplied by employer
Fine v. S.M.C. Microsystems Corp., 75 N.Y. 2d 912 (1990)
EXPANDED THIS IDEA TO SITUATION WHERE HOME IS NOT ESTABLISHED
TO BE A USUAL “PLACE OF EMPLOYMENT”
Death claim brought after worker
killed in an automobile accident while
returning home from his workplace to
complete his work
Claimant had been permitted to work
from home in the past
Court held that while risk of travel to and from
the workplace is not usually in the course of the
employment itself, commuting between home
and employment may qualify when it is
a
specific work assignment for the employer’s
benefit
at the end of the particular homeward
trip
Bobinis v. State Ins. Fund, 235 A.D. 2d 955 (1997)
THE HOME OFFICE EXCEPTION
Claimant was an outside employee
who would represent NYSIF at
hearings before the Workers’
Compensation Board in various
locations, and also worked in the
office at least one day per week
Stopped at a shopping center to
purchase a pen that he needed for
his work on the way home, and
while there was struck by a car and
injured
Court noted: “The home office exception arises
where it is shown that an employee’s home has
become part of the employer’s premises,” but
exception is applied cautiously and generally only
after consideration of the following:
the quantity and regularity of the work
performed at home
the continuing presence of work equipment
at home
special circumstances of the particular
employment that made it necessary and not
merely personally convenient to work at home
Bobinis v. State Ins. Fund, 235 A.D. 2d 955 (1997)
DISTINGUISHED FROM SPECIFIC WORK ASSIGNMENT
While the claimant frequently
took work home, no proof that
he maintained an office at
home or that he had work
equipment in his home
Employees of this class were
encouraged to perform their
work (other than hearings) in
the office as much as possible
Court held that the
claimant’s home was not a
second employment site,
and the claim was
disallowed
Matter of IBM Corporation, 2015 NY Wrk. Comp G0778367
Claimant worked as a researcher and was continuing to work on
documents for an ongoing project at his home
Claimant was walking from his office, located at the top of his garage, into
his home kitchen when he slipped on ice and was injured
Common practice for employees to work late and bring work home with
them
Claimant had a work computer that he brought home with him, and a
monitor and docking station, purchased by his employer, in his home office
Matter of IBM Corporation, 2015 NY Wrk. Comp G0778367
N
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Claimant had the ability to work late at his employer’s primary location and
testified that “it was more convenient for him” to work from home on that
particular date.
In approximately 22 months of employment, claimant had only worked from
home approximately 15 times
WCB Panel held that because the claimant did not perform his work at home
on a regular basis, had the ability to perform the same level and quality of
work at the employer’s office location, and the employer did not provide
“substantial equipment” and did not help the claimant to set up a home
office, it was not necessary for the claimant to perform his work duties at
home and the claim was disallowed
Matter of Aftercare Nursing Services, Inc.,
2019 NY Wrk. Comp G2190841
Claimant injured when she dropped a can of fruit on her foot while
working at home
Worked as a full-time registered nurse and, while typically required to
report to the employer’s premises, she was allowed to work from home on
a daily basis
At time of the accident, claimant was “on call” and was on a work-related
call on her cell phone with a family member of two of her patients
Matter of Aftercare Nursing Services, Inc.,
2019 NY Wrk. Comp G2190841
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Board Panel ultimately disallowed the claim, noting that the injury did not
occur in the course of employment, as the claimant was not lifting or
carrying the can as part of her job duties and there was no evidence that
the claimant was required to complete the particular work phone call at
home at that time
Board Panel also noted that the record did not show that claimant used
office space and equipment at home on a regular basis
Matter of Wellpoint Inc., 2014 NY Wrk. Comp G0648884
Claimant worked from home as a customer service representative
Claimant had put fruit in the oven to dry during her lunch hour, and when the
timer went off she stood up from her desk and fell over a bag on the floor, injuring
her left arm
Matter of Wellpoint Inc., 2014 NY Wrk. Comp G0648884
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Board Panel found that even though the use of the oven was not part of the
claimant’s job duties, the accident still arose out of and in the course of employment
Since the bag that the claimant tripped over was in her home office, the claimant
was still within her work space when the accident occurred
Board Panel went further, stating that even assuming that the claimant’s actions
amounted to a deviation from employment, they were a momentary deviation while
she was in the course of employment, which was reasonable and of short duration
Blake Environmental Design Inc.,
2020 NY Wrk. Comp G2281899
Claim for overuse injuries involving the neck and right shoulder caused by the claimant
working at a desk that was too high
Worked from home ten hours per day, four days per week as a landscape designer
Claimant’s condition had improved since she replaced her original office furniture,
which she had purchased, with an adjustable desk, monitor, and new chair
Board Panel held that while the claimant was not required to use the original
equipment, and while the positioning of the original equipment was not mandated by
the employer, the desk, chair and computer were “an environmental condition specific
to the workplace,” and the injury was compensable because it resulted from use of
equipment that was a specific aspect of the work environment
Blake Environmental Design Inc.,
2020 NY Wrk. Comp G2281899
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Board Panel held that while the claimant was not required to use the original
equipment, and while the positioning of the original equipment was not mandated by
the employer, the desk, chair and computer were “an environmental condition specific
to the workplace,” and the injury was compensable because it resulted from use of
equipment that was a specific aspect of the work environment
For employees who regularly
complete their work at home on
a full-time basis, the threshold
for compensability appears to
be lower
Even if there are slight
deviations from the
employment, activities
performed in the home
office, generally
considered
compensable
Metropolitan Life Insurance, 2022 NY Wrk. Comp G2827139
Claimant worked from home as a dental customer advocate for
MetLife
Claimant was working from home during pandemic when she
tripped while walking downstairs to her home office, after she
had retrieved a VPN device
Broke her right ankle and underwent surgery
Metropolitan Life Insurance, 2022 NY Wrk. Comp G2827139
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Board found that the claimant was found to be engaged in a
regular pattern of working from home, via telecommuting, due
to the COVID-19 pandemic, and was injured when she tripped
down the stairs
Matter of Government Employees Insurance.,
2021 NY Wrk. Comp G2800004
Claimant was an insurance supervisor for GEICO
Worked in office before pandemic
In March 2020, began working from home Monday to Friday,
8:30 a.m. to 5:00 p.m.
On a Sunday afternoon, a new desk was delivered to her home.
When removing her old desk from home office, developed left
shoulder pain.
Matter of Government Employees Insurance.,
2021 NY Wrk. Comp G2800004
N
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Although the employer directed employees to work from home,
employer would not reimburse the claimant for the purchase of new
equipment or furniture.
The claimant admitted that her injury was sustained on a Sunday,
outside of her work hours and while she was moving an existing piece
of her personal furniture.
Mental Health Association., 2022 NY Wrk. Comp G3056278
Claimant worked as a case manager at home
She heard a knock on her house door. (It was her neighbor.)
“When she got up, she took a misstep and grabbed the doorknob
to catch her fall, and while doing that, she twisted her entire body
and his her right knee, right side, and head on the door.”
Mental Health Association., 2022 NY Wrk. Comp G3056278
C
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“Although answering her door was not directly related to her job
duties, this activity was not such a substantial deviation from her
employment that it would render her accident non-compensable.”
State Insurance Fund, 2022 NY Wrk. Comp G2647293
“On July 15, 2021, the claimant was telecommuting/working from
home when she leaned onto the arm of her chair and ‘heard a
snap/pop’ in her left shoulder.”
The WCLJ disallowed the case. The WCLJ found that this was
"merely an ergonomic related issue which once corrected resolved
the claimant's symptoms.“
The claimant appealed.
State Insurance Fund, 2022 NY Wrk. Comp G2647293
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“Here, the Board Panel finds that there is substantial evidence in the
record to support the establishment of the claim as an accident. The
claimant provided credible testimony that a specific incident occurred
while working on July 15, 2021. SIF agreed with the claimant that the
claimant was involved in the incident as described and there is no
dispute that there was timely notice. The Board Panel has reviewed the
record and finds that it is insufficient to the establishment of the claim
due to an ergonomic issue.”
T
h
a
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k
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QUESTIONS?
Jeffrey A. Jaketic, Esq.
Hinman, Howard & Kattell, LLP
80 Exchange Street
Binghamton, NY 13901
jjaketic@hhk.com
| P: (607) 231-6742
Explore the impacts of COVID-19 on the New York workers' compensation system in October 2023. This informative presentation covers coverage issues, employer obligations, penalties for non-coverage, reporting obligations, and insights on reducing costs. Additionally, it delves into the intricacies of Paid Family Leave, providing details on contributions, benefits, and eligibility criteria.
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Presentation Transcript
2023 Workers Compensation Update COVID-19 IMPACTS ON THE NEW YORK WORKERS COMPENSATION SYSTEM OCTOBER 2023 ATTORNEY ADVERTISING
This presentation is not intended to be legal advice. It is for information only. Attendance and participation at this event does not create an attorney-client relationship. DISCLAIMER This may be considered attorney advertising. You should not rely on it as legal advice. Please contact an attorney to discuss your specific situation.
Workers Compensation Coverage Issues
Does an Employer Need Coverage? Virtually all employers in New York State must provide workers compensation coverage for their employees (WCL 2 and 3). Specific Coverage Situations Special Employees Independent Contractors Owners with No Employees
Why are workers compensation premiums so high? Classification Experience Rating Industry Cost Increases How can employer reduce costs?
What are penalties for non-coverage? Criminal Penalties (WCL 52 [1] [a], [1] [b]) Civil Penalties (WCL 52 [5]) Uninsured employers are responsible for uninsured claims (WCL 26-a)
When does an employer need to report a claim? Policy Reporting Obligations Rule of Thumb
Paid Family Leave Paid Family Leave is insurance fully- funded by employees Employees contribute 0.373% of their gross wages per pay period maximum of $333.25 annually Provides paid time off and job protection for employees to: Bond with a child Care for sick family members Assist family when a service member is deployed abroad
Eligibility for Paid Family Leave Employees are eligible if they regularly work: Employees are eligible if they regularly work: 20 or more hours per week For 26 consecutive weeks Less than 20 hours per week For 175 days Employees
Benefits of Paid Family Leave Wage Benefits 67% of average weekly wage (up to cap of $1,151.16, based on NYSAWW of $1,718.15) Job Protection up to 12 weeks Health Insurance Protection from Discrimination and Retaliation
Workers Compensation Issues for Employees Working from Home
With work-related COVID claims minimal, perhaps more important to be aware of this risk Working from home went from an occasional arrangement, only used by employers in certain industries, to nearly universal - basically within a week in March 2020 While much work has returned to the office, between home work during forced quarantines and generally expanded work from home that has continued, important to be aware of law on Workers Compensation claims
Coming and Going Accidents occurring during travel to and from work generally not covered, unless employee does not have a fixed job site If employment has employee regularly on the road, they are an outside employee and likely that travel to and from the office or other work site will be covered
Starting Point for relevant exceptions HILLE V. GERALD RECORDS 23 N.Y. 2D 135 (1968) Worker killed in an automobile accident returning home from a recording session at a private recording studio Had tapes with him at the time of the accident and home had a tape recorder belonging to his employer that he would frequently use in connection with his job Common practice of employee to take tapes home with him and listen to them Court noted that while the claimant was not, in the strict sense of the term, an outside employee, work duties associated with his home were such that it could genuinely be said that the home had become part of the employment premises. Accident was therefore compensable even though it occurred between the workplace and the decedent s home Inquiry is whether the employee uses his home as a place of employment to carry out his job Clearly relevant to a present scenario where employees might pick up or bring home work, certainly if they have equipment at home supplied by employer
Fine v. S.M.C. Microsystems Corp., 75 N.Y. 2d 912 (1990) EXPANDED THIS IDEA TO SITUATION WHERE HOME IS NOT ESTABLISHED TO BE A USUAL PLACE OF EMPLOYMENT Death claim brought after worker killed in an automobile accident while returning home from his workplace to complete his work Claimant had been permitted to work from home in the past Court held that while risk of travel to and from the workplace is not usually in the course of the employment itself, commuting between home and employment may qualify when it is a specific work assignment for the employer s benefit at the end of the particular homeward trip
Bobinis v. State Ins. Fund, 235 A.D. 2d 955 (1997) THE HOME OFFICE EXCEPTION Claimant was an outside employee who would represent NYSIF at hearings before the Workers Compensation Board in various locations, and also worked in the office at least one day per week Stopped at a shopping center to purchase a pen that he needed for his work on the way home, and while there was struck by a car and injured Court noted: The home office exception arises where it is shown that an employee s home has become part of the employer s premises, but exception is applied cautiously and generally only after consideration of the following: the quantity and regularity of the work performed at home the continuing presence of work equipment at home special circumstances of the particular employment that made it necessary and not merely personally convenient to work at home
Bobinis v. State Ins. Fund, 235 A.D. 2d 955 (1997) DISTINGUISHED FROM SPECIFIC WORK ASSIGNMENT While the claimant frequently took work home, no proof that he maintained an office at home or that he had work equipment in his home Employees of this class were encouraged to perform their work (other than hearings) in the office as much as possible Court held that the claimant s home was not a second employment site, and the claim was disallowed
Matter of IBM Corporation, 2015 NY Wrk. Comp G0778367 Claimant worked as a researcher and was continuing to work on documents for an ongoing project at his home Claimant was walking from his office, located at the top of his garage, into his home kitchen when he slipped on ice and was injured Common practice for employees to work late and bring work home with them Claimant had a work computer that he brought home with him, and a monitor and docking station, purchased by his employer, in his home office
Matter of IBM Corporation, 2015 NY Wrk. Comp G0778367 NOT Compensable! NOT Compensable! Claimant had the ability to work late at his employer s primary location and testified that it was more convenient for him to work from home on that particular date. In approximately 22 months of employment, claimant had only worked from home approximately 15 times WCB Panel held that because the claimant did not perform his work at home on a regular basis, had the ability to perform the same level and quality of work at the employer s office location, and the employer did not provide substantial equipment and did not help the claimant to set up a home office, it was not necessary for the claimant to perform his work duties at home and the claim was disallowed
Matter of Aftercare Nursing Services, Inc., 2019 NY Wrk. Comp G2190841 Claimant injured when she dropped a can of fruit on her foot while working at home Worked as a full-time registered nurse and, while typically required to report to the employer s premises, she was allowed to work from home on a daily basis At time of the accident, claimant was on call and was on a work-related call on her cell phone with a family member of two of her patients
Matter of Aftercare Nursing Services, Inc., 2019 NY Wrk. Comp G2190841 Not Compensable! Not Compensable! Board Panel ultimately disallowed the claim, noting that the injury did not occur in the course of employment, as the claimant was not lifting or carrying the can as part of her job duties and there was no evidence that the claimant was required to complete the particular work phone call at home at that time Board Panel also noted that the record did not show that claimant used office space and equipment at home on a regular basis
Matter of Wellpoint Inc., 2014 NY Wrk. Comp G0648884 Claimant worked from home as a customer service representative Claimant had put fruit in the oven to dry during her lunch hour, and when the timer went off she stood up from her desk and fell over a bag on the floor, injuring her left arm
Matter of Wellpoint Inc., 2014 NY Wrk. Comp G0648884 Compensable! Compensable! Board Panel found that even though the use of the oven was not part of the claimant s job duties, the accident still arose out of and in the course of employment Since the bag that the claimant tripped over was in her home office, the claimant was still within her work space when the accident occurred Board Panel went further, stating that even assuming that the claimant s actions amounted to a deviation from employment, they were a momentary deviation while she was in the course of employment, which was reasonable and of short duration
Blake Environmental Design Inc., 2020 NY Wrk. Comp G2281899 Claim for overuse injuries involving the neck and right shoulder caused by the claimant working at a desk that was too high Worked from home ten hours per day, four days per week as a landscape designer Claimant s condition had improved since she replaced her original office furniture, which she had purchased, with an adjustable desk, monitor, and new chair Board Panel held that while the claimant was not required to use the original equipment, and while the positioning of the original equipment was not mandated by the employer, the desk, chair and computer were an environmental condition specific to the workplace, and the injury was compensable because it resulted from use of equipment that was a specific aspect of the work environment
Blake Environmental Design Inc., 2020 NY Wrk. Comp G2281899 Compensable! Compensable! Board Panel held that while the claimant was not required to use the original equipment, and while the positioning of the original equipment was not mandated by the employer, the desk, chair and computer were an environmental condition specific to the workplace, and the injury was compensable because it resulted from use of equipment that was a specific aspect of the work environment
For employees who regularly complete their work at home on a full-time basis, the threshold for compensability appears to be lower
Even if there are slight deviations from the employment, activities performed in the home office, generally considered compensable
Metropolitan Life Insurance, 2022 NY Wrk. Comp G2827139 Claimant worked from home as a dental customer advocate for MetLife Claimant was working from home during pandemic when she tripped while walking downstairs to her home office, after she had retrieved a VPN device Broke her right ankle and underwent surgery
Metropolitan Life Insurance, 2022 NY Wrk. Comp G2827139 Compensable! Compensable! Board found that the claimant was found to be engaged in a regular pattern of working from home, via telecommuting, due to the COVID-19 pandemic, and was injured when she tripped down the stairs
Matter of Government Employees Insurance., 2021 NY Wrk. Comp G2800004 Claimant was an insurance supervisor for GEICO Worked in office before pandemic In March 2020, began working from home Monday to Friday, 8:30 a.m. to 5:00 p.m. On a Sunday afternoon, a new desk was delivered to her home. When removing her old desk from home office, developed left shoulder pain.
Matter of Government Employees Insurance., 2021 NY Wrk. Comp G2800004 Not Compensable! Not Compensable! Although the employer directed employees to work from home, employer would not reimburse the claimant for the purchase of new equipment or furniture. The claimant admitted that her injury was sustained on a Sunday, outside of her work hours and while she was moving an existing piece of her personal furniture.
Mental Health Association., 2022 NY Wrk. Comp G3056278 Claimant worked as a case manager at home She heard a knock on her house door. (It was her neighbor.) When she got up, she took a misstep and grabbed the doorknob to catch her fall, and while doing that, she twisted her entire body and his her right knee, right side, and head on the door.
Mental Health Association., 2022 NY Wrk. Comp G3056278 Compensable! Compensable! Although answering her door was not directly related to her job duties, this activity was not such a substantial deviation from her employment that it would render her accident non-compensable.
State Insurance Fund, 2022 NY Wrk. Comp G2647293 On July 15, 2021, the claimant was telecommuting/working from home when she leaned onto the arm of her chair and heard a snap/pop in her left shoulder. The WCLJ disallowed the case. The WCLJ found that this was "merely an ergonomic related issue which once corrected resolved the claimant's symptoms. The claimant appealed.
State Insurance Fund, 2022 NY Wrk. Comp G2647293 The claimant wins! Compensable! The claimant wins! Compensable! Here, the Board Panel finds that there is substantial evidence in the record to support the establishment of the claim as an accident. The claimant provided credible testimony that a specific incident occurred while working on July 15, 2021. SIF agreed with the claimant that the claimant was involved in the incident as described and there is no dispute that there was timely notice. The Board Panel has reviewed the record and finds that it is insufficient to the establishment of the claim due to an ergonomic issue.
Thank you Thank you Jeffrey A. Jaketic, Esq. Hinman, Howard & Kattell, LLP 80 Exchange Street Binghamton, NY 13901 jjaketic@hhk.com | P: (607) 231-6742 QUESTIONS?
