201705.15
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Five Issues the NYS WCB Doesn’t Care About in the Claim Against You

Because of my 15 years litigating workers’ compensation claims in New York, I still get referrals from other attorneys who represent employers. It can often be quite difficult delivering bad news to a small business owner who tried to follow the many laws that govern his or her industry, and I can typically hear a certain disbelief in their silence. It’s hard to imagine that the issues we think are important are not important to the New York State (“NYS”) Workers Compensation Board (“WCB”), but there are actually some good reasons for their views, even if you aren’t aware of them or disagree with them.

  1. The NYS WCB doesn’t care about your employee’s performance. The issue the Board is interested in is whether the employee was injured in the course and scope of employment. Since your employees likely work “at-will” and you have the right to fire them if they are underperforming, the Board will assume you were getting sufficient benefit from the employee’s services, if you kept employing her, especially when you employed her on the date she was hurt.
  2. The NYS WCB does not care if you had good intentions and tried to keep your employees from getting injured. It’s wise for you to have a safety program. It helps protect your employees from injury, and it helps you avoid the cost of injury. The Board is only interested in whether you were insured, by which carrier, and did your employee get hurt in the course and scope of employment.
  3. The NYS WCB does not care if your employee was negligent in causing his own injury. Workers Compensation is effectively a No-Fault benefit, much like the no-fault benefits you receive when you’re in a motor vehicle accident–without any analysis of fault. Again, the issue for the Board is whether your employee was injured in the course and scope of employment.
  4. The NYS WCB does not care about your employee’s mental status, home life, drug use, or unrelated medical and psychological conditions (except to the extent they are contributing to the employee’s disability). As with performance, you have the power to terminate the employment. When you do not, the Board will presume you were getting enough of a benefit from the employee’s services to keep working with him. Thus, your claims that he is a terrible person will be valueless, and they might make you look like the terrible person.
  5. The NYS WCB does not care about your employee’s immigration status (except to the extent it affects her lost wage earning capacity). Again, you will be deemed to gain enough from the employment relationship to engage in it and continue it. So, it won’t matter as much that your employee broke the law by working without authorization. You broke the law, too, and your unclean hands balance those of your employee.

In short, as the employer, you are presumed to have the greater knowledge about employment laws. You are expected to benefit from the services of your employees and to protect that investment. When you do not, the Board might punish you for failing to exhibit best business practices and a genuine concern for the human beings who work for you.

NOTE: This post is a general overview of the defenses to workers’ compensation (“WC”) penalties for failure to secure WC insurance. It is not legal advice, and there is certainly no guarantee that any of the actions detailed above will generate a similar or specific result. Past success is never a guarantee of a future outcome. If you require information or advice applied to your unique situation, please make an appointment to discuss it with an attorney. Don’t rely solely on what you read on the Internet.

Nance L. Schick, Esq. is an attorney, arbitrator, and mediator based in New York City. She is the founder of The Law Studio of Nance L. Schick. Her holistic, integrative approach draws from her experience as a human resources supervisor, as well as her legal and EEOC training. She is creator of the Third Ear Conflict Resolution process, author of DIY Conflict Resolution: Seven Choices and Five Actions of a Master, and an award-winning entrepreneur, who has been acknowledged by the New York Economic Development Corporation/B-Labs (Best for NYC 2015 finalist), U.S. Chamber of Commerce (2015 Blue Ribbon Small Business), Enterprising Women Magazine (Honorable Mention, 2014 Woman of the Year awards), and Urban Rebound NY/Count Me In (2013 Pitch Competition finalist). Most recently, she attained her certificate in Ethno-Religious Conflict Mediation and now serves as the Main ICERM Representative to the United Nations.