New York Long Term Disability Lawyers Get Bad Decision for Claimants from Appeals Court

Posted on July 9, 2009 by Troy Rosasco

NY Long Term Disability Attorneys  have had some pretty good days in the Second Circuit Court of Appeals recently with cases like McCauley v. Unum. Unfortunately, today the winning streak stopped cold with the mind-boggling decision in Burke v. PriceWaterhouseCoopers and Hartford Insurance, (Second Circuit, 7/9/09).

This case dealt with the issue of when the Statute of Limitations (S.O.L.) to sue in an ERISA disability claim begins to run.  The S.O.L. is important because failure to sue within the applicable time limits could cause the plaintiff to lose his right to sue in federal court regarding a long term disability claim denial. In Burke, the Court held that the S.O.L. begins to run from the date the insurance company claims that a "proof of loss" is due pursuant to a contract. 

This practically can result in the S.O.L. beginning to run even before a claim is denied!  It is an absurd result which will cause unnecessary litigation with plaintiffs in ERISA disability termination cases to having to run to court earlier than before. 

Thankfully, the Fourth Circuit in White v. Sun Life, 488 F.3d 240 (4th Cir. 2007) is now in conflict with the Burke decision. Splits among the circuit courts can often lead to US Supreme Court review so as to have uniform law nationwide on the issue.  Let's hope some sharp appellate lawyer attempts to take this silly decision up to the Supremes!

Tags:

New York Disability Lawyer Adds Informational Twitter Posts to Blog

Posted on July 7, 2009 by Troy Rosasco

OK - its time to try out this Twitter thing!  My good friend Kevin O'Keefe of LexBlog says it is an important tool to provide helpful info to my clients and readers, and I have great respect for his opinions on lawyers and Internet technology. 

If you look to the left side of our blog and scroll down a bit, you will see my last five Twitter posts.  From my perspective, Twitter allows me to quickly get out useful information and news without having to compose a full blog post. Why? You can only use 140 characters in any Twitter post, so you better get to the point fast!

For example, I broke the story about the appointment of Robert Beloten as the new NY Workers' Compensation Board Chairman on Twitter within minutes of confirming it with the NY Times, and this "tweet" ( the term Twitter uses for a "post" ) was  "retweeted" (RT) across the Internet  multiple times the same day.  News travels with lightning speed on Twitter.

In any case, we will give Twitter a "twhirl" and if our readers like it, we will continue to tweet away!

Tags: , , , ,

Judge Robert E. Beloten Appointed New York Workers Compensation Board Chairman

Posted on July 2, 2009 by Troy Rosasco

When I first started practicing workers' compensation law in the early 1990's at the Hempstead, NY hearing office,  Robert (Bob) Beloten was one of the sitting Workers' Compensation Law Judges. In many ways, I was very "green" and needed some guidance on how things "really worked" at the WCB.  Not only did Bob Beloten provide such guidance to me and other young attorneys at the time, he also made sure that our lack of experience did not harm our clients. That's what a good judge does- and Bob Beloten was certainly among the best.

When I was asked to present a seminar on workers compensation law at St. John's University Law School a few years back and needed a judge to offer his perspectives, I immediately reached out to Judge Beloten.  He graciously accepted and the law students at St. John's were treated to one of the finest seminars on judicial independence and philosophy in some time.

Bottom Line - Robert E. Beloten is a top notch workers' comp professional who has lived and breathed the workers' compensation law for most of his legal career. The NY Times has a nice article out today about Robert Beloten's appointment as WCB Chair.  Governor Paterson has made a wise choice in selecting the next Chairman of the New York State Workers' Compensation Board.  I wish him the best of luck!

Tags: , , , ,

NY Independent Medical Examiners (IME's) and Fuctional Capacity Evaluators (FCE's) Subject to Medical Malpractice Lawsuits on Disability Claims

Posted on July 1, 2009 by Troy Rosasco

How many times has one of your clients told you the IME or FCE physically hurt them during the course of a so called "independent medical exam" or "functional capacity exam"?  What if the injury is permanent?  Can they sue the IME doctor or physical therapist for medical malpractice?

According to a sharply divided NY Court of Appeals, the answer is "Yes".  On June 24, 2009, the Court in Bazakos v. Lewis, 209 NY Slip Op 05199, the majority ruled that the claim of the plaintiff was that the doctor “breached his duty "to perform the examination in a manner not to cause physical harm to the examine." and found a "limited doctor-patient relationship" between the examiner and the claimant. 

New Chief Judge Jonathan Lippman was almost apoplectic in a strongly worded dissent. The dissent argued that there was no medical treatment provided by the defendant because none was intended nor was any provided. The examination was a “disclosure device in litigation” and that the benefit was not for the plaintiff but in fact for the defendant in the underlying personal injury action. They added that the conduct of the defendant “during his examination … is not amenable to [a] description of medical malpractice within the meaning of CPLR §214-a.” Unfortunately, Judge Lipman forgets that "benefit for the defendant" ended up seriously inuring the claimant.

At the end of the day, what does this decision portend for the future of IME's in workers' comp and disability claims? First, their typical boilerplate statement at the end of their reports saying that the exam was performed, but their was no doctor /patient relationship, is now worthless. Second, far fewer IME's will lay a hand on injured workers during an IME absent a full indemnification agreement  from the insurance carrier. Many others will quit the IME business in NY all together. Third, there is no reason this decision should not apply also to physical therapists who routinely do the more intrusive (and often unsafe) Functional Capacity Examinations (FCE) in long term disability claims  (our law firm does not allow our clients to attend FCE exams). Finally, IME and PT medical malpractice rates will likely rise in New York given this new extension of liability.  

Given the scandalous expose on workers' compensation IME fraud in the NY Times recently, this decision will hopefully curb some IME abuse.  Hit  the hacks where it hurts! 

Tags: , , , , , , , ,