Workers Compensation - Loss Transfer

Saturday, January 28, 2006 | 0

Workers Compensation - Loss Transfer

by Larry Rogak

Does a workers compensation insurer (or self-insurer) have a right to recover WC medical and lost wage benefits from the no-fault carrier of a vehicle in which a worker is injured during the course of his employment?

Yes, says the New York State Insurance Department, in certain circumstances.

"No fault coverage is not primary when an employee receives injuries as a result of a motor vehicle accident while in the course of their employment," wrote the Insurance Department's General Counsel in a position letter dated 3 January 2003. "In that instance, coverage is provided under the Workers Compensation Law, which coverage is primary in lieu of no-fault benefits."

But Insurance Law section 5105 (the loss transfer statute) provides that no-fault and workers comp carriers have "the right to recover the amount paid from the insurer of any other covered person" when the other person was at fault for the accident and would have been liable to pay damages in a lawsuit to the injured party. However this right of recovery exists only when one of the vehicles in the accident weighs over 6500 lbs or is used principally to transport people or property for hire.

"It must be concluded that workers compensation medical and loss wage benefits, paid by workers compensation insurers to injured employees, are recoverable in loss transfer arbitration when one of the vehicles involved weighs in excess of 6500 lbs or is used principally for transporting persons or property for hire."

BUILDING'S BALCONY IS NOT A "SCAFFOLD," DOES NOT SUPPORT SCAFFOLD LAW CLAIM

Caruana v. Lexington Village Condominiums at Bay Shore, 2005 NY Slip Op 08940, Index no. 21059-1997 (2d Dept 2005)

When is a scaffold not a scaffold? When it is a permanent part of a building. As a result, a workman who was using a building balcony as a scaffold does not have a case under the Scaffold Law, held the Second Department.

Plaintiff Paul Caruana was injured when a condominium balcony, from which he was discarding debris into a dumpster on the ground, collapsed. The plaintiffs alleged that a violation of Labor Law section 240 (1) occurred because the balcony was being used as a scaffold. The Supreme Court, Queens County, granted summary judgment to defendants, dismissing the Scaffold Law cause of action. The Appellate Division affirmed.

"The owners established their entitlement to judgment as a matter of law. Labor Law section 240(1) is inapplicable because the balcony is not a scaffold, but rather a permanent appurtenance to the building," ruled the Court.

Article by Larry Rogak. Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

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