HAMBERGER & WEISS LLP defeats claim for Concurrent Employment wages by proving claimant was an independent contractor working for an out-of-state employer.

HAMBERGER & WEISS LLP defeats claim for Concurrent Employment wages by proving  claimant was an independent contractor working for an out-of-state employer.


The claimant, a bus aide, suffered a low back and left leg injury as a result of the operation of the bus.  In addition to his work as a bus aide, the claimant worked as a debt collector for two out of state employers. The  inclusion of these wages would have significantly increased  our  client’s indemnity exposure on the file. Through testimony of the claimant, our attorney was able to elicit that the claimant was provided a 1099-NEC and not a W-2.   In addition, the claimant was compensated differently from other employees, within these two companies.  Further, the claimant was not provided benefits or health insurance, like other employees within the companies.    We were able to prove that the claimant was an independent contractor at the out-of-state employers. Accordingly, his wages from those employers came from employment that is not considered “covered employment” as defined by section 14(6) of the Workers’  Compensation Law.

We presented a Memorandum of Law with extensive case law supporting our position proving that the claimant’s wages from his other employments are not included in his average weekly wage on his New York workers’ compensation claim. After presenting our Memorandum of Law to the Law Judge and claimant’s attorney, the claimant dropped the claim prior to litigation saving our client additional litigation costs. Our summer law clerk, Francesca Manzella’s excellent legal research assisted our partner, John Coyle,  in securing the win.

This case is a good example of how a proactive, well researched position can persuade a claimant’s counsel not to pursue a claim which he/she is likely to lose in front of the Law Judge thereby avoiding substantial litigation costs and appeals.

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