1. Business

Lost Wages And First Party: To Arbitrate Or To Litigate

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I was having a conversation with a nameless friend and we were discussing the issue of handling lost wage no-fault cases as an Applicant. It had me thinking as i have had quite a bit of experience and I wish to share some of my 1. thoughts.

The NF-6 worker. There are only two type of first-party cases as an Applicant I would arbitrator. One is the straight hourly or salary NF-6 worker who has good meds, disability notes and could not return to his/her job following the accident. Strangely enough, those are not the cases I end up retaining (albeit I handle very few wage cases per year). But this is the case that I would always throw into arbitration because it is clean, easy and will 90% of the time be successful.

Evidentiary issue worker. These are cases involving the situation where the proofs that are necessary to prove the lost wage or first-party billing case are not in proper form and may never be in proper form. Consider lost wages from foreign employment, where the proofs are in a different language and cannot be certified. I had one of these cases, properly placed into arbitration and was successful. This type of case will give you grief in court.

Issues as to abnormal medicals: I have two cases (both affirmed under substantial evidence) where placing that matter into arbitration became problematic. One was the Miller case. . Miller had an interesting medical condition with his hand (a Dubyons’s nodule) that got progressively worse over time. Therefore, it was quite plausible to have a”normal IME” yet to have a disability 6-12 months post IME. He sought to recover medicals that were liened from his PI case and lost wages. The arbitrator held up the IME next to the “contemporaneous” notes and found against Applicant. Very mechanistic approach that works on volume provider cases; terrible in what I call real life cases. In retrospect, the case would have settled in litigation or a decent jury verdict would have been obtained in court. So the lesson here is to avoid anything that falls outside of the cookie cutter medical paradigm because the risk does not match the reward.

Issues as to non W-9 workers: This is also another type of case that can cause problems. This is the NF-7 abnormal employment situation. The law is a bit fuzzy on wage proof in no-fault and you may end up with an award that makes you scratch your heard. We saw this in Findlay, another questionable decision. Claimant had a contract of employment and presented proofs that the carrier honored this rate of pay in payment pre-IME and presented an NF-7 and other information to substantiate the “wage”. Arbitrator went a different direction and it was eventually affirmed. Again, on a volume client, this type of decision becomes a “shoulder shug” – for someone who was shortchanged on a PI case and seeks their wages, it is signification.

Issues as to strange wage loss: This is another one that is interesting. Client had to forego job opportunity due to injury and seeks difference between opportunity and current salary. Totally outside of the box and the few decisions I have seen are likewise a bit strange. Client will do better in court on this one.

Issues as to strange causation: I had another case where the issue of causation was “strange”, yet the insurance carrier recognized it and the IME doctors recognized it. The arbitrator went out on his own -because it was not a normal if x then y situation – and ruled adverse to the client. The Appellate Division even said at oral argument it was a bad decision – the phrase from Justice Mastro was “terrible decision”, yet the panel affirmed based upon substantial evidence. It is important to triage cases and understand that if you are outside the normal paradigm, do you want an arbitrator ruling on the case?

Prologue: I have also seen arbitration decisions on strange issues that have definitely gone in pro Applicant ways (as both defendant and Applicant) – so I do not mean to raise doom and gloom. But – consider this: If you have a niche issue, don’t you want to preserve you Appellate remedies? Arbitration strips away all meaningful review – make sure the issue you seek to present fits within the boxes. Don’t forget to thank me later.



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