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The Industrial Injuries Board incorrectly ignored evidence of fraud



After the Industrial Injuries Board decided, among other things, that the application from Everest National Insurance Company was obliged to pay benefits, it appealed and requested a review of the decision of the Industrial Injuries Judge that its action was too late, and from a decision from the said Board of Directors, filed on October 28, 2019, which rejected an application from the Everest National Insurance Company for reconsideration and / or full board review. Everest appealed because it was not properly notified, was not the insurer and because the alleged injured worker committed a fraud.

In the case of claims by Michel Salinas v. Power Services Solutions LLC et al., And South Side Services Inc. et al. Workers & # 39; Compensation Board, Nr. 2021-0732, New York Supreme Court, Third Department (December 23, 2021), the Court of Appeal resolved the dispute. syndrome, severe depressive disorder and various other injuries. The plaintiff's employer was identified during a series of hearings and through a series of commissioned investigations, and WCLJ finally found that the plaintiff was employed by Salvador Almonte, the owner and operator of Power Services Solutions LLC, among others, and that the accident occurred while the applicant was working for Kingdom Associates. Inc., which had a contract with Power Services.

The Occupational Injuries Insurer for the Kingdom, Starr Indemnity & Liability Company, eventually submitted a certificate of insurance to WCLJ indicating that Everest National Insurance Company provided coverage to Power Services at the time of the accident. . The WCLJ determined that Everest needed to be notified, and a copy of the decision was sent to Everest. Everest failed to appear at that hearing, and WCLJ eventually fired several other prospective employers and carriers and found that Power Services was the right employer and that Everest was the right carrier.

A copy of the decision of February 14, 2019. Recall of these finds were also sent to Everest. However, that decision continued to classify the Kingdom as the employer and Starr as the carrier, reflecting the same on the recipient side where Everest was still listed as an interested party only. On March 7, 2019, the Industrial Injuries Board submitted a corrected EC-1 form showing that Everest was the correct carrier for the present claim.

Everest and its third-party administrator appealed to the Board on May 23, 2019, claiming, among other things, that the notice sent to that for the hearing on 11 February 2019 was deficient and that it never provided coverage for Power Services. A panel of the board rejected the appeal on the grounds that it was inappropriate, and found that although the communication question could possibly excuse Everest's absence from the hearing on 11 February 2019, no explanation was given for its delay in appealing the 14 February 2019 decision, which Everest did not have. denied that he received. At the same time, on or around 5 September 2019, Almonte was prosecuted for its alleged participation in a comprehensive insurance fraud program, which specifically involved the creation and issuance of false insurance certificates. By decision submitted on October 28, 2019, the entire Board rejected Everest's application, and these appeals followed.

ANALYSIS

A party applying for review of a WCLJ's decision must submit an application for review to the Board within 30 days of filing. the decision. The Board is given a wide margin of discretion to accept or reject such an application as inappropriate, and in the absence of abuse of this space, the Board's decision will not be upset

In the opinion of the Court of Appeal, the Board has abused this margin of discretion.

] The early stages of this claim were remarkably protracted, and Everest was brought into the trap a year and a half after the claim was filed, without the first six hearings and all inquiries into the applicant's actual employer and coverage issues. Correspondence sent to Everest, including the decision of February 14, 2019, continued to face the fact that Kingdom and Starr were responsible for this claim.

It is only in the middle of a paragraph on the other side of the decision that Power Services is named as employer and Everest as carrier. The board did not update its own file to reflect the correct operator until about a month after the decision in February, and although it may have given Everest several days to appeal in a timely manner, there was no indication or statement in the minutes before the court that corrected the notice of composition of the case was also sent to Everest.

It is not difficult to understand why Everest, which received either defective or face-to-face correspondence from the board regarding this claim, was not immediately aware that a policy attributed to it – covering an employer with whom it had never agreed – was in question. [19659007] It is important that the evidence provided by Everest in support of its administrative appeal strongly suggests that the insurance certificate submitted to the Board was not genuine, and, based on the limited history we have before us, the certificate appears to have been important, if not the only, factor in WCLJ's decision on Everest. In other words, Everest has drawn the board's attention to the strong possibility that it has issued a decision that may be based entirely on fraudulent documentation.

Although the Court of Appeal was aware that the Board has a wide margin of discretion in this matter and will generally not do so. considered to have abused this discretion by strictly applying its own rules, the court found that it could not discern any rational reason why the board should refrain from investigating when presented with legitimate, currently uncontested evidence that a fraud was committed against

It seems unlikely that a criminal case involving allegations of pervasive fraud with occupational injury insurance was unknown to the board at the time of its full board decision or, at least, at the time of the board's panel decision setting the record for this appeal – issued over a year after Almonte's highly publicized.

Under these facts, it is not an adequate answer to say that this determination is usually discretionary and the very purpose of the discretion given to the Board is to grant relief in circumstances such as these.

Although Almonte's criminal charges were not part of the administrative register, they are a matter of public registration and need not be ignored. Based on the above, the Court of Appeal found that the Board abused its discretion when rejecting Everest's application for review. & # 39; Compensation Board for further proceedings not inconsistent with the decision of this Court. insurance fraud, the alleged injured employee was accused of fraud in a very public manner, and the submissions submitted by the board to Everest tricked it into believing that it was not involved. The Board's abuse of discretion required a reversal and enabled the Board to rectify its error. handling of insurance claims, bad faith and insurance fraud almost equally for insurers and policyholders.

He also acts as an arbitrator or media for insurance-related disputes. He practiced law in California for more than 44 years as a lawyer for insurance coverage and claims management and more than 54 years in the insurance industry.

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