Attorney Carolyn P. Kelly – Reported Cases

4/10/2010

Attorney Carolyn P. Kelly has practiced law in the area of Workers’ Compensation and in particular under the Longshore and Harbor Workers’ Compensation Act for over 20 years. She has made a significant contribution to the development of Longshore case law in the Second Circuit having represented Claimants in some of the most frequently cited cases. In Barscz v. Director, Office of Workers’ Compensation Programs and Electric Boat Corporation 486 F.3d 744 (2d Cir. 2007) the court reversed the decision below and determined that an employee’s disability benefits could not be credited against a death claim. It further held that the employer bears the burden of establishing the apportionment of any State settlement claim to offset a death claim. The case of Pietrunti v. Director, Office of Workers’ Compensation Programs 119 F.3d, 1035 (2d Cir. 1997) stands for the principle that treating physicians are accorded special deference. In LaFaille v. Benefits Review Board 884 F.2d 54 (2d Cir. 1989) the Court confirmed that in order to establish a potential loss of wage earning capacity, the post injury wages must be adjusted backward in time to account for post injury inflation and then compared to the pre-injury average weekly wage. This case also established that a nominal award (de minimus) may be used to preserve a possible future award where there is a significant physical impairment without a present loss of wage earning capacity. In Palombo v. Director, Office of Workers Compensation Programs 937 F.2d 70 (2d Cir. 1991) the Court adopted the three part analysis of the Fifth Circuit in determining when total disability becomes permanent. When a claimant shows he can no longer perform his usual job, a prima facie case for total disability is established. Then the burden shifts to the employer to establish the availability of suitable alternate employment. A claimant can rebut the employer’s showing of suitable alternate employment and retain his eligibility for total disability benefits if he shows he diligently pursued employment opportunities, but was unable to secure a position.

Other reported cases are listed below:

• Barscz v. Director, OWCP, 486 F.3d 744 (2nd Cir. 2007)
• Pietraroia v. Northeast Utilities 254 Conn 60, 756 A.2d 845 (2000)
• Blanding v. Director, OWCP, 186 F.3d 232 (2nd Cir. 1999)
• Benlock v. New Haven Terminal, 48 Conn. App. 250, 706 A.2d 1390 (1998)
• Pietrunti v. Director, OWCP, 119 F.3d 1035 (2nd Cir. 1997)
• Palombo v. Director, OWCP, 937 F.2d 70 (2nd Cir. 1991)
• Lozada v. Director, OWCP, 903 F.2d 168 (2nd Cir. 1990)
• Lafaille v. Benefits Review Board, USDOL, 884 F.2d 54 (2nd Cir. 1989)