WELCOME

New York Workers' Compensation is an intricate area of law that is often subject to a number of misconceptions. This site is intended to help readers seeking clarification on the topic of NY Workers' Comp. Whether you are an injured worker lost amidst the complexities of Workers' Comp, a doctor who is not sure how to properly handle a Workers' Comp patient's file, or simply a curious New Yorker who worries about what would happen if you were ever injured on the job, I hope that the content of this site will deliver the answers you seek, even to questions you didn't know to ask.



It is my pleasure to welcome you into the world of New York Workers' Compensation. I hope you enjoy your visit, spread the word, and come back soon.





Best regards,

Camila P. Medici, Esq.






Friday, May 17, 2013

CAN I SUE THE INSURANCE CARRIER/ADJUSTER FOR INTENTIONAL ACTS THAT INJURE ME EMOTIONALLY AND/OR PHYSICALLY?

Recently I was contacted by a gentleman who was referred to me by a friend of mine.  He had suffered an injury to his foot and had recently had surgery, and shortly after surgery, while his own doctor was not releasing him back to work, he was contacted by the insurance carrier's adjuster and told that if he did not return to work he might lose his job.  Afraid, he immediately went to his doctor and convinced his doctor to release him back to work against his doctor's will.  The doctor reluctantly released him back and as soon as he returned to work, still unable to perform his work duties due to the recent surgery he had undergone, he got accidentally stepped on hard by a co-worker and his condition was aggravated.  Needless to say he had to once again stop working and now his condition is even worse than before, and his recovery will take significantly longer which will cause him to stay out of work indefinitely at this point. 

Although he had a comp Attorney he mentioned he was unhappy with the communication they had.  He felt like his Attorney was not representing him as well as he could or should, and he wanted someone new.  I was more than willing to help him, however, it seemed his only objective fell outside the scope of my representation.  All he wanted was to sue the Carrier/adjuster for "coercing him" into returning to work before he was medically able and consequently aggravating his condition.  I told him that not only was that a very difficult action to bring, it was also not something I would be able to help him with since I focus primarily in workers' comp claims and intentional torts are not covered under comp law.  But I reassured him that he need not worry about his claim because the getting stepped on incident constituted a new accident, and he would eventually receive the appropriate award for that injury and the aggravation of his condition.  Not only that, with proper medical records he would be paid while he was out of work, and regardless of whether or not his employer kept his position open and waiting for him, he would always be covered by his employer's insurance carrier. 

He insisted that all he wanted was to sue the Carrier, and got frustrated that I told him his prospective victory was unlikely if he was able to even find an attorney that would be willing to bring forth the action.  So, despite my honesty, he decided not to contact me anymore.  It's just one of those things about being an honest lawyer, sometimes your client just wants you to tell him what he wants to hear and is mad at you for the truth you deliver. 

I decided to write this entry in order to help enlighten those claimants who may have gone or are going through similar circumstances.  What happens if the claimant can show that the insurance carrier or its representatives acted intentionally to cause injury, such as emotional distress?  Though these claims are not barred they are very difficult to prove.  Intentional injuries are not covered by Workers' Compensation Law, and though an employee may bring an action for these wrongdoings against an offending employer or insurance company it will have to be done in civil court, not at a comp hearing.  

In order to prevail the claimant is gonna need to show a lot more than just bad faith in the part of the insurance company or employer.  He/she must show that the adjuster's or the employer's conduct was so extreme and outrageous that it exceeded all bounds of decency to be deemed utterly intolerable in civilized society.  That's very difficult to show and highly subjective. 

It is important to highlight the following truths: 1) Absent a contract otherwise, an employer may terminate an employee for any non-discriminatory reason (the discriminatory reasons are the ones banned by Federal Law and NY State, such as age, gender, race, religion, sexual orientation and disability).  Though an employer cannot terminate an employee as retaliation for filing a workers' compensation claim, the employer may terminate the employee simply because the employer needs someone to fill in the position that the out of work employee is unable to perform.  In other words, the claimant's employer does not need to keep the position open for the claimant while the claimant is recovering from injury.  It would be unfair to hold an employer to that when the employer probably needs someone to perform those tasks and its business cannot suffer simply because the employee was injured at work and can no longer perform the task either temporarily or permanently.  2) A claimant cannot sue the carrier or the employer for intentional torts under comp law, and even if they can do so civilly it is do difficult to prove that it either will be hard to find an attorney to represent that claimant in such an action or the claimant will have to pay the attorney hourly only to likely lose at the end. 

So what should a claimant do in a situation where either the employer or the carrier says the claimant will be terminated if he/she does not return to work immediately?  Rely on the doctor's opinion and put their health first.  It is a claimant's choice to let him or herself feel coerced to return to work before he/she is medically able to.  The carrier will have to pay for the medical expenses and the wage benefits anyway, no matter whether or not the claimant continues to be employed with that employer.  Of course that there are other issues like general health care benefits (for those claimants and claimants' families that get that from the employer), pensions, and prospective employment upon medical improvement.  Those are important but not as important as the claimant's health.  Returning to work before one is able to will only result in a worse situation, either because the condition will deteriorate causing the claimant to maybe enter an irreversible health condition or because due to an inability to perform the duties as he/she used to the Claimant will end up being terminated anyway. 

For more information visit www.medicilaw.com


Wednesday, February 6, 2013

A Finding of Involuntary Retirement Prevents a Finding of Voluntary Withdrawal from the Labor Market

This is a question I get very often: If an injured worker was classified with less than a total permanent disability (a.k.a. permanent partial disability) but he/she was also found to have involuntarily retired from the labor market, the finding of involuntary retirement prevents a finding of voluntary withdrawal from the labor market.  This means that, if you are an injured worker who has been classified with a permanent partial disability and in your Notice of Decision the Judge has also found you to have involuntarily retired from the labor market, the Carrier cannot later on threaten to suspend your benefits absent a showing of a documented work search.  You do not need to produce such work search because by definition a finding of involuntary retirement means you cannot work in any capacity, irrespective of what degree of disability is associated with your comp claim.

The finding of involuntary retirement is often obtained by Claimants who have more damage to their health than just the comp injury alone.  Usually if the Claimant has been awarded Social Security Disability benefits they can use that to persuade a Workers' Comp Law Judge (WCLJ) to find them to have involuntarily withdrawn from the labor market. 

So if you are an injured worker that meets the above description and you have recently been harassed by the Comp Carrier to produce a work search record, you should send the Carrier a copy of the Notice of Decision highlighting the portion where you are found to have involuntarily retired.  That should take care of that issue.  If a hearing is required just bring that Decision to the Hearing and have the Judge re-affirm it. 

Most Recent Workers' Comp Wage Benefits Wage Maximums

As you all probably know from previous posts, under NY Workers' Comp Law an injured worker is entitled to receive wage benefits if they are unable to work as a result of their work related injury.  The wage benefits are based on the injured worker's percentage disability, his/her gross average weekly wage during the year leading up to the date of accident, and the statutory maximum allowed at the time of his/her accident. These statutory maximums go up every year based on NY state's average weekly wage (AWW).  Here is the new table of statutory maximum's according to NY Comp Law:  



Accidents Taking Place On or After                       Maximum  

July 1st, 2012                                                                       792.07
July 1st, 2011                                                                       772.96
July 1st, 2010                                                                       739.83
July 1st, 2009                                                                       600
July 1st 2008                                                                        550
July 1st 2007                                                                        500
July 1st 1992                                                                        400

IMPORTANTLY: The benefit rate a Claimant receives is capped by the maximum rate according to his/her date of injury, and it does not increase if new maximum benefits are adopted into law.  

Just as a refresher, your level of disability is crucial in determining how much you can collect. 

Your level of disability can fall under one of four categories: 

Mild = on average 25% disabled (includes any disability greater than 0% and up to 49.99%).

Moderate = on average 50% (includes 50-74.99 % disabled).

Marked = on average 75% (includes 75-99.99 % disabled).

Total = 100% disabled.
  
How your wage benefits are calculated:

Mild disability = 1/6 of your gross average weekly wage up to the statutory maximum.

Moderate disability = 1/3 of your gross average weekly wage up to the statutory maximum.

Marked disability = 1/2 of your gross average weekly wage up to the statutory maximum.

Total disability = 2/3 of your gross average weekly wage up to the statutory maximum.

DETERMINING YOUR DEGREE OF DISABILITY

            Your doctor is the one who determines your degree of disability as a result of the work accident.  In order for you to be able to collect wage benefits, your doctor’s reports MUST indicate the exact percentage of disability that you have and explain how it related to the work accident.  Without an exact percentage (for example, if your doctor simply states that you are partially disabled but does not indicate how much percentage of partial disability you have) you may only be able to receive the minimum amount available in the partial category.  Therefore it is CRUCIAL that you MAKE SURE your doctor’s reports indicate the exact percentage disability you have AND that your disability is causally related to your work accident.  


 
 

Tuesday, June 21, 2011

Workers' Comp Process in a Nutshell

Although I have published posts on this issue before, it's important to periodically revisit the initial steps of the process so that expectations can be pro-actively managed.  If you are injured at work, here is what you do:
1) Immediately seek medical attention from a doctor that understands Workers' Compensation Claims.  You will only be entitled to benefits from the date in which you have medical evidence of an injury related to work that rendered you unable to work.
2) Notify your employer (preferably your manager or supervisor in writing) that you were injured at work.  Your employer should fill out a C-2 form and submit it to the Workers' Comp Board as well as their Insurance Carrier.
3) Seek help from a Workers' Compensation Attorney or File a Claim on your own with the Workers' Compensation Board by filling out the C-3 form.  You should always get an Attorney because the process is not easy to navigate, relies heavily on established relationships between Attorneys for both sides and respective Judges, and if (when) there is a dispute between your doctor and the Carrier's consultant regarding any aspect of your claim that will require depositions to be conducted, a Judge will direct you to get an Attorney anyway, and by then you may have already compromised your case.

In terms of the time-line, you should expect to spend at least a couple of weeks and sometimes over one month without receiving wage benefits.  That's because receipt of your wage benefits depends on 2 things: 1) the Carrier accepting your claim, and 2) the Carrier receiving the appropriate medical evidence showing a diagnoses, history that the accident happened at work, opinion from the doctor that he believes the work accident caused the injury diagnosed, and a specific degree of disability that will determine your rate of compensation.  If you Claim is initially disputed or if the hospital or doctor does not immediately release your medical reports to the Carrier, you may wait over 4 weeks to start receiving wage benefits.

So what should you do for money until then?  1) you can apply for short term disability through the state, but that in and of itself could take as long as the comp claims process, 2) use money from your savings (if available) and expect to replenish those funds once you start receiving your comp benefits, or 3) rely on the help of family, friends, or community organizations until you start receiving your benefits.

In terms of the life expectancy of your case, before the new December 1, 2010 Guidelines it used to be that any injury to your back and/or neck would take about 2 years from the date of the injury or surgery (if you had surgery) to reach maximum level of medical improvement, at which point you could be classified with a permanent disability or settle, and for extremity injuries (such as shoulders, knees, elbows, hands, feet, etc) it took one year from the date or the accident or surgery (if you had surgery) to reach maximum level of medical improvement, at which point your Orthopedist would evaluate you for a schedule loss of use and you would likely be entitled to a schedule loss of use award.  However, there were plenty of circumstances that changed the reality of those cases, such as additional surgery, returning to work and exacerbation of injuries, that impacted the length of a case.  Also, since for accidents after 3/13/07 Claimants classified with a permanent partial disability would only be entitled to a certain number of years of compensation (as opposed to life-long benefits), Claimant's Attorneys delayed the "starting of the clock" by not classifying those Claimants for as long as they could, keeping them at "temporary disability" status for years.

With the new guidelines Claimants are not entitled to treatment for as long as they used to be.  Now a days treatment is limited to a finite number of chiro and PT sessions as well as only so many consultations with Orthos and Neuros.  This has forced doctors to expedite their course of treatment, immediately trying something new if their current treatment modality was not showing significant improvement, and therefore quickly exhausting most or all treatment modalities in a shorter period of time, thus reaching the conclusion that the Claimant has reached maximum level of medical improvement a lot earlier than before.

The guidelines still call for the same time-frame of 2 years for back/neck cases and 1 year for extremity injuries, however, there is plenty of room to successfully argue that the new guidelines have been able to expedite that process, and therefore there is room to close out cases much earlier than the years before.  For the Claimant, closing out a claim equals freedom from having to constantly go to doctors and chase after their medical records to prove their continued disability, as well as a lump sum that, even if not that much compared to personal injury awards, would enable them to take control of their finances, get a higher return on investment, and move on with their lives.    

Injured on the Way To and/or From Work - Coverage for Outside Workers

As a general rule employees are only covered by Workers' Comp Insurance if they are injured at work while performing their work activities.  There is, however, an exception to that rule: Outside Workers.  An outside worker is someone who does not always report to the same work location.  Whether they are an Attorney that sometimes has to go to Court to represent a Client, an Elevator Mechanic that gets sent to different projects depending on assignment, a doctor who has to go to different hospitals, or a door-to-door salesman who is not an independent contractor, anyone who does not report to one, specific work location is generally considered an outside worker and is therefore covered "door-to-door" (meaning on their way to and from work, while walking, biking, driving, or taking public transit).   Although the law seems clear and therefore benefits should start automatically, it is also the general practice of insurance companies to controvert the claims of outside workers, forcing them to prove that they were outside workers in order to receive benefits.  Generally, upon receipt of the claim stating, for example, that an elevator mechanic was injured on his way to work in a motor-vehicle accident, the insurance carrier will file a C-7 controverting the claim, alleging that the worker is not covered under comp because the accident happened outside of the scope of his employment.  Within a couple of weeks of receiving that C-7 the Board will likely schedule a Pre-Hearing Conference, and both sides are expected to file Pre-Hearing Conference Statements stating their positions.  The workers' Attorney should cite the pertinent case law and describe that the Claimant is what is known in the industry as "an outside worker" and therefore is covered for the injuries resulting from the related MVA.  The Carrier will have to show through testimony or work ledge from that Claimant that he always reported to that location, or perhaps that on the day of the accident he was not scheduled to work.  Otherwise, the Claimant should certainly prevail after testifying to his outside worker characteristics. 


Thursday, December 16, 2010

WHAT HAPPENS AFTER A DENIAL OF A VARIANCE REQUEST?

There are three possible resolutions to the denial of a variance: informal discussion between the Health Care Provider and the Carrier, review by a WCB Law Judge, or submission for a Decision by a Medical Arbitrator. 

INFORMAL DISCUSSION - 8 DAYS
The Health Care Provider and the Carrier have 8 business days to attempt to resolve their dispute regarding the authorization for a variance.  If the dispute is resolved, the Carrier completes secion G of form MG-2 indicating that the matter was resolved by agreement. 

FORMAL REVIEW - 21 BUSINESS DAYS FROM RECEIPT OF DENIAL
If the informal road leads to nowhere, the Health Care Provider must notify the Claimant and the Claimant's Attorney.  The Claimant and his/her Attorney can then decide whether they will seek a formal review of the denial, either by the WCB or a Medical Arbitrator.  If a formal review is sought, the Claimant must file Section F of form MG-2 within 21 business days from the date of the receipt of the denial.  The Claimant has a choice of whether to use the WCB Law Judge or a Medical Arbitrator to review the variance and denial.  That choice is made by checking the appropriate box in Section F of form MG-2.  If no choice is made the default option is expedited review by a WCB Law Judge "Rocket Docket".  If the Claimant chooses a Medical Arbitrator the Carrier must also agree to that method of resolution, and vice-versa. 

A Medical Arbitrator's Decision is not subject to Appeal.  The review happens without the participation or appearance of the parties.  All documents are reviewed.  

If the Expedited Hearing option is chosen, the Hearing will be held within 30 days after the period of informal resolution expires.  One or both parties must request this type of resolution (meaning the right to an expedited hearing cannot be waived).  Medical testimony will be required by virtue of depositions.  Adjournaments will only be permitted for up to 30 days and only for cases involving complex medical issues of causation or diagnosis.     

Carriers' Roles Under the New Medical Treatment Guidelines

Carriers will have to designate a qualified employee who the WCB can contact about variance requests.  These contacts will be published on the WCB's Website.  This is designed to help the Health Care Providers so that they know who to send their variances to. 

WHAT CARRIERS SHOULD DO AFTER RECEIVING A VARIANCE REQUEST
Carriers have to decide whether they will obtain an IME or review of the records report.  If the Carrier plans to obtain either an IME or a review of records report, they must notify the WCB of that intention within 5 days of receipt of the variance request.  If the variance was sent by e-mail or fax, the received date is deemed the same date of transmission, whereas if the variance was sent via mail the received date is five days from the date of postage.  The Carrier notified the WCB of their intention to obtain an IME or review of the records by completing section "D" of of the form MG-2. 

If the Carrier does not plan on getting an IME or review of the records report, the Carrier must notify the WCB within 15 calendar days after receipt of the variance request.  If the Carrier has chosed to get an IME or review of records, the Carrier must issue a responde to the varriance request within 30 days of receipt of that variance request.  Since this creates a huge burden on Carriers, one suggestion has been to get examining physicians to set aside one day per month for these varriance requests. 

POSSIBLE RESPONSES TO VARIANCE REQUESTS
1) Approval.
2) Denial - Denials must be issued even if the Carrier has already filed a C-7 controverting the case.  Controverting the case is not enough to constitute a denial of the variance. 
3) AuthorizeWithout Prejudice - available only if the claim has been controverted or the time to respond has not yet expired.
4) No response - if a Carrier does not respond within the time allotted the Chair will issue an Order of the Chair.  This decision will likely result in an approval of the variance.  An Order of the Chair issued for no response or for an untimely response is not subject to an Appeal under WCL Sec. 23.

DENIAL OF VARIANCES
Denials must be fully explained by the Carrier under Section "E" of form MG-2.  Any reason for denial that is not explained is waived.  There are 4 possible grounds for denial:
  • Treatment requested has already been rendered
  • Health Care Provider did not meet burden of proof
  • Treatment requested is not medically appropriate or necessary (must be supported by an IME or review of the records report)
  • Claimant failed to appear to a scheduled IME. 
If the Carrier's denial is based on the treatment not being medically necessary or appropriate, the Carrier must have had the request examined/reviewed by an IME or records reviewer, must attach the IME reports or review reports, and must submit citations to peer-reviewed medical journals in support of the denial.