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.






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. 

Overview of Medical Treatment After December 1st 2010

As of December 1st 2010, the New York Workers' Compensation Board has fully adopted the new Medical Treatment Guidelines.  These Guidelines, which only affect treatment for the neck, back, shoulders and knees, have now become the mandatory standard of care for ALL injured workers, REGARDLESS of the date of accident.


TWO - PRONG TEST:
1) Medical treatment provided for work related injuries to the neck, back, shoulders and/or knees must be "consistent with the MTG". 
2) "Consistent with the MTG" means that the treatment is provided within the criteria and correct application of the MTG.  The determination of whether the treatment being rendered falls within the criteria and correct application of the MTG is left for the WCB Judges to interpret. 


GENERAL PRINCIPLES
Each first section of the MTGs contains statements of "General Principle", which are crucial to ensure correct application and interpretation of the MTGs.  In total there are 23 General Principles, which are divided into 6 categories.  Here are the two most important general principles
1) The purpose of medical care is to restore functional ability required to meet daily and work-related activities, to obtain a positive patient response primarily defined as functional gains which can be objectively measured, and to provide effective treatment which includes evaluations and re-evaluations of treatment and which discontinues ineffective treatments.
2) Treatment should emphasize active interventions over passive modalities (i.e., therapeutic exercise instead of manipulation), should include passive intervention as a means to facilitate progress in an active rehabilitation program, and should resort to surgical interventions only when there is correlation of clinical findings, clinical course, imaging and other diagnostic tests.


PRE-AUTHORIZATION FOR TREATMENTS
Under the MTGs all treatment consistent with the criteria and application are deemed pre-authorized.  There are 13 exceptions to that rule, or, 13 specific procedures for which a doctor must obtain pre-authorization:


  • Back: lumbar fusion, vertebroplasty, kyphoplasty, low-back artificial disc replacement, and spinal cord stimulator
  • Neck: Artificial disc replacement and spinal cord stimulator
  • Shoulder: anterior acromioplasty
  • Knee: Chrondroplasty, osteochondral autograft, autologous chdrondrocyte implantation, meniscal allograft transplantation and knee arthroscopy (total or partial knee replacement) and any duplicative surgery/treatment. 
Health Care Providers who wish to perform any of these procedures must request authorization from the Carrior prior to performing these procedures.  It is also important to note that the new MTGs specifically prohibit any treatment that is experimental or not yet approved by the FDA.  If the treatment being requested is not listed, the Medical Provider must request a variance to determine whether a Carrier will have to pay for the treatment being requested. 


As noted above, any repeat surgery or treatment requires pre-authorization


VARIANCES
These licenses to perform a treatment either not listed or within the exceptions in the MTGs are much like the old "Request for Authorization" formally filed by virtue of a C-4AUTH.  There are four circumstances in which variances must be sought:
1) If the Health Care Provider believes that the Claimant would benefit from a treatment not listed in the MTGs;
2) If the Health Care Provider believes that the Claimant would benefit from a treatment that is within the MTGs but not recommended by the MTGs;
3) If the Health Care Provider believes that the Claimant would benefit from treatment found in the MTGs but not specified at this point in the course of the Claimant's treatment; or
4) If the Health Care Provider believes that the Claimant would benefit from treatment that is within the MTGs but exceeds the maximum number or frequency limit for that particular treatment. 


HOW TO REQUEST VARIANCES
Variances must be requested by filing the form MG-2 (accessible via this link http://www.wcb.state.ny.us/content/main/forms/MG2.pdf).  The entire form must be completed and signed by the Health Care Provider and submitted both to the Carrier and the Workers' Compensation Board (can be faxed to the WCB at 1-877-533-0337).  If the Health Care Provider is requesting more than one treatment, he/she should use the form MG-2.1 for each additional treatment being requested (accessible via this link http://www.wcb.state.ny.us/content/main/forms/MG2_1.pdf).    Both forms must be transmitted at the same time to the WCB.  The Health Care Provider must provide: 
  • the basis for the opinion that the treatment or test being requested is appropriate and medically necessary;
  • a statement that the Claimant agrees to the proposed treatment/test;
  • any signs or symptoms which failed to improve with treatment provided in accordance with the guidelines; or
  • the objective improvements made by a particular treatment and the expected improvements with more of the same treatment.  
For treatments being requested that are not addressed by the MTGs, the Health Care Provider should also submit copies of peer reviewed medical journals and relevant articles which lend support for the treatment being requested. 


Treatments that are specifically eliminated by the MTGs, such as discography) will not be approved. 


OPTIONAL PRE-APPROVAL REQUEST
Health Care Providers who wish to make sure that the treatment being rendered is in accordance with the MTGs can file an optional request for approval by submitting a form MG-1 (accessible via this link http://www.wcb.state.ny.us/content/main/forms/MG1.pdf).  The form should be completely filled out and submitted to both the Carrirer and the WCB for review.  If more than one treatment is being contemplated for which optional prior approval is being sought, the Health Care Provider should file form MG-1.1 (accessible via this link http://www.wcb.state.ny.us/content/main/forms/MG1_1.pdf) for prior each additional treatment. 


 

Thursday, October 28, 2010

The Insurance Carrier Sent Me a Notice Saying That I Have to See a Specific Doctor on a Specific Date. Do I Have To Go to That Appointment? What Is That?

Yes, you do.  That notice, which should have come in a form labeled “IME-5” is an IME notice, or Independent Medical Examination.  The Carrier can request that you see an IME so that they can get a second opinion regarding your doctor’s medical evaluation of your condition.  Although these IMEs are supposed to be independent, in reality they represent the interests of the insurance companies and will most likely not know much about your case, or even examine you thoroughly.  Independent of how awful that examination goes, the Carrier has the right to rely on their IME’s opinion and if that opinion is different than that of your doctors’, your attorney will have to depose both doctors in order to demonstrate that your doctor is the more credible one.  Until the Judge makes a final decision regarding which medical opinion best reflects your current situation, the Carrier can pay you according to the IME’s opinion.  If the IME says you are not disabled at all, that will mean you will not receive benefits until the Judge rules otherwise.

If My Employer Terminates Me, Can I File For Unemployment and Still Collect Compensation?

It depends on your degree of disability.  In order to file for unemployment you must be ready, willing, and able to work and you must be actively looking for work.  If you are claiming total disability from work, you cannot collect unemployment because a totally disabled person is not ready, willing, and able to work.  However, if you are claiming to be only partially disabled, you may be able to collect unemployment as long as you demonstrate that your work search is within the medical restrictions set out by your doctor.  The total amount you collect on both Workers’ Compensation wage benefits and unemployment combined cannot exceed what you were making at work.

Can My Employer Terminate Me If I Have to be Out of Work Due to My Injuries/Disability?

The short answer is yes, however, this is true not just because of your disability, but rather because like most states, New York is an “employment at will” state, meaning that your employer can terminate you for any reason except the few enumerated discriminatory exceptions.  What happens to your position if you are unable to return to work due to a disability will be dependent on your employment agreement with your employer and if no such agreement or employment contract exists, then your employer may terminate you based on the fact that your position cannot be left open.  However, and importantly, your employer cannot terminate you in retaliation for you filing a Workers’ Compensation claim.  A retaliation claim is very difficult to prove because you would have to show that the sole reason for your termination was the fact that you filed the Workers’ Compensation claim.  Remember, despite termination you would still be entitled to wage benefits from that employer’s Carrier for as long as you can demonstrate that you are disabled as a result of that work accident. 

My Employer is Using My Sick/Vacation Time and Paying Me Wages While I Am Out of Work. Will I Be Able to Get My Sick/Vacation Time Back? What Will Happen When I Run Out of Sick/Vacation Days?

If your employer is paying you wages while you are out of work due to your disability, your employer is entitled to file a reimbursement request with the insurance company.  The important thing to know here is that your employer is only going to be entitled to receive the amount that you would be receiving under workers’ compensation had you been receiving compensation instead of your wages.  That amount will not be the same as your wages.  The amount you are entitled to receive in compensation benefits is determined according to your average weekly wage and your degree of disability, and it is capped at a statutory maximum existent on your date of accident.  This means that your employer will likely return to you some – but not all – of your sick/vacation days (the amount of days equivalent to the amount your employer will be receiving). 

If you run out of sick/vacation days and are still out of work, you will be entitled to workers' compensation wage benefits in the amount equivalent to your disability level according to your AWW and limited to the statutory maximum for your date of accident.

My Doctor is Requesting Treatment, Diagnostic Tests, and/or Surgery. How Long Will It Take for Those to Be Authorized?

Under New York Workers’ Compensation Law, the Carrier has 30 business days to respond to an official request for treatment costing over $1000.  An official request for treatment must be made by your doctor with the submission of a C-4Auth form to the Insurance Carrier requesting such treatment.  Your doctor does not require authorization for treatments or tests costing less than $1000.  If the Carrier does not reply within 30 business days from the date of the C-4Auth request, the treatment being requested is deemed authorized.  If the Carrier denies the treatment on the basis of it not being medically necessary or being rendered to a site not established to the claim (meaning a body part that the Carrier is not convinced you injured in the work accident), a Hearing will have to be requested and that issue will have to be litigated.  Remember, it can take up to 120 days to get a Hearing date  If your doctor believes that the treatment being requested is an emergency and must be rendered, the doctor may render the treatment without authorization and later fight the insurance company to be compensated on the basis of the emergency of the situation.  Under no circumstances should you pay for any medical treatment related to your workers’ compensation claim. 

If I Am Out of Work and Not Receiving Wage Benefits, How Long Will It Take For Me to Start Getting Paid?

In order to make sure you get paid you or your attorney in your behalf must file a C-3 form with the NY Workers’ Compensation Board.  You must do this even if your employer filed a claim on your behalf.  Once the Workers’ Compensation Board receives your C-3 it will assemble a file and give you a case number.  Then it will review the records.  If you are out of work and have produced supporting medical evidence of a work-related disability, the Board will file a notice of indexing.  The Insurance Carrier has 25 business days from the date of the filing of the notice of indexing to respond by either accepting your claim and begin making payments to you or disputing your claim.  Your attorney can only request a Hearing on your behalf to establish your case and ensure that you are getting paid the correct amount in benefits once either the Carrier replies with their acceptance or rejection, or after the 25 business days from the date of the notice of decision has elapsed.  After making a request for a Hearing, it can take up to 120 days for the Workers’ Compensation Board to give you a Hearing date.  The amount of time will depend on how many cases are ahead of you in a first come, first serve basis.  This is why it is very important that you file a C-3 form and retain an attorney as quickly as possible.  The longer you wait, the longer your claim will be delayed.

Tuesday, October 26, 2010

What You Should Know Prior To Your Initial Consultation With An Attorney

Here are some things you need to know and keep in mind prior to your initial consultation with a Workers' Compensation Attorney:

1) Workers' Compensation Attorneys are paid on a contingency fee.  That means that you do not pay any money up front and there are no consultation fees.  However, if you are awarded money for your case, your attorney will receive a portion of that money.  The Attorney's fee is deducted from the amount you are awarded.  Typically, the fee is 15%.  The Law Judge will determine whether the fee is reasonable and may cut an unreasonable fee down to a reasonable amount.  The Workers' Compensation Attorney is not appointed by the state and does not work for free

2) At the initial consultation your attorney will ask you details about your accident, such as how, when, and where the accident happened, the extent of your medical treatment, what you have been diagnosed with, whether you are out of work, how much you were making per week (before taxes) the year leading up to the date of the accident, whether you had any prior accidents or injured those same body parts before, etc.  You should expect to fill out forms and medical releases (HIPAA).  You should also be expected to disclose your Social Security Number. 

3) Either at the initial consultation or soon after you retain the help of your attorney, you will need to send your attorney evidence of your income, name and address of your employer, name and address of your doctor, emergency room records, names and contact information of witnesses to your accident, a detailed account of how you were injured and where you were injured, and any other important information related to your claim. 

Workers' Compensation vs. Personal Injury/Third Party Actions

One thing you have to remember and many people seem to forget is that Workers' Compensation is not a lawsuit.  The Workers' Compensation Claim is a Claim for insurance benefits that your employer is required to have available in case employees get hurt on the job.  Unlike Personal Injury/Third Party lawsuits, a Workers' Compensation Claim does not pay for your pain and suffering nor does it allow for punitive damages on the employer.  Negligence is not an issue.  You do not have to prove nor does it matter that your Employer was at fault or did anything wrong.  The only elements you must show is that you were injured at work, and that the injury was caused by the work you were doing, or while you were doing your regular work activities.

How Do I Know Whether I Have A Third Party Claim In Addition To Workers' Compensation?

Of course the final verdict of whether or not you have a viable claim will have to come from an experienced personal injury attorney.  However, here are some things to look for in trying to figure out whether you may have a third party claim:

1) The equipment you were using was defective and that defect caused or contributed to your injury.

2) There is a maintenance company or custodian who is responsible for keeping your work place clean or safe and that company or custodian's action or inaction contributed to or caused your injury.

3) Your Employer's vehicle that you were in when you got into an accident was owned, operated, or repaired by someone other than your employer and that person's action or inaction related to the maintenance or operation of that vehicle resulted in your accident.

4) Chemicals you used at work that led to your injury may have been negligently manufactured or instructions for safety precautions were poorly written.

Basically you should think about all the factors and steps that led to your accident and/or injury and see whether someone else bears some responsibility. 

My Injury Occurred At Work But Was Caused By A Person Or Company Other Than My Employer

There are many instances in which your work injury was caused or contributed to by someone other than your employer or co-workers.  If that is the case, you may have a Third Party Action in addition to your Workers' Compensation Claim. 

Third party actions are lawsuits that can be against equipment manufacturers, general contractors, landowners, building owners, or basically any party other than the Employer or that Employer's Employees that contributed to an accident. 

As previously discussed, under New York Law, Workers' Compensation is a workers' sole remedy against an employer for injuries that happened at work.  However, lawsuits can still be initiated against third parties for contributory negligence, product defects, etc.  It is important to consider those lawsuits because they may allow you to collect money damages for pain and suffering, full lost wages, and other losses that are not available in a Workers' Compensation award. 

Thursday, October 21, 2010

I Was Classified With a PPD Prior to March 13, 2007. Will I Lose My Benefits If I Retire?

March 13, 2007 marked a crucial change in Workers' Compensation Law.  Prior to that date, when a Claimant was classified with a Permanent Partial Disability (PPD), that Claimant was entitled to receive lifetime benefits.  After that date, benefits were capped at a certain number of weeks (years) according to the exact percentage of partial disability that the Claimant was classified with. 

Claimants who are classified with a PPD, and who have not been subject to a finding of involuntary retirement, have an ongoing obligation to look for work within their medical restriction in order to avoid a finding of voluntary withdrawal.  If the Claimant is able to find work within his restrictions, the Claimant may still be entitled to wage benefits if the wages the Claimant is receiving in the new job are less than those wages he received before the disability.  Specifically, the Claimant would be entitled to a Reduced Earnings Award, which is 2/3 of the difference between what he used to make and what he is making now, up to the statutory maximum on the date of accident. 

An important question that may concern those Claimants who were classified prior to March 13, 2007, and who were therefore entitled to receive benefits for life is whether they will lose their benefits if they retire from their job.  The short answer is: it depends.  But what does it depend on?  It depends on whether the reason the Claimant is retiring is that he cannot continue to work in that capacity as a result of the work-related disability.  If that is the case, then the Claimant is entitled to continue to receive benefits, of course limited to it not exceeding the amount he received in wages prior to the disability.  However, if the Claimant is retiring for reasons unrelated to the disability, then he is not entitled to receive wage benefits upon retirement.

For instance: a Claimant who was classified with a PPD in 1990 and who was able to secure a job as a bus driver with reduced earnings, is entitled to receive the reduced earning wages for life (so long as he can prove ongoing reduced earnings).  If that Claimant decides to retire at the age of 71, the only way he can continue to receive wage benefits is if he has medical evidence that the reason he is deciding to retire is that his disability makes it difficult for him to continue to perform those duties. 

The situation gets even more complicated if that Claimant will continue to work in a different job after retirement.  If that is the case, the Claimant should make sure that 1) The job he will continue to perform after retirement is less strenuous than the one he is retiring from, 2) he has medical evidence supporting the fact that his retirement is related to his disability, and 3) that the sum of his retirement benefits, his Compensation benefits, and the wages he is receiving in the job he will continue to perform after retirement do not exceed the wages he made prior to becoming disabled as a result of his work accident.  He will probably need to show continued reduced earnings on a yearly basis by virtue of W-2s and tax returns.    

If the Claimant retires at the exact age of 65, that may also increase suspicion on the Carrier's part.  As a Claimant you have to remember that the Carrier will use any legal avenue available to fight payments, so be prepared for a battle even when you are well within your rights. 

Monday, October 18, 2010

My Doctor Says I'm Partially Disabled. Do I Have To Look For Work I Can Do?

When your doctor and/or the Law Judge have determined that you have a partial disability and therefore could work within certain restrictions, you must look for work within those restrictions.  If you don't sufficiently show that you are actively trying to find work that you can perform, you risk losing entitlement to benefits altogether by falling victim to what is known as a "finding of voluntary withdrawal from the labor market".

In the legal world this issue is known as "attachment".  There are two circumstances in which they could come up, and both of them require that either your treating doctor OR the Workers' Compensation Board has determined that you are only partially disabled and could so some work within certain medical restrictions.  Remember, it does not matter that you are unable to perform your regular employment duties within your own field (such as construction, mechanic, etc).  All that matters is that there is some job somewhere that you could safely perform without aggravating your condition. 

The first scenario where this issue could come up (again, given that either your doctor or the WCB has determined you are only partially disabled) is when your employer offers you a light duty position within the company.  The offer must be real, and must be within your medical restrictions to be a valid light duty offer, but, if they offer it, you should accept it.

If your company does not offer you a light duty position, or if you ask and they do not have one, your should then make sure you look for work within your restrictions somewhere else.  Even if your employer is holding your position open, you have a duty to look for work within your restrictions AND you must document your work search in detail, with a log indicating the date of the search, time of the search, whether you applied in person and online, what you did to apply, who you spoke or corresponded with, and what the outcome was.  You should also document the specific role description.  In order to be a true search it must be within your restrictions. 

"I'M A CONSTRUCTION WORKER, HOW CAN THEY EXPECT ME TO DO A DESK JOB?"

They just do, it's the law, and it is there to ensure the labor market stays active.  And if for whatever reason the only factor keeping you from getting a light duty job is a lack of skill or training, then you should take advantage of the vocational re-training programs that are offered free of charge for those who are partially disabled and unable to perform their old duties.  The NYS Department of Labor Operates One Stop Centers, where Disability Program Navigators help you get a job.  For the office nearest you call (888) 469-7365.  Another good resource is VESID (Vocational and Educational Services for Persons with Disabilities).  To find a VESID office nearest you call (800) 222-5627. 

MAKING SURE YOU DO EVERYTHING YOU CAN

The new case law is often being interpreted as requiring that you not only document your work search in detail and provide documented evidence of that search, but also that you contact the Department of Labor (DOL) and VESID in order to show that you are serious about remaining attached to the labor market. 

YOU DON'T NEED TO ACTUALLY FIND A JOB

It will be extremely difficult to find a job with medical restrictions and a pending Workers' Compensation claim, but in order to demonstrate attachment to the labor market you don't need to secure a job, you just need to look for one and be able to prove that you were looking.  Just remember that the proof has to be in detailed documented form. 

Tuesday, October 12, 2010

What Happens If My Claim Is Denied?

If your claim is denied, the Board will usually schedule a pre-hearing conference, which is a first appearance where you, your attorney, and the Carrier’s attorney are present before the Judge to submit the different positions, give the name of any witnesses on both sides, and receive the date of a first hearing/trial.  There is nothing we can do until a trial is held.  Your attorney will prepare you for testimony at the trial.  You should give the name and contact information of any and all witnesses to your attorney as soon as possible so that they may be contacted and present at the trial.  You should also give your attorney a copy of all pertinent medical records, pay stubs, tax returns and W-2s, as well as any other documents you may have related to this claim.  You should also disclose to your attorney if you have ever suffered any type of accident whatsoever in the past, and what your injuries were.  If you have injured the same site you re-injured in the work-accident, you must tell your attorney the details of that prior accident, including the name of the doctor who treated you and whether you received any settlements or were represented by an attorney in case you filed a lawsuit in connection with that prior accident. 

What Happens If My Claim Is Accepted?

If your claim is accepted and your doctor has properly documented that you are totally disabled and out of work as a result of the work-related accident, you are entitled to receive 2/3 of your Average Weekly Wage (AWW) up to the pre-set statutory maximum correspondent to your date of accident.  You have to miss more than seven (7) days of work in order to be entitled to benefits – this is called a “waiting period”.  You also have to have the appropriate medical documentation in the appropriate forms (C-4, C-4.2) indicating the exact percentage of disability that you have and specifically connecting your disability to the history of your work accident.  You need to see your doctor every 45 days in order to keep receiving your benefits.  The Carrier may also request that you be examined by an Independent Medical Examiner (IME) in order to verify that your doctor’s opinion regarding your condition is accurate.  If there is a difference in opinion regarding your degree of disability, the Carrier has the right to rely on the IME opinion and reduce/suspend your payments accordingly until testimony is taken and we can show that your doctor’s opinion is more credible. 

Getting Your Claim Accepted

The attorney's efforts at the beginning are to get your Claim timely filed and to get the insurance Carrier for your employer to accept the claim.  The Carrier has 18 days after disability or 10 days after employer had knowledge of injury, whichever is greater, or if the first notice of the accident or illness is a notice of indexing, then 25 days from receipt of the notice of indexing to respond by either denying the claim (by filing a C-7 Form) or accepting the claim (by filing a C-669 Form).  However, we immediately begin fighting for you by getting in touch with the insurance company and attempting to resolve any issues.  Independent of whether the Carrier accepts your claim right away, upon receiving the Notice of Indexing we will request a hearing to get your case established.  We do this because if the Carrier voluntarily accepts your claim and begins making payments, the Carrier may suspend your payments without warning.  If payments are directed by the Judge, which can only happen once the case has been established, the Carrier may only suspend or reduce your payments after requesting a hearing and being successful on the merits.  Your attorney will then be aware of the reason why the Carrier seeks suspension or reduction, and can prepare a defense in order to ensure such actions are not taken. 

Seeing a Doctor Every 45 Days

If you are currently receiving wage benefits, whether because you are out of work or are working with reduced earnings, you MUST see your doctor EVERY 45 DAYS or else the Insurance Carrier may request suspension of benefits. 

The reason is simple: if you are receiving wage benefits because you are temporarily totally or partially disabled, then you must check often to see whether that temporary period of impairment has gone away.  Temporary means that you would eventually get better, or at least the hope for improvement exists. 

The burden is on the Claimant to continue to prove that he/she is still unable to work or earn full wages because of the injuries sustained in the work accident. Even if your medical report is one day old the Carrier may request suspension of benefits.  So you have to make sure you have medical reports documenting you are still as disabled as before (if you are less disabled your benefits may be reduced accordingly) and that you have been receiving treatment every 45 days. 

IMPORTANTLY: MAKE SURE YOUR ATTORNEY HAS A COPY OF EVERY MEDICAL REPORT FOR EVERY VISIT. 

If you are currently working and receiving the same wages as you did before the accident, you are not entitled to wage benefits, and therefore do not need to see your doctor every 45 days.

My Attorney Has Me Doing All the Work!

When you are injured, unable to work, and struggling to make ends meet, it is understandable that you feel angry, stressed, and misunderstood.  If you retained an attorney to represent you in your Workers' Comp claim, then it must mean that from now on you just sit back, relax, and collect your checks right? 

WRONG!!!  Retaining an attorney does not remove you from your case.  It does not mean that you should simply expect your attorney to chase after all medical records, and always be able to magically preclude the rights legally given to the Insurance Carrier. 

You are still the person most interested in the outcome of your own case, and therefore you should make sure you keep track of everything you need, and give the pertinent documents to your attorney, whose most important role is fighting the insurance company at the hearings.

Many clients get mad at their attorney because their attorney seems to only let them know something is missing, like supporting medical evidence, when it gets close to the hearing, and then is unable to secure a copy on time, which can lead to temporary suspension of benefits.  It is simply unreasonable to expect that your attorney will be able to review all clients' files periodically to see what is missing, and successfully obtain records from your doctor without any problems in a timely fashion.  There are thousands of clients, all with scheduled hearings that require your attorney's presence.  You are the one in the better position to always submit the medical records to your attorney after each doctor visit, because you are also the one in the better position to get the medical records from your doctor. 

If your attorney simply wants you to gather the evidence necessary to present your case, that is not making you do all the work.  Without your attorney you probably would not be successful at presenting and defending your own claim at the hearings. 

You should remember this: your attorney is a crucial element in making sure the law is interpreted in your favor.  Their job is to handle hearings and the Insurance Carrier in your behalf.  You however, have the ongoing responsibility to provide your attorney with copies of medical records every time you get medical treatment, update your attorney on any changes of condition, address changes, surgical requests, treatment requests, etc.  It is a combined effort that if done in harmony will result in a positive outcome. 

Things To Keep In Mind During The Claim Process

DON’T BECOME IMPATIENT
The insurance company is very perceptive over injured people who push for early settlements or become impatient with delays in authorization for treatments or payments.  Their adjusters are very experienced and know how long they are legally allowed to make you wait, and they know that the impatient Claimants will likely give up sooner and either return to work despite being incapacitated, or try to pay for treatment out of pocket or through their own health insurance.  They also know that if a Claimant is trying to settle the case too early they can offer an amount lower than what the claim is worth.   Don’t fall into these traps!!!  Every injured worker goes through the same lengthy, tedious, and sometimes unreasonable process, and your attorney should make it as smooth as it is legally possible. 

BEING OUT OF WORK
Many of our clients have to be out of work as a result of their injury.  This causes a lot of stress!  We know that despite the lack of income the bills keep coming, and we know that the amount you can collect in compensation can be significantly less than what you made before.  You should not create additional stress by failing to keep doctor appointments every 45 days or by failing to review your doctor’s reports to ensure that, if your doctor is saying you must stay out of work, he/she is also saying that you are 100% or totally disabled.  That must be specifically listed in the report, together with a diagnosis of your condition and an explanation of how that was caused by the work accident history you gave your doctor.  You should always make sure that we have a copy of that report so we can help you in court. 

KEEP FOCUSED
Many of our clients become frustrated and experience high levels of stress because of their injury event.  Keep focused on your health and allow us to be focused on presenting your claim.  Your health should be your number one concern.  Everything else will work out.  While it is ok to be angry over what happened, it does not help your case.  Just remember that our firm is dedicated to your cause and we will be the ones to help you recover what you legally deserve in compensation.  You worry about you and let us worry about your case.  In order for us to fight for you we will need to use our time to speak with the insurance companies and Carrier’s attorneys.  The more time we spend helping you cope with your frustrations in person or over the phone, the less time we have to successfully recover on your behalf.  We also need you to trust our expertise and allow us to use the pace and strategies that we know works best and most efficiently in getting you the benefits you deserve.      

I'm Injured and I Can't Afford My Bills!!!

Whether you are receiving benefits but they just don't add up to what you were making, or you are currently not receiving any benefits because your claim is being disputed or the case has not yet been indexed, you probably feel stressed, angry, and hopeless. 

Most clients are concerned about how they pay their bills while recovering.  THE INSURANCE COMPANIES RELY ON YOUR NEED TO GET WELL AND GET MONEY!  They know you are anxious, may be out of work, and have mounting medical bills.  Therefore…

We offer these suggestions:

  1. Be up front with your medical providers.  Tell them you will be glad to have our office send a letter assuring them of payment at settlement.  If you go to a Workers’ Compensation doctor, he/she will already know the drill, and will already know that their bills do not get paid right away for the most part.  They still are not allowed to charge you for visits related to the work injury.  Making you pay would be illegal.
  2. If you are out of work or need financial assistance, this is the time to rely on your family or friends.  The insurance company will not advance money to you.  You may need to secure a loan.  Just remember that it will have to be paid back!  Don’t wait until you are in a crisis to know that you are having financial problems.  Anticipate the loss of income and plan for it.
  3. You would not hesitate to help someone else, so this is the time to let others help you.  There are a great number of programs available in your area through churches or governmental agencies, which help people when they find themselves in dire circumstances.  Do not be afraid to ask for help! 
  4. Your attorneys are not allowed to loan you money.  We could lose our licenses for this!  Please understand that although we sympathize with your situation, and will try to help you in every way that we can, loaning you money is not an option. 

Dealing With Doctors

Because you are injured, you will find yourself in a medical system that may at times make you feel like no one is listening to or cares about you.  For that reason, we are offering you some general advice:

WHICH DOCTORS TO SELECT
Generally speaking, most people are first treated at an emergency room and then referred to a doctor, which could be your family doctor.  It is important that, if you choose to first see your family doctor, you tell him/her that your accident was work-related, and that you ask for referrals of doctors who understand Workers’ Compensation and are coded by the Workers’ Compensation Board.  Going to a Workers’ Compensation doctor will decrease your chances of problems with the appropriate forms being filled out or relevant information missing.  You can choose what doctor you go to, but you may not be able to choose which radiological facility you can go to.  The insurance company has the right to give you a list of places near you that you may choose from to go for diagnostic testing, such as MRIs, EMGs, or X-rays.    

DISCLOSE ALL PRIOR MEDICAL HISTORY
This includes ALL illnesses and previous accidents or injuries.  Prior accidents and injuries generally do not affect the viability of your claim unless you hide it!!!

IF THE DOCTOR MAKES AN ERRONEOUS STATEMENT CONCERNING YOUR INJURY
Clarify it immediately.  The doctor assumes that he/she is correct.  But you must remember that the doctor sees many patients every day and may not accurately remember your particular case.  Doctors make mistake just like any of us, so it is important that you correct them when you see them being made, otherwise you may end up with contradictions in your medical reports that may delay your claim. 

TAKE CHARGE OF YOUR MEDICAL CONDITION
While your doctor is there to treat you and render his professional opinion, it is your body and your life.  If you feel that he/she is not listening to you and for a few minutes so you can explain the whole picture to him/her.  The overall picture should be important to your doctor.  The doctor should want to know what your concerns are and what problems your injury is creating in your life.  Don’t be afraid to tell your doctor that you don’t understand something.  The extra few minutes of time will make a difference in your recovery.

DO NOT EXAGERATE YOUR INJURY
It is human nature to want people to believe you are hurt and the easiest way to do that is to stress how much it hurts or to use facial grimaces.  We have found that doctors relate better to a patient if they can describe pain and discomfort using a 1 to 10 scale.  For example, “my pain is an 8 on a scale of 1 to 10, 10 being the worst”.  We are not advocating that you hide your feelings.  If it hurts you may not be able to control the facial expressions or stress in your voice.  That is perfectly fine.  However, don’t fake it, because the doctor will know if what you are saying does not co-relate with his objective exam findings.

DOCTORS AND LAWYERS
Your doctor has your attorney at the bottom of the priority pile.  When it comes to your doctor’s call backs and responses, the patient (you) come first, then the Carrier (who pays the medical bills), then us (if the doctor remembers).  Therefore, you should try to be on top of obtaining copies of your own medical records and making sure we have received them too.  We will try to get them directly from your doctor, but if your doctor does not respond to us in a timely fashion it is your case that is in jeopardy, so you should have a personal interest in making sure your doctor is filling out the appropriate forms correctly after each visit, and sending us copies of those records for your file.    

CHANGING DOCTORS
You are free to choose whatever doctor you want to go to, and you can also choose to switch.  However, remember that anything you do may be questioned by the insurance company.  You should make sure you have a good reason to switch your doctor so that you do not create the impression that you are switching because you are doctor shopping for the one who will say you can’t work.  Of course if you feel that your doctor is not nice, or is not listening to you that would be a good reason to switch. 

MISSED APPOINTMENTS
Both the doctors and the insurance company view missed appointments with suspicion.  Of course there are many things in life that are beyond our control, and sometimes you may not be able to make it due to unforeseen circumstances.  You should always make sure you keep record of the reason for your missed appointment and reschedule it for the nearest possible date.  You should also inform us if you missed an appointment and the next available date would cause you to have a lapse of more than 45 days since your last visit.  If you do not see your doctor every 45 days, the Carrier may legally suspend your benefits, even if only for a one day difference. 

KEEP YOUR ATTORNEYS INFORMED!
You must keep your attorneys informed of your treatment dates, what doctors you are treating with, any diagnostic exams being requested and any diagnostic exam results you receive, any talk about or request for surgery, any scheduled surgeries, any surgical reports, any specialists you are being referred to, any treatments that are being recommended (for what and by who), and send your attorneys copies of all medical reports you have at hand. 

What Makes a Claim Successful?

WHAT MAKES MY CLAIM A SUCCESSFUL ONE?
Your attorneys work very hard to keep your claim going forward.  The difference between having a successful claim and a not-so-successful claim is the cooperation and partnership existing between your attorney and you.  There are certain things that our firm requires of our clients that allow us to make the best possible claim, and if you were our client, this is the advice we would have for you:
  1. Be patient!  Like everything else in organized society, every step of the Workers’ Compensation claim takes time.  From receiving the Notice of Indexing and WCB# back from the Board, to getting the Insurance Carrier to respond to a request, to getting a Decision on a disputed issue, to reaching a degree of maximum medical improvement and every other step of the process.  You must understand and believe that we are doing everything we can in order to expedite the process for you and that without our help it would go even slower.   Don’t sacrifice the potentially great outcome of your case by becoming frustrated and rushed.  There will come a time when it will all be worth it. 
  2. If you are receiving wage benefits, make sure you go to your doctor every 45 days.
  3. Make sure you tell your doctor the exact history of the accident, especially that it is an accident that happened at work, and double check that in his/her report he/she not only states the exact percentage of disability and ability to return to work but also how they relate to the mechanism of the work injury. 
  4. Make sure you can provide documentation that proves every statement you make related to your claim.  You should be able to prove how much you were making, where you were working, and what your doctor’s opinion is. 
  5. If the Insurance Carrier schedules a visit with an Independent Medical Examiner (IME), make sure you go to that appointment, and, if you choose to, videotape it. 
  6. If your doctor has told you or has issued a report saying you are not totally disabled, or the Law Judge has issued a Decision that you are only partially disabled, make sure you document a work search for a job within your restrictions and that you make an attempt at vocational rehabilitation. 
  7. Be truthful and up-front with us!  Do not hide the fact that you had a prior accident with the same or similar injuries, or any other accident even if not work-related and even if not resulting in any injuries.  Always inform us if you have returned to work in any capacity, whether with the same employer, new employer, full time, part time, volunteer, for barter or exchange, as a favor to a friend, etc.  ANYTHING that could be perceived as work or as activities that you reportedly cannot perform should be reported to us if you perform such activities.  Remember, the Insurance Carrier may have you under surveillance at any time, and if you say you are totally disabled from work but then perform activities that go against that reality, you could lose your entitlement to benefits. 
  8. Do not move or change your phone number without notifying us.  If you will be out of reach for a prolonged period of time, please let us know. 
  9. Never talk to anyone about your claim except to your attorney.  If the Insurance Carrier contacts you directly your only response should be that you are being represented by an attorney and they should contact us.  You should also forward us any documentation that they send you.
  10. Remember that despite our best efforts, you are the one in the best position to obtain copies of your medical records and doctor reports.  So you should make sure we have all the documentation we need.  That includes diagnostic test results, prescription medication you are taking, and any other medically relevant document or information. 
  11. Understand the system!  We can assure you that our reputation has been built on providing a quality work product, but we are legally bound by the system.  It is the legislature – not us – who makes the laws, and only they can change it.  There will be times when we tell you about rights of the insurance company that you may think are unfair, or that we cannot right a wrong or get a quicker result than the law allows.  We cannot make the system move faster than it is legally allowed, but we promise that we will do everything we can to use the quickest legal avenue to avoid unnecessary delays. 
  12. If you don’t understand something or have a question, ASK!  We are here to help you.  We want to make this difficult situation easier.  You can call us with the same question many times if you don’t understand something, but you should also know that you can rely on anyone from our team for help.  If your attorney is not available it probably is because he/she is at a hearing representing other clients.  You should feel comfortable talking to the paralegals and legal support teach about your case if you need immediate assistance.  The fact that your attorney is unavailable at the time you place your call does not mean he/she is ignoring you.   
 Let us know if you are unhappy!  Sometimes dissatisfaction happens because of a simple and correctable misunderstanding.  We will work to resolve any issues you have with your case.

Disability Classifications

As previously mentioned, your doctor will render an opinion regarding how much your work injury disables you.  The Insurance Carrier may disagree, and will likely send you to get an independent medical exam (IME).  The Board will then make a decision based on all evidence presented by both sides.  In the meantime, as unfair as it may sound to you, you can only collect benefits that reflect the Carrier's opinion.

There are several different disability classifications:

TEMPORARY TOTAL DISABILITY: means that you are temporarily completely unable to perform any work.  You are therefore entitled to the full allowable wage benefit.

TEMPORARY PARTIAL DISABILITY: means that you have temporarily lost some ability to work and earn full wages.  You are entitled to receive a percentage of your salary equal to the percentage of disability up to the statutory maximum correspondent to the date of accident.  In this case, you have an obligation to look for work within your medical restrictions and keep a documented work search.  If you do not, then you can be found to have voluntarily withdrawn from the labor market, and lose your entitlement to benefits.

PERMANENT PARTIAL DISABILITY, NONSCHEDULE LOSS: means that you permanently lost some ability to do work.  If you were injured before March 13, 2007, you can collect benefits for life so long as you keep showing that your disability results in wage loss.  If your injury happened after March 13, 2007, you will only be entitled to benefits for a set period of time, at most 10 years.  However, if you have over 80% disability you can be re-evaluated for continuing benefits once your time period runs out.  If you have a change in condition, so long as it is supported by medical evidence, you may be able to re-open your case and apply for re-classification.

PERMANENT PARTIAL DISABILITY, SCHEDULE LOSS: means that you injured your arm, hand, finger, leg, foot, toe, or some other schedulable body part (an extremity), or lost your eyesight or hearing.  The law specifies the number of weeks in benefits you receive for this loss.  This only an appropriate remedy when you were able to return to work quickly and have not lost too much time from work as a result of your injury. 

PERMANENT TOTAL DISABILITY: means you completely lost your ability to work in any capacity and therefore cannot earn wages.  You are therefore entitled to benefits for life. 

DISFIGUREMENT: for those people whose face, head, or neck are permanently disfigured as a result of the work accident, benefits of up to $20,000 may be awarded depending on the extent of the injury and date of accident.  

Important Information For Doctors

It is you, the Health Care Provider (HCP), that can make or break an injured workers' compensation claim.  Without properly documented medical evidence, your patient will not be able to receive the compensation he/she is entitled under the law.  But this post isn't just an attempt to get you to properly complete the appropriate forms and submit them timely by invoking your sympathy for the injured worker; as the laws have changed, you now have an obligation to do so, at the risk of otherwise losing your right to payment for your services, or worse, having the board issue a temporary suspension or revocation proceeding. 

So it is not only in your patient's best interest, but also in yours, to follow these new rules carefully.  The 2007 Workers Compensation Reforms (The Spitzer Reforms) made significant changes to the ninety year old system and have particularly made substantial changes for the health care providers.

The most significant changes are in the forms that the health care providers MUST use in order to treat patients under the Workers Compensation Law. In particular, as of April 1, 2009, if a medical provider does not use these forms, the provider will be subject to
penalties!

The Current Revised Forms are:
C-4 Attending Doctors Report
C-4.2 Doctor's Progress Report
C-4.3 Doctor's Report of MMI/Permanent Impairment
C-4Auth
C-4AMR (Ancillary Medical Report)- designed for providers of ancillary services (e.g. MRI's etc)
EC-4NARR 

SUMMARY OF HOW TO USE THESE FORMS


C-4 FORM – Use this form to fill out information from the first examination/treatment of Claimant for the work-related injury. 

C-4.2 FORM – Use this form to fill out information from all subsequent examinations/treatment of the Claimant in connection with the work-related injury. 

C-4 AUTH FORM – Use this form to request approval for treatment from the insurance Carrier. 

Where To Submit Forms


  1. Submit form to the Workers’ Compensation Board via:
    1. Mail:   NYS Workers’ Compensation Board
           
20 Park St
.
            Albany, NY 12207

    1. Fax:     1-877-533-0337

  1. Submit form to the Workers’ Compensation Insurance Carrier

  1. Submit copy of form to Claimant's attorneys

  1. Give a copy to the Claimant (Patient) at his/her request.
You should also take notice and make sure to explain to your entire staff that neither the patients (Claimants), nor their attorneys can be charged for the reproduction of these documents.  Since these forms are required by law, they do not come under the regulations set down in Public Health Law Sections 17 and 18, regarding a fee for duplicating written medical records, nor are they to be construed as a request for a narrative report.

In order to remain entitled to compensation, a patient who is out of work as a result of his/her work related injury must treat with a provider and submit the above mentioned forms to the Workers' Compensation Board and Insurance Carrier every 45 days.  Doctors are supposed to submit the forms themselves within 48 hours of treating the Claimant.

Submitting the forms to the Claimant's attorney is crucial to ensure that you will be paid for your services.  The Claimant's attorney needs the forms as supporting evidence of the ongoing compensation that entitles the Claimant to medical care and benefits, which in turn entitles the provider to payments for treatment. 

How Much Will I Receive in Wage Benefits Under Workers' Compensation?

Here is some important information that you must know in order to have reasonable expectations during the Workers’ Compensation claim’s process:

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.



Your wage benefits are based on your percentage disability, your gross average weekly wage during the year leading up to the date of accident, and the statutory maximum allowed at the time of your accident. 

Accidents
Taking Place
On or After                                                                Maximum  

July 1st, 2010                                                               739.83
July 1st, 2009                                                               600
July 1st 2008                                                                550
July 1st 2007                                                                500
July 1st 1992                                                                400

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. 


You should also keep in mind that your doctor's opinion can be contested by the Insurance Carrier if the Carrier has a controverting IME (Independent Medical Examiner's) opinion indicating a lower degree of disability than that which your doctor is stating in his/her report.  By law, the Carrier has the right to rely on his Doctor's opinion and pay you only the rate correspondent to that degree of disability.  Sometimes your attorney can work out a rate in between what your doctor is saying and what the Carrier's doctor is saying, called a temporary rate, or "TR".  These rates can be retroactively adjusted at a later time during the course of your claim.  However, if a rate cannot be worked out, or if the IME says you do not have any disability, your attorney will likely ask the judge to direct depositions of both your doctor and the IME doctor.  During depositions, your attorney will ask questions that will undermine the credibility of the IME doctor and boost the credibility of your doctor.  After depositions are conducted, your attorney and the Carrier's attorney will deliver either oral or written summations, where they each ask the Judge to honor their respective doctor's position. 


The judge will then make a decision regarding your degree of disability by either siding with your doctor or the IME.