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

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 1^st, 2012                                                                       792.07

July 1^st, 2011                                                                       772.96

July 1^st, 2010                                                                       739.83

July 1^st, 2009                                                                       600

July 1^st 2008                                                                        550

July 1^st 2007                                                                        500

July 1^st 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.