What makes an MG-2 form complete?

All Board forms should be completely filled out with all available information. Certain information is essential to the Board's internal procedures. Without that essential information, the Board cannot process the form. In order for the Board to take action on an MG-2 form, the Board requires that the following fields be completed.

Section A:
(1) Patient's name, and
(2) Insurance Carrier's Name & Address.
Please note that the Insurance Carrier's or TPA's name and address must match the information the Board has on file.
Section B:
(1) Individual Provider's WCB Authorization Number for all providers authorized by the New York State Workers' Compensation Board
Section C:
(1) Date Variance Request Submitted and Method of Transmission,
(2) Guideline Reference for the body part followed by the 2 to 4 character corresponding reference in the Medical Treatment Guidelines or followed by the four letters N-O-N-E if there is no listed procedure,
(3) Approval Requested For requires a written description of the treatment requested,
(4) Statement of Medical Necessity requires a description directly on the form and if there is a supporting medical report in the Board's case file, enter the date of service or if there is no supporting medical report in the case file, attach a medical report and enter "See attached medical report" on the form;
(5) A check box selected for how the carrier was contacted. Please note if you listed your fax number at the top of the form, do not select the second check box; and
(6) the Provider's signature or stamp. Please note that initials next to the signature or stamp are not acceptable.
All other information that is requested on the form should be filled in if available.

Example of a Properly Completed MG-2 Form

If a carrier denies a variance request based on the opinion of a non-physician "medical professional," will that opinion be afforded the same weight as the opinion of a claimant's physician, whether at arbitration or hearing?

Questions of credibility, reasonableness and weight of medical evidence are for the Board to decide. It is within the province of the Board to resolve conflicts in the medical testimony as well as to determine the reasonableness of and the weight and credibility to be given to such testimony (see Matter of Forrest v Grossman's Lumber, 175 AD2d 498 [1991], lv denied 78 NY2d 862 [1991]).

Typically petitioning the Board for a finding involves depositions of all medical experts involved, both the Claimant's treating physicians and the Carrier's IMEs.  

What is the "burden of proof" for a provider seeking a variance?

There are three basic types of variance requests. The provider must present documentation showing that the proposed treatment, which may be 1. An extension beyond the maximum duration or frequency recommended in the MTG, 2. Not recommended in the MTGs, or 3. Not addressed in the MTG is medically necessary and likely to be effective for the patient. The documentation required varies depending upon the type of variance (treatment) the provider is seeking. To satisfy the burden of proof, the provider must meet the documentation requirements for the type of variance requested. All variance requests must include:
1. A medical opinion stating why the proposed care is appropriate and medically necessary for the patient
2. Certification by the requesting provider that the patient agrees to the proposed care, and
3. An explanation why alternatives under the MTGs are not appropriate or sufficient

Additionally, requests to extend treatment beyond recommended maximum duration/frequency must include:

4. Objective evidence that the requested treatment has produced functional improvement,
5. Further improvement is reasonably expected with additional treatment. Documentation should include explanation as to why treatment has not produced maximum effect and
6. Proposed plan for additional treatment with the treatment duration and frequency, and functional goals.

Finally, for treatment or testing that is not recommended or not addressed, the following must be documented:

1. A description of any signs or symptoms which have failed to improve with previous treatments provided according to MTG recommendations
2. Proposed treatment plan and an explanation of why proposed treatment or testing is necessary at this time, including specific functional goals, if applicable.
3. Medical evidence in support of efficacy of the proposed treatment or testing – may include relevant medical literature published in recognized peer reviewed journals.

HOW LONG DOES THE CARRIER HAVE TO RESPOND TO MY DOCTOR'S MG-2 REQUEST? WHAT DOES THE PROCESS ENTAIL?

The insurance carrier has 30 days from the date of receipt of the variance request to have the IME performed and respond to the variance request. Review by the insurance carrier's medical professional is not an IME or a record review. An IME involves a physical examination of the claimant and must be performed by an examiner authorized by the Chair pursuant to Workers' Compensation Law §§ 13-a (4) (b) and 137 (3)(a). A review of records, as defined in 12 NYCRR §324.1(i), is an evaluation of the medical records, test results, depositions, transcripts, and other records and reports in the Workers' Compensation Board's electronic case folder by a medical provider authorized by the Chair to treat claimants or to conduct IMEs. Review of the insurance carrier's medical professional is new and allows the insurance carrier to use a medical professional it already employs or contracts with to provide utilization review services. Specifically, an insurance carrier's medical professional, as defined in 12 NYCRR §324.1 (c), is a physician, physician's assistant, nurse practitioner, or registered professional nurse licensed by New York or the state where the professional practices who is either: 1) employed by the insurance carrier; 2) has been directly retained by the insurance carrier to review its claims and advise the insurance carrier; or 3) is employed by a URAC accredited company retained by the insurance carrier through a contract to review claims and advise the insurance carrier or Special Fund.

If the insurance carrier has a variance request reviewed by its medical professional, it must respond to such request within 15 calendar days of receipt of the request (12 NYCRR §324.3[b][2][i]). If the insurance carrier decides to obtain an IME or review of records to respond to a variance request, it must notify the Chair within 5 business days of such decision and respond within 30 calendar days of receipt of the request (12 NYCRR §324.3[b][2][ii]).

What steps are necessary if the carrier wants to obtain an IME after receiving an MG-2 Variance Request?  

Step 1:If the carrier wants to schedule an IME, the first step is to respond to the MG-2 within 5 business days of receipt by completing Section D (Notice of Independent Medical Examination [IME] or Medical Records Review.) The MG-2 response must be sent by same day transmission (or regular mail to the provider if the provider has no electronic means of receipt) to the treating medical provider and the Workers' Compensation Board. 
 

Step 2:When the IME report has been completed, the carrier must then complete the second step which is to provide a final response to the MG-2 within 30 days of receipt of the MG-2 by completing Section E (Carrier's/Employer's Response to Variance Request). The MG-2 final response must be sent by same day transmission (or regular mail to the provider if the provider has no electronic means of receipt) to the treating medical provider, the Workers' Compensation Board, claimant, claimant's legal representative, if any, and any other parties. In Section E the carrier must state the basis for the denial in detail and attach the IME report or identify the IME report by document identification number and the date received by the Board if the IME report is already in the Board's electronic file (12 NYCRR 324.3[b][2] and [3]). 

If the Carrier does not follow the procedure properly or does not respond, then the variance request is deemed automatically authorized.  

MY DOCTOR WANTS THE INSURANCE CARRIER TO GIVE WRITTEN AUTHORIZATION BEFORE PERFORMING SURGERY, EVEN THOUGH THE SURGERY REQUESTED IS PRE-AUTHORIZED, BUT THE INSURANCE CARRIER REFUSES. NOW WHAT?

Since their establishment, the new Medical Guidelines have been both a blessing and a curse.  Although the goal was to:

• Set a single standard of medical care for injured workers,
• Expedite quality care for injured workers,
• Improve the medical outcomes for injured workers,
• Speed return to work by injured workers,
• Reduce disputes between payers and medical providers over treatment issues,
• Increase timely payments to medical providers, and
• Reduce overall system costs.

that was not all that it did.  It also created a climate of distrust by doctors, who refuse to provide even the pre-approved treatments under the guidelines without written pre-authorization by the insurance Carrier themselves.   The guidelines foresaw this issue, and provided solutions as follows:

A. Pre-authorization (C4AUTH): For treatment of injuries to the mid and low back, neck, knee, shoulder and Carpal Tunnel Syndrome, pre-authorization is only required for procedures listed in question #1 Pre-Authorization. The pre-authorization process, used for treatments or procedures exceeding a $1,000 threshold, continues to be used for all other body parts. The pre-authorization process uses the C-4 AUTH form and it gives the carrier 30 days to respond to a request. During that period, the carrier has the right to obtain an IME or records review. To deny a pre-authorization request, the carrier must show a conflicting medical opinion.

B. Optional Prior Approval (MG-1):This process is more limited in focus, and is designed to only answer one question, "is the requested treatment or test a consistent application of the guidelines?" Providers must electronically submit the (MG-1) form. Carriers have eight business days to respond. Disputes are resolved by a binding decision of the Board's Medical Director's Office. The process allows medical providers to obtain a determination prior to treating on whether the requested treatment is consistent with MTG recommendation. It allows carriers to object before a test or treatment is performed.

But here is the catch: Although the regulations provide for an optional prior approval procedure where the medical provider can request optional prior approval from a PARTICIPATING insurance carrier to determine correct application of the Guidelines (A Board form (MG-1) is available for this purpose on the Board's web site), this process is only available if the insurance carrier or employer is participating in the optional prior approval program. A list of insurance carriers and employers who have opted out of the optional prior approval process is available on the Board's web site. Search for Carrier Contacts and Participation.  .  An insurance carrier who is not participating is not required to respond to an Optional Prior Approval request.

Somehow, many doctors, often due to the policy of certain hospitals, refuse to perform treatments such as surgeries without pre-authorization, and given that the Carrier is not required to give such authorization in writing, the Claimant suffers.   Ifa carrier has opted out of the Optional Prior Approval program, the Board will not respond to MG-1 requests submitted by the claimant's medical provider. Medical providers are encouraged to treat the claimant in accordance with the Medical Treatment Guidelines and submit timely bills to the carrier or self-insured employer.  Hospitals and treating physicians must familiarize themselves with the law and understand that the Carrier CANNOT DENY PAYMENT FOR TREATMENTS PRE-AUTHORIZED UNDER THE GUIDELINES.  As an attorney, I often find myself being the voice of reason with doctor's offices, but it doesn't always work.  Often times this means a switch in doctor is warranted.

Am I Covered By Workers' Compensation Law if I Fall at My Work's Parking Lot?

Depending on certain situations, yes.  Under the ingress/regress rule you have the right to safely enter and exit your place of work.  But many factors come into play, such as where you fall in the parking lot, you will be able to get workers' comp.  However, even if you are not covered by workers' compensation, you probably will be able to sue the party responsible for to properly maintaining the parking lot.  So you won't be left with no recourse. 

How Do I Calculate My Average Weekly Wage?

Your Average Weekly Wage (AWW) is an important factor in the value of your workers’ compensation claim, because your wage benefits will be highly dependent on how much you made per week before taxes while working the year prior to the accident.  It is the basis for all monetary calculations the workers’ compensation board will make throughout your case.  Making sure your AWW is accurately calculated  from the beginning of your case can mean the difference between hundreds or even thousands of dollars in your pocket over the course of your claim.  There are several different methods for calculating an AWW.  These methods, which are usually decided upon by the Judge but argued by your lawyer, depend heavily on how long you held the job you were in at the time of the accident.

Employed in the same industry, for a full year, 5 days per week

If you held pretty much the same job, 5 days per week, for a full year your AWW is calculated using the “260 multiplier.”  First, take your total wage for the year prior to the injury and divide that number by the actual number of days you worked to get your “daily wage.”  Then, take your daily wage and multiply it by 260 (which is the average number of days per year worked by a 5-day per week worker).  Then, divide that amount by 52 to get your “Average Weekly Wage.”
For instance, let’s say you made $40,000 in the year before your accident and you worked 248 days.  Your average weekly wage calculation would look like this:
$40,000 ÷ 248 = $161.29; then $161.29 X 260 = $41,935.48; then $41,935.48 ÷ 52 = $806.45
So, your average weekly wage using the 260 multiplier would be $806.45

Not employed in the same industry for substantially a whole year

If you only worked part of the year, or if your job changed substantially halfway through the year, it is important to figure out what you actual average wage was in the job you held at the time you were injured.  In order to do that your employer may be asked to provide the payroll information for a “similar worker” who has worked the whole year, so that the Workers’ Compensation Board can see what your AWW would be if you had worked that position for a full year.  In that situation the same calculation as above would be applied, but using the similar workers’ wages instead of yours.  That means your employer would have to supply the Carrier with a similar worker's payroll.  If none existed the next step would be to look at the industry standard.

Seasonal or Intermittent Workers

If you hold a job in which you are only employed for part of the year, in road construction or landscaping, the court may apply a “200 multiplier” to determine your AWW.  So, if you made $40,000 in the year before your accident, but you only work April-November (160 days), your average weekly wage calculation would look like this:
$40,000 ÷ 160=$250; then $250 X 200=$50,000; then $50,000 ÷ 52= $961.54
So you’re average weekly wage in this scenario, using the 200 multiplier would be $961.54

If I Get Injured At A Company Holiday Party, Will That Be Covered By Workers' Comp?

The main question to ask is: did your employer sponsor the event?  If the answer is yes, then most likely it will be covered by comp.  The only tricky part could be the element of intoxication, because most people drink at holiday parties, and intoxication means you most likely don't have a comp claim.  But if you were sober and the company sponsored the event and you were injured at the event then yes, you probably have a comp claim.  Just remember that you must go to the doctor and have medical evidence that this injury happened at a work event, you must notify your employer, and you must file a comp claim (by filling out and submitting a C-3 form) with the workers' compensation board in order to start the process. 

How Do Child Support Obligations Affect Workers' Compensation Benefits?

It's very simple: in the eyes of the law your child comes first.  Hopefully that is also true in your own eyes, but, legally, it will definitely be true.  It does not matter that the findings of child support were made by a different judge in a different court of law, if you owe monies (arrears) then a lien can be placed against your workers' compensation wage benefits.  However, it is understandable that you may be worried about being able to afford the amount of money you were directed to pay in child support now that you are out of work and receiving workers' compensation.  If you feel you can no longer afford the same amount of child support because you are out on comp, you should talk to your family lawyer and go back to the court that directed the child support to see if they can lower the amount based on your newfound financial status and inability to work to earn more money.  It is possible that they will adjust the amount until you are able to return to work. 

Are Strokes and Heart Attacks Covered By NY Workers' Compensation Insurance?

Technically, yes.  BUT these are VERY difficult to prove.  You would have to show that your employer put you through extreme and unusual mental or physical stress that directly led you to have a heart attack or stroke, and that has to be well documented in your medical report as well.  The good news is that even if you had a prior heart condition or other risk factor not associated with your job you could still get compensated by comp.  But because these are some of the most difficult claims to establish you definitely will need an attorney's help and not every attorney will be willing to take this type of case. 

Are Injuries At Company Sponsored Events Covered By NY Workers' Compensation?

YES!  Generally speaking, if you are injured while attending a company sponsored event in NY you will be covered by workers' compensation insurance.  But you must be mindful that the same usual exceptions, such as accidents as a result of alcohol intoxication, physical fighting, etc or if the injury occurs after the event has finished - all cases in which you may not be covered by comp.  Make sure you file a claim as soon as possible and if anyone is a witness to the accident get their contact information.  Witnesses are protected and your employer cannot retaliate against them for testifying in a comp claim. 

Are NY Workers' Compensation Benefits Taxable?

NO!!!   If you are receiving workers' comp benefits in NY then note that your benefits are generally not taxable for income tax purposes.  If you are receiving SSD though those benefits are taxable, and you will receive a 1099 from the Federal Government.  There are situations where your social security disability benefits are lowered due to workers' comp but you pay tax in the whole social security amount - something called a back door tax - so you should definitely speak with an SSD attorney to get your answers regarding whether to apply to SSD benefits. 

What Does "Reserved Decision" Mean in NY Workers' Comp?

Reserved Decision means that the Judge has not yet made up his mind, but will write his ruling after having time to review all the evidence.  Usually, from practice, it means he will find against the Claimant and does not want to say so in front of the Claimant at a hearing.  BUT sometimes it has nothing to do with that and all to do with still needing more time to review the entire record.  The judge then files a written decision.

If I Return to Work After a Work-Related Injury But Work Part-Time Only or Make Less Money, Am I Still Entitled to Workers' Comp Benefits?

YES, so long as your decreased paycheck is because of your work-related injury, meaning that you can only now work part time or in a different position because of your work injury.  You will need medical reports saying you have work restrictions, BUT you will be able to receive 2/3 of the difference between what you used to make prior to the accident and what you are making now up to the statutory maximum rate of benefits for your date of injury.

If My Doctor Says I Have A Work Related Disability, Am I Automatically Entitled to Benefits?

Unfortunately, NO.  It is not that simple.  Even though NY Workers' Compensation Law requires that you produce a medical report showing that you have a causally related diagnosed injury or condition AND saying that you are disabled from work (and the specific level of disability you have), that is just ONE part of the administrative process.  In order to determine whether you are entitled to benefits there are other factors that must be taken into account, such as whether there was proper notice given, whether you truly are an employee, whether there is contrary medical evidence (such as an IME) saying you are not disabled or that your disability is not causally related, etc.  So although you MUST have a medical report indicating you have a causally related disability from work that will not automatically entitle you to comp benefits. 

Do NY Workers' Compensation Wage Loss Benefits Ever Get Adjusted For Inflation or Cost of Living As Time Passes?

NO!!!!  They do not.  In NY weekly wage loss benefits are based on your average weekly wage at the time of your accident, and the rate of benefits is also fixed by the cap amount correspondent to your date of injury.  So even though the cap increases every July, you do not get an increase unless you have a new accident and therefore a new date corresponding to a new cap.  There is nothing your attorney or the Judge can do to change that fact.  The only way to change the law is through the legislature passing new reform. 

Why Do I Have to Continue Treatment During the Life of My Workers' Comp Case?

The only way to continue to receive weekly wage benefits is to provide proof that you are unable to work due to the work related injury that made you stop working in the first place.  So, if you do not continue treating and seeing your doctor, you do not have proof of a continued disability and you do not receive benefits.  The law now requires that you show evidence of a continuing disability at least every 90 days in order to continue to be entitled to wage benefits. 

If You're Hurt and Distraught, Call Medici Law!

I have developed a jingle and I am working on getting it made.  I was also recently named best workers' comp attorney in NY as of 2014 - a huge honor.  You can view my client reviews here: http://www.avvo.com/attorneys/11747-ny-camila-medici-3797474/reviews.html.  Currently I rely on word of mouth to get the word out about my practice, but soon I may dive into the world of advertising...not sure how soon however.

My practice was a big dream of mine.  I am a low volume firm in a high volume industry and it pays off for me and my clients. Maybe more for my clients than for me, but I don't mind that.  I am happy that I know I can do right by them, get them more than anyone else in record time, beating my competition.  It's sad that still most people don't know I exist, so, I hope those of you who do and are happy about me will help me get the word out, and in turn I will definitely make a HUGE difference in yours or your friends' case.

If you're hurt and distraught, call Medici Law and see the Medici difference.  Medici Law P.C. provides unparalleled service and representation.  I gave up a prestigious position of Head Attorney of the Workers’ Compensation Department of a prominent Law Firm because I believed in my vision and wanted free-reign to accomplish my goals. I wanted a firm that was in sync with the needs and advancements of today; a firm that recognized the individual needs of human-beings and purpose of life, which is happiness.

This may sound simplistic at best, but upon reflection it is quite complex. Many great professionals give up their careers because they are not happy with the sacrifices they are required to make in order to keep it, and the ones that make the sacrifices in order to stay often become jaded. The inevitable result of both is a downfall in the quality of services rendered.

Technology has brought us the ability to provide the same – if not better – services without as many sacrifices. There is no reason to be confined to an office and bound by hours of operation when most tasks can be accomplished from anywhere, at anytime. Laptops, Blackberries, Cell-Phones, Video-Conferences, Cars, E-mail, Fascimiles, Remote Connections, all of those and more have made it possible for professionals to exercise their profession without giving up their humanity.

My objective is to become the first Results-Only Work Environment (ROWE) Law Firm in the world. I believe that it is in the best interest of both my clients and my employees to offer a stress-free, high productivity environment that rewards its workers for the results they accomplish and not for how much of their time they give up to make me feel in control. Face-time does not equal quality-time. Adopting this philosophy allows me to cater to all of my clients’ needs and provide them with unparalleled quality of service and results. At Medici Law we only care about how well and efficiently we cater to you and handle your case. We care about your quality of life during and after this process. We treat you as we would like to be treated, with respect, dignity, humility and delivery of an optimal outcome. And best of all, because we are ROWE we truly never stop working for you. We do all we can to accommodate your schedule for Attorney-Client meetings and we use all methods of communication to ensure we get back to you right away no matter how busy we may be at the time.

In choosing our firm, rest assured that you will benefit from our experience, integrity, and personal attention in your legal matter.

Experience: We are highly experienced and well qualified to represent you, your family, and your friends. We focus our practice in Workers’ Compensation representation, but we are also connected to the very best Attorneys for every type of personal injury related litigation, including cases involving medical malpractice, auto accidents, slip, trip, and fall injuries, construction accidents, social security disability, nursing home/elder care and neglect or abuse, wrongful death, estate litigation, administration and planning, mass tort and product liability. If you or anyone you know has a legal matter that requires the assistance of an Attorney, do not hesitate to call, and we will work tirelessly to make sure you get the help you deserve from the very best.
Integrity: At Medici Law, P.C. we are committed to the highest ethical standards. When we make a promise, we keep it. We treasure the prominent reputation we have developed over many years of dedication to injured workers. You can be sure you are in good hands.

Personal Attention: While our practice grows over the years, one thing will remain constant: our dedication to personal attention. As our Client you can rest assured that your Attorney will not hide behind receptionists; you will get the respect you deserve and attention you need. We’ll explain the legal process and we will keep you informed every step of the way.

Every piece of information we give you is aimed at helping you maximize your case. If you have any questions at any time, we will be happy to talk to you. IF YOU ARE HURT AND DISTRAUGHT, CALL MEDICI LAW!  631-742-1272 (TEXT OR CALL), CMEDICI@MEDICILAW.COM, OR VISIT WWW.MEDICILAW.COM.

Most Recent Wage Benefits Table and Info

STATUTORY MAXIMUMS:

 

Accidents Taking Place On or After                       Maximum  

July 1^st ,2014                                                             808.65

July 1^st, 2013                                                             803.21

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

And as of July 1st, 2015 it will change once again!  

Also, remember this:

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. 

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