PREVIOUS INJURIES

In my experience, the biggest mistake workers make on a day-to-day basis is to not fully disclose what prior injuries they ever had.

Here is the easiest way to stay out of trouble:

• Make a written list of every injury you ever had in your whole life.     

• Tell the carrier and the Board about every injury you ever had, even if you think it’s not relevant.  “The biggest mistake workers make on a day-to-day basis is to not fully disclose what prior injuries they ever had. ”The easiest ways to get in trouble and the common mistakes Workers’ Comp clients often make including the following (listed from the smallest to biggest error):

1. I didn’t mention that previous injury on my C-3 claim form because the previous injury wasn’t a Workers’ Comp case.

2. I didn’t mention that previous injury on the questionnaire the IME doctor gave me because I think it may have been a different part of my body that I injured before.

3. I didn’t mention that previous injury to my doctor because

she has all the records and should know I was injured before.

4. I didn’t mention that previous injury to my employer’s doctor because the employer has all of the records about my previous injury because it happened at the same employer.” Do not assume anything. If you assume someone in the WC case knows about any of your previous injury or injuries and you don’t come out and actually list them, especially if you are asked about any previous injuries, you may be accused of fraud.

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M E D I C A L T R E A T M E N T

Many parts of the body (like shoulders, neck, knees, and back) are covered by the Medical Treatment Guidelines (MTGs). If a body part is covered, then there is a certain amount of treatment that an injured worker is allowed. Depending on the situation, an injured worker’s doctor must ask permission to give more treatment than what is allowed by filing one of a group of special forms with the Board. Often doctors fill out the wrong form or fill out the right form incorrectly, leading to a denial of treatment to the unsuspecting injured worker. Under the MTGs, many treatments and many types of surgery are pre-authorized. This means a Workers’ Comp treating doctor can provide the treatment or surgery without the delays inherent in waiting for the carrier or the Board to approve them."For a free consultation to explore your legal options call the attorney at Daniel M. Morrin today" (516) 307-8000 and also visit our website. http://mydisabilityatty.com

PAIN

Most of my clients suffer from pain.The Workers’ Compensation Law does not recognize pain, or suffering, as an item that is compensated with money.

At best, it is just one factor that is considered when the Board decides whether someone is disabled or not.

“The Workers’ Compensation Law does not recognize pain, or suffering, as an item that is compensated with money. ”Be that as it may, pain plays a big role in the WC system. Often,

workers are forced back to work despite being in extreme pain. Carriers must pay or reimburse for pain medications if the medications are related to the accident. There are even Medical Treatment Guidelines (see below) that deal with chronic pain. A huge problem in my opinion is that law judges often underestimate the amount of pain a claimant is in. This error may lead to decisions that find a client not disabled or mildly disabled when he or she is in fact totally incapable of working because of pain. The difficulty lies in the fact that no one can really know the pain someone else is experiencing. At best, it’s just an educated guess. Judges do not automatically find a disability, even if the injured worker claims to be in severe pain for obvious reasons. It is a lot more complicated than that (see Proving Disability). "For a free consultation to explore your legal options call the attorney at Daniel M. Morrin today" (516) 307-8000 and also visit our website. http://mydisabilityatty.com

TEMPORARY OR TENTATIVE RATES

If there is a money award made to a claimant by the WCB and the written decision lists “TR” (“tentative rate”) next to the weekly figure, then the weekly rate is “temporary” (tentative.)

In other words, it is not written in stone and can be changed. The primary purpose here is for situations in which the judge or Board has conflicting medical reports or currently lacks the necessary information to calculate the exact weekly money rate that is owed. Instead of paying nothing until the conflict is resolved or the information is obtained, the Board awards a TR for the time being and then revisits this weekly rate, and possibly modifies it retroactively, at a later hearing.

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STIPULATIONS

Stipulations are similar to settlements but are not under Section 32, so they are not true “releases” of the legal right to reopen the case. Any written agreement between a claimant and the employer or its insurance company other than a Section 32 agreement is called a stipulation. However, if you decide to try to reopen an approved stipulation later on, a judge might not let you do so very easily because of the age-old proverb, “a deal is a deal.” At the same time you would probably anger the insurance company, who would likely try to make life difficult for you since you essentially would be backing out of a prior agreement.

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SECTION 32 SETTLEMENTS (OR SIMPLY SETTLEMENTS)

Section 32 is one of the most complicated parts of the WC system in New York. There are a lot of types of agreements in the Workers’ Compensation system, but only under Section 32

does the injured worker waive his or her right to ever reopen the case. There are two types of Section 32 settlements: indemnity-only and full and final.

• Indemnity only: Forever give up biweekly checks from this case in exchange for one lump sum of money. Medical treatment going forward, however, remains the responsibility of the employer/insurance carrier.

• Full and final: Forever give up both the right to collect money and medical treatment from this case in exchange for a lump sum or a “structure.” This type of settlement often requires what is called a “Medicare Setaside,” which can delay finalizing the settlement for many months.

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PERMANENT INJURIES: SCHEDULE LOSS OF USE

There are special types of money awards for “extremities” only (limbs). These types of awards do not include the head, neck, back, or psychiatric injuries. This type of settlement does not

stop the injured worker from reopening the case in the future if the injury gets a lot worse.

Schedule loss of use (SLU) is the most overlooked source of monetary compensation in the entire WC system. Many injured workers do not understand that if you permanently injure a

limb, your vision, hearing, or face, or a combination of these body parts, you may be entitled to large money awards even if you lost no time from work.

Examples from the schedule of body parts:

• 100% loss of a thumb is worth 75 weeks of benefits

• 100% loss of an arm is worth 312 weeks

• 100% loss of a leg is worth 288 weeks

• 100% loss of a foot is worth 205 weeks

• 100% loss of an eye is worth 160 weeks

• 100% loss of vision in one eye is also worth 160 weeks

“If you permanently injure a limb, your vision, hearing,or face, or a combination of these body parts, you may be entitled to large money awards even if you lost no time work.”

Normally, the injured worker has less than a full loss of the limb, and the percentage is determined by looking at doctors’ opinions. SLU awards are paid out at the maximum rate. For example, Teresa injures her shoulder at work. She earns just $600 per week as a medical secretary. Her doctor examines her a year after the accident and tells her that she has permanently lost 15 percent of the use of her arm due to the injury. This medical report would give her (if the Board decides it is correct) 15% of arm = 46.8 weeks x maximum rate of $400 (two-thirds of Teresa’s salary)= $18,720 tax free Both the carrier and the injured worker normally obtain a doctor’s report stating what percentage SLU the injured worker has.

The Board is not allowed to issue a decision that finds a permanent loss of use between an injured worker’s doctor’s SLU percentage and the carrier’s IME’s SLU percentage. The only

way the Board can issue a decision in the beginning is if the two reports agree with each other. If the two reports disagree, the Board orders depositions so that the judge can decide which of

the two reports is actually correct. Compromises can be reached, however, by the worker and the carrier through stipulations.
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HOW AWARDS FOR LOST TIME ARE CALCULATED

Currently, the minimum you can receive for lost time is $150 per week, and the maximum you can receive (for accidents from July 1, 2015, to June, 30, 2016) is $844.29 per week. The state maximum increases every year on July 1. The maximum rate for your case is determined by the date of your accident—when you were injured. The formula for calculating your weekly rate follows:

• Total disability = 2/3 (two-thirds) of your weekly wage, or the maximum rate in effect for your date of accident, whichever is less.

• Partial disability = 2/3 (two-thirds) of your weekly wage x the percentage of disability, up to the maximum rate. Example: If Laura has a weekly wage of $1200 before her accident on July 2, 2015, her total disability rate is $800 per week. If she is later found 50 percent disabled, her partial disability rate would then be reduced to half, or $400 per week.
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AWARDS

An award is an order by the WCB to the employer or insurance company to pay money. When

an injured worker receives money from the insurance company that wasn’t ordered by the

WCB, it is called a “voluntary payment,” not an award. There are five main types of awards in

New York Workers’ Comp:

• Awards for lost time

• Awards for schedule loss of use

• Awards for facial disfigurement (scars, etc.)

• Penalties against employers/insurance companies

• Section 32 waiver agreements

HOW AWARDS FOR LOST TIME ARE CALCULATED

Currently, the minimum you can receive for lost time is $150 per week, and the maximum you can receive (for accidents from July 1, 2015, to June, 30, 2016) is $844.29 per week. The state maximum increases every year on July 1. The maximum rate for your case is determined by the date of you accident—when you were injured. The formula for calculating your weekly rate follows: • Total disability = 2/3 (two-thirds) of your weekly wage, or the maximum rate in effect for your date of accident, whichever is less. • Partial disability = 2/3 (two-thirds) of your weekly wage x the percentage of disability, up to the maximum rate. Example: If Laura has a weekly wage of $1200 before her accident on July 2, 2015, her total disability rate is $800 per week. If she is later found 50 percent disabled, her partial disability rate would then be reduced to half, or $400 per week.

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CONTESTED CASES

These are called “controverted.” A controverted case is an accident or injury that the employer argues is not a valid Workers’ Compensation case. In such a case, the Board will always schedule at least two hearings to resolve the issue and will take sworn testimony in front of the law judge from the claimant and the employer. The judge will then decide whether the case is “compensable,” meaning covered by the Workers’ Compensation Law. A few examples of typical controverted cases are ones in which the employer claims the claimant made up the whole case or faked the injury, claims the employee never notified him or her of the accident, or claims the employee wasn’t actually at work when the employee was injured. http://mydisabilityatty.com

LITIGATION

In Workers’ Comp, there are hearings in which the claimant and “lay” (nonmedical) witnesses may testify. These are referred to as “trials.” If a doctor is asked to testify, this testimony is conducted over the telephone outside the presence of a law judge, and a court stenographer then sends the typed transcript of the testimony to the Board. These are called “depositions.” Also, every decision that is made by the Board may be appealed by any party that is unhappy with the decision. Appeals may

take up to a year, or longer, to be decided. Together, the procedures where testimony and

evidence is given to a judge and decisions are appealed are referred to as “litigation.” It is not a good idea to get involved in litigation against an employer and its insurance company without a lawyer. http://mydisabilityatty.com

STRESS AND PSYCHOLOGICAL CLAIMS

Generally, in New York, you cannot file a valid Workers’ Comp claim for general job stress. They are almost impossible to win. As opposed to stress claims, claims for psychological injury are relatively easy to prove if you have the proper medical report from either a psychiatrist or psychologist.“ Claims for general job stress are almost impossible to win.”

What’s the difference between the two?

• Stress is emotional problems due to the normal everyday stress that all workers suffer from at some time. This includes being around hostile or mean supervisors and coworkers or firings, demotions, and transfers. None of these things can be the basis for a Workers’ Comp claim in New York.

• Psychological injury is due to an unusual single incident, like being assaulted at work, or due to a severe reaction to an injury, such as posttraumatic stress disorder or depression. http://mydisabilityatty.com

WHAT ACCIDENTS ARE COVERED BY WORKERS’ COMP?

Travel to and from work

The normal rule is that accidents occurring while traveling from home to work or from work to home are not covered by Workers’ Comp. Two common exceptions include:

1. If you have arrived at, or are still on, the premises of the employer (even if you are walking through an entrance or exit), you are covered. When you clocked in or out of work is usually not important.

2. If you are considered an “outside” employee (someone who does not have one fixed place he or she works everyday), you are covered for any accidents while traveling. Examples of outside employees include traveling sales people, visiting nurses, and field workers who do not report to a building but drive around all day.

Parking lots

Accidents in parking lots that have nothing to do with the employer are generally not covered. But if the accident occurs in a parking lot where the employer told the employee to park, is designated for employees to park, or is customarily used by employees to park in, then accidents and on the way from the lot to the building or the building to the parking lot are covered.

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OCCUPATIONAL DISEASES AND INJURIES

There are two types of Workers’ Compensation claims in New York: accidents and occupational claims. Accidents happen at a specific date and time (I hurt my back at 4:15 pm on July 7).

Occupational claims are diseases and injuries that occur over a period of time that are common (inherent) to your occupation and are caused by your work.“

There are two types of Workers’ Compensation claims in New York: accidents and occupational claims. "Common types of occupational injuries/diseases are asbestosis, silicosis, carpal tunnel syndrome, and hearing loss. (There are actually dozens of occupational diseases listed and recognized by the WC law itself.)

Examples of occupational diseases

• A computer technician develops carpal tunnel syndrome from typing all day.

• A steamfitter develops bilateral shoulder problems from repetitively tightening pipes with his arms.

• A jackhammer operator develops hearing loss from—well, you get the picture. Obstacles when filing occupational disease (OD) cases in New York include the following:

1. Most employers will insist that you put a date of accident on an incident report. Occupational claims don’t have a date of injury until after the Judge decides what the date should be.

2. Many WC doctors don’t understand how to write a proper medical report for an OD case.

3. The C-3 form doesn’t have a section to indicate that you are filing an OD case. (I think it should.)

4. Most OD cases are contested.

5. The time limit for filing an OD case is “two years from the date you became disabled AND knew or should have known that your condition was due to your occupation.” This tricky time limit causes problems in many cases for the injured/ill worker.

6. It’s virtually impossible to handle an OD case without a lawyer.

7. OD cases must be filed against the last employer that caused injury—not the employer that caused the most injury.

8. You may have to have multiple insurance companies come to many hearings to have the judge figure out which carrier is responsible.

9. OD cases take a long time to prove, usually.

10. They’re complicated (see 1–9.) Despite all of these obstacles, you should immediately file both an incident report and a C-3 for an occupational disease as soon as you realize you have one. On the incident report, you can indicate “no date, happened over time, occupational.”

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PROVING DISABILITY

Proving disability is accomplished by submitting medical reports, usually C-4.0 and C-4.2 forms. The tough part for injured workers happens when the carrier produces its own medical reports, called independent medical examinations (IMEs). Any C-4 is considered to prove disability for ninety days from the date of the exam it describes. If a medical report doesn’t contain one of the following things, it doesn’t prove squat:

• A percentage impairment anywhere from zero (not disabled) t0 100 percent (totally disabled)

• A word description of disability. Word descriptions of temporary disability include the following:

• Total (100%)

• Marked (75–99%)

• Moderate (50–74%)

• Mild (25–49%)

• None (0%)

These percentages are completely different from those used to describe SLUs. Be careful not to confuse the two.

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CAUSAL RELATIONSHIP

A “casual” relationship is what you had with the attractive kid in your biology class in high school. I am not speaking here about “casual”—as it is often mispronounced—but rather about “causal.”

A causal relationship is one of four things you have to prove to win a Workers’ Compensation case. It means that the injury or illness was caused by your work. An example of a medical statement that does not comment on causal relationship:

“After lifting heavy cement bags at work for three hours, David sustained a heart attack.” Workers’ Comp would say, Uh- uh: no good. Not acceptable. An example of a medical statement that does comment on causal relationship: “After lifting heavy cement bags at work for three hours, David sustained a heart attack.

In my medical opinion the lifting of the heavy bags of cement at work played a part in, and contributed to, David’s heart attack.” Workers’ Comp would say, That is a good statement of causal relationship. The bottom line: The heart attack has to be found causally related by the judge to be covered by Workers’ Comp.

See the difference? That is causal relationship in a nutshell. Generally, a medical report is no good in workers’ comp unless it contains a statement of causal relationship. Accident, Notice and Causal Relationship Accident, Notice and Causal Relationship (ANCR, or for occupational disease, ODNCR) is the acronym for the things an employee has to prove to win the case.

If the judge establishes WORKERS’ COMP IN NY MADE SIMPLE ANCR, then your case was officially determined to be covered by Workers’ Compensation.

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TIME LIMITS

There are five important time limits in New York Workers’ Comp:

1. Reporting an injury to your employer: thirty days (waiting longer can be excused by a judge in many cases)

2. Filing a C-3: two years from date of injury or disablement

3. Appealing or objecting to a judge or Board decision that you don’t like: thirty days

4. Reopening a case that has not been previously established in a decision by the Board: seven years to claim money

5. Reopening a case that has been previously established in a decision by the Board: eighteen years to claim money The bad news is bad things may happen if you miss the above time limits. Really bad things. The good news is there is no time limit to reopen an established case for treatment. (But remember, cases previously closed on a full and final Section 32 may never be reopened.)

E S TA B L I S H I N G Y O U R CASE

 If you hire a lawyer, he or she will first and foremost try to make sure that your case is properly “established.” This means that the Board has issued an official, written decision finding that your injury was sustained at work and deciding what parts of the body were injured. If your case was accepted and even paid by the carrier but there was never a Workers’ Compensation Board (WCB) decision officially deciding it, your case is not established.

WCB NUMBER

Probably the most important thing you can do if you are injured at work is to make sure you receive a WCB number for your case. A WCB number is not the case number given by the carrier. It is a separate number assigned by the WCB. For volunteer firefighters, it starts with F. For volunteer ambulance workers, it starts with the letter A. For everyone else, a WCB number starts with the letter G.

“ The most important thing you can do if you are injured at work is to make sure you receive a WCB number for your case.”

Once you have a WCB number for your case, you will no longer be at the complete mercy of the carrier. Without a WCB number, the Board cannot help you. To obtain a WCB number, you need to file a C-3 Claim Form with the WCB (see Filing a Claim).

ATTORNEY REPRESENTATION

  Having an attorney represent you at your hearing is crucial. The number one reason being that the employer is always represented. Except for the State Insurance Fund, which uses non-attorneys most of the time, all self-insured employers and carriers will have an attorney at your hearing whose job is to protect the employer and carrier and who may use every trick in the book to try to keep money out of your pocket. Handling comp hearings is an art. In my opinion, it takes years to get good at it. Comp attorneys who go to the Board handle multiple hearings each day. When I am “on calendar,” each of my files will be fully prepared and organized and I will be ready to present, and discuss, each case in the space of ten minutes:

• What needs to be decided moving forward

• Pay stubs and proof of earnings

• Up-to-date medical reports showing disability

• Past medical reports showing disability

• Medical reports that prove new sites of injury that haven’t

yet been officially recognized in the case

• All of the diagnostic test results

• Hospital records

• Objections to bills

• Requests for treatment

• Legal documents about the attached personal injury settlement And at the same time, I need to know the law.

“The typical Workers’ Compensation hearing lasts only a few minutes.”

The best attorneys can wade through the unimportant issues and get to the heart of the matter quickly and forcefully, because the typical Workers’ Comp hearing only lasts a few minutes. If the attorney gets distracted or doesn’t hone in on the important issues quickly, the case may go in the wrong direction. There may be “missiles” flying at the attorneys in all directions during a hearing, being hurled by the judge and the carrier attorney. The s--- may really hit the fan in a confusing and rapid-fire manner. It is up to the hearing attorney to stay calm, focus on the target, defend the client from this barrage, and fight when necessary (which is most of the time). Come to think of it, a hearing is a battle. And you should go into battle fully armed.