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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