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.

CHOOSING LAWYERS

 Let me start by saying I have been proud to call myself a

Workers’ Compensation lawyer for over thirty years. It may

not be glamorous work, but I do truly feel that I help people

in need. A colleague of mine recently remarked, if personal

injury lawyers who get the “big hit” million-dollar settlements

can be compared to star quarterbacks, we of the Claimants’

Compensation Bar are the offensive linemen. We do the tough

work in the trenches at the Board every day. We make sure that

injured workers get their fair share against companies that have

lots of money to burn and try to deny those benefits.

A WC lawyer in New York will never ask you directly for a fee.

WC lawyers work purely on a contingency basis. This means

that, generally, they will only accept a case if they think that

they can make significant amounts of money for the injured

worker.

A Workers’ Comp lawyer’s main goal, then, is to “find the

money” in every case, which is not so easy to do sometimes.

How can a case be maximized to its full dollar potential while

covering all needed treatment for the injured worker? After all,

the more money we win for our clients, the more we make.

Daily, my law firm works extremely hard to obtain proper

medical treatment (e.g., tests such as MRIs, surgery, physical

therapy, etc.) for our clients. However, the Board does not allow

us to charge directly for this work. (Treatment is not considered

the same as money awards when we ask for a fee. Hence, most

attorneys in New York will not accept a Workers’ Comp case if it

involves only treatment and no potential money awards.)

For any attorney’s fee over $450, attorneys must submit a fee

petition that details the overall work we did on the case and the

time spent. It is then up to the judge to decide our fee, which

is not calculated as a strict percentage but is a flexible amount

based on how much work was done and the amount of money

“moving” to our client.

The majority of New York Workers’ Comp attorneys that I

deal with on a daily basis, both on the claimants’ side and the

carriers’ side, are nice, smart, sensible people. Some are even

funny as hell. Many are my friends. We are a small clique: we all

know each other. Still, this does not prevent us from doing our

jobs in a professional manner.

Workers’ Comp attorneys who have practiced daily at the Board

for a while have seen it all and done it all. We always have funny

“war stories” to tell and zany characters to talk about.

If an “outside” attorney who does not know the inner workings

of the WCB tries to handle a case there, that lawyer will be a fish

out of water. I don’t care if he or she is a Harvard-educated, Wall

Street partner who normally charges $800 per hour. That lawyer

will be completely lost if he or she tries to handle a WC case. We

even have a term for such a lawyer: a “tourist.”

When choosing a Workers’ Compensation lawyer, choose one

who concentrates his or her practice on compensation—that is,

one who goes to the Board every day. Also, choose a lawyer who

will do the three things necessary to keep their clients happy:

• Listen to you

• Communicate with you

• Fight for you

Clients automatically sense when a lawyer is not fighting for

them. I have always enjoyed the “good fight,” and always will.

“When choosing a Workers’ Compensation lawyer,

choose one who concentrates his or her practice on

compensation—that is, one who goes to the Board every

day.”

If you would like more information or are looking to retain legal

advice or an attorney for your Workers’ Compensation case,

contact my law office, the Law Office of Daniel M. Morrin, at

(516) 307-8000 or by e-mail at dmorrin@mydisabilityatty.com.

You can also visit our website at www.mydisabilityatty.com to

find more information about New York Workers’ Compensation

as well as our other areas of practice.