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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