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