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New paths for Eliot Levine and Associates.
We are in the beginning sages of opening a new
section of the practice to cover disabled
veterans who are denied Veterans Disability
Benefits. I am presently reading up on the
appeals process and will begin to canvas for
additional support staff to interface with the
Northport VA and to do supplemental tasks in
the office rounding out the provision of
disability representation for my clients
before the associated agencies. We will now
provide legal assistance in the fields of New
York State Workers’ Compensation Law, Federal
Social Security Disability Law, Negligence and
Veterans Disability. We will continue to work
in various associations paralleling legal
services with affiliated legal providers.
Wifi Upgrades
In an attempt to improve this blog we have
modified our equipment by upgrading our system
WiFi with Cisco larger router, Cisco extender
and Apple TV effectively increasing bandwidth
generating faster streaming. System works
great and overcomes weak spots in building.
This now allows additional locations as base
for continued client contact with multiple
devices. We'll have to see if this generates
interest in the rest of the Workers'
Compensation Blog.
Overlapping Issues
Very often similar facts patterns, which at
first blush appear to be limited to a single
Workers' Compensation claim, may also be
susceptible to legal interpretations which may
lead to multidisciplinary issues that should
be pursued in parallel areas of the law. For
example, while an injury caused in and out of
the work place might suggest a Workers'
Compensation claim; if you are rendered unable
to do any work in the national economy as a
result of your injury and this keeps you out
of work for a year or more, you may also be
able to successfully pursue a Federal Social
Security Disability claim. An outside worker
who gets injured in the course of his or her
employment while driving in a vehicle may be
able to file for No Fault Benefits in the form
of increased personal income benefits. In some
cases a negligence case may also be brought
against the responsible party with adjustments
from successful awards for benefits provided.
Sometimes, individuals with long term
disability benefit contracts are permitted to
obtain LTD benefits from the same injury and
continue to receive Social Security Benefits
with limitations and relationships between
said benefits. Some individuals carry
retirement agreements which permit continuing
benefits from other areas of the law and
continuation of your Workers' Compensation
Benefit. For a proper legal interpretation of
your rights, it is best to contact your legal
representative and go over all possible
implications associated with the fact pattern
causing your injury and thereby permit a
proper evaluation of your specific issues.
As stated throughout this blog, these blogs
are only informational and / or educational
and therefore do not create an attorney /
client relationship. It is therefore always
suggested that you contact your attorney for a
full and meaningful discussion of your
individual rights and responsibilities.
New Years Eve Blog
Where do we go from here? Over the past many
months we have discussed Workers’ Compensation
issues. We’re now ready for a full court
press. This means in addition to filing your
claim and pursuing same you should be
following up with your representative’s office
by making in person appointments to keep them
informed of any changes in your treatment
needs and wage reduction issues. Our attorneys
and staff will file for hearings to try to
convince the compensation system to enforce
its rules and regulations. This has been an
uphill battle. Insurance companies try to
insulate themselves from active claimants.
Keep records. See your health providers and
make sure they file all necessary variance
requests documenting why the treatment they
desire is medically necessary and that
treatments already made are beneficial.
Ministerial calls to insurance companies
regarding late payments and the like are
ineffective for all. Congressional pressure
for increased hearings and penalties for non
compliance with the compensation requirements
seems best. Stay connected to your case and
representative. This will prove beneficial for
all. Have a Happy New Year from the Law
Offices of Eliot Levine and Associates.
The changing perspective of Workers' Comp.
In the few years since the advent of Governor
Spitzers' changes to the New York Workers'
Compensation Law; the name of the game, is no
longer get hurt and receive benefits for life.
The ever present reality is that injured
workers should receive medical benefits and
lost wages to compensate for the injury and
move on with their lives. This is no more
evident then the desire on all sides of the
issue to settle claims in the form of wisc
settlements or global sec 32 agreements
finishing off entire claims. Compensation was
never intended to be a life long indemnity
payment. Now, movement to claim value as soon
as medically practicable or possible is the
goal of all responsible parties.
As stated throughout these blogs, assistance
from a workers compensation representative
permits more advantageous results from a
system designed to respond more quickly to
participants who know what is required.
Proliferation of form requirements and short
statutory time periods have become the rule.
Failure to meet same can doom a claim or
produce an unfavorable result. Form has taken
precedence over substance. In such a world,
you are best off with representation from an
individual, practised in the field.
Forest for the trees, did we miss anything?
Along the way of this blog, I have been
commenting upon fairly complex New York State
Workers' Compensation issues and may have just
missed a basic understanding. To pursue a
Workers' Compensation case to a favorable
result; requires that the incident happens or
occurs as a result of the work experience.
This means not that you discovered the
condition while at work or that a condition
prevents you from working, but that the
specific condition must have occurred and
developed out of the work environment and is a
consequence of that event, in other words the
condition must be related to and develop from
the work experience itself. There are many
fact situations that will permit connections
over time but the connections themselves must
exist before you can attempt to obtain
causally related befits. You should ask
yourself a basic question. Why should my
employer be responsible for my treatment and
lost time. Unrelated sick time or vacation
time although paid by your employer pursuant
to an agreement of sorts does not by itself
require the Employer to be responsible under
the WCL. If you can reasonable show the
relation as a cause not a temporal appearance
at work; you should consider it compensation
and seek representation to investigate and
pursue you rights under the New York State
Workers' Compensation Law.
As repetitively stated, these blogs are
informational and limited in scope. A true
attorney client contact should be made to
better understand your rights in a specific
incidence. Please see our disclaimer through
these blogs.
Hurricane Sandy update Friday 11/2/2012
As most of Long Island knows first hand,
Hurricane Sandy has left long lines at the gas
pump, loss of power and closing of many
businesses. As a result, the Long Island
Hearing Points for Workers' Compensation and
the Social Security Office for Hearings and
Appeals in Jericho, aka ODAR has been closed
throughout the week of 10/29/2012. As a
service to my present clients , I have
attached a cell phone to my business account
to receive office calls at 631-234-5484. Since
our office fax and internet is not working,
you can still reach us as stated and we will
be picking up our internet off site where and
when the internet is available. I for one have
been out of my house since we have been
without power since Monday the 29th of Oct.
Our office is open and active for walk in and
appointments. Please continue to seek medical
care from your health providers. We will
follow up with them as time and electronics
permit. We wish to offer everyone our
continued concern and will assist where and
when able. This might be a good time to read
our blog in its entirety for general
information. If you need assistance please
contact us as stated.
Hurricane Sandy
As most of you realize, Hurricane Sandy hit
New York and New Jersey Monday Oct 29th. 2012.
What is more remarkable is that the Workers'
Compensation Board closed its downstate
Hearing Points for both Monday and Tuesday. In
years past, Governors were resistant to such
closures and injured workers and all persons
connected to the system were left to wonder
what they should do about scheduled hearings.
Governor Cuomo , helped all concerned by
acting appropriately and was out in front of
the storm. Rest assured, cancelled hearing
will receive prompt rescheduling and notices
will be forthcoming. All clients should
continue to attend treatment and keep contact
with their doctors and health providers when
safe to do so. Compliance with board
regulations and recent interpretations of the
Workers' Compensation Law will require
vigilance in protection of your rights. When
safe, contact your doctors, continue to make
your work searches and keep your attorney or
legal representative in the loop
Resolution of your Workers’ Compensation Case
At the present time, the resolution of a New
York State Workers’ Compensation case usually
means either settlement by way of a Workers’
Compensation Section 32 Settlement or Walk in
Stipulation Calendar action, (WISC). This
means, to the everyday worker, after all the
dust settles and you no longer require
continued immediate care you can consider
settlement options. If the settlement is to be
a full and final resolution of your rights you
would use the Section 32 avenue. In some
instances continued medical care can be
negotiated with some accommodation by way of a
reduction in the indemnity benefit for the
settlement. In some cases, annuities can be
used or grafted to the settlement which can be
adjusted to the indemnity portion of the case.
This requires detailed negotiations and review
of any Medicare conflicts and rights. The time
table for such a resolution as stated by the
agency presently reviewing Medicare’s rights
for CMS approval and Medicare’s protection is
now more than 270 calendar days post
settlement negotiations for old cases and
approximately 90 days or less for recent
settlements. A short partial resolution of
your case can also be accomplished by a WISC
settlement upon agreement of the parties and
formalization by the law judge on your case.
This process usually takes two weeks from date
the agreement is signed to a hearing date and
another two weeks post hearing, for publishing
and payment of the award. Settlements while in
theory can be on any aspect of the Workers’
Compensation case, they are usually not used
until immediate care has ended. As stated
earlier in prior blog postings, this blog is
to be considered for educational and
informative purposes only. See my disclaimer
throughout these blogs for proper use of an
attorney for your personal case
Long Term Disability
Very often employers provide or individual
workers obtain additional insurance policies
known as Long Term Disability., aka LTD. These
types of insurance plans provide indemnity
benfits to those individuals who are disabled
under the terms of the LTD policy. Most of
these plans require those persons entitled to
benfits to also apply for Federal Social
Security Benefits since the provider of the
benefits would then be permitted (in most
plans) to limit or reduce it's obligation by
the amount of the Federal Social Security
Benefit as well as be reimbursed by the
beneficiary for retroactive Social Security
Benefits. It is therefore important to know
the requirements of your LTD policy as well as
whether there is a set off for Workers'
Compensation Benefits. Most LTD policies are
not used to reduce their payouts by the amount
of any Workers' Compensation benefit but, this
does not meanthey can not be written to
provide such a credit to the benfit provider.
Most LDT policies begin after the expiration
of six months of being totally disabled. You
should also be aware that each LTD plan has
definitional explanations of "total
disability" both as to degree of disability
and duration. It is usual for LTD policies to
define compensability as being totally
disabled for your past job as described in the
policy for a period of time but, a new
definition may occur in most plans after a two
year benefit year passes. It is therefore
sigificant that not only do you read and
understand the terms of your policy but that
you review same with a professional so you
understand your benefits. As discussed
throughout this blog, no attorney clent
relationship exists and the information
contained throughout this blog is for
informative purposes or educational only. A
proper retainer and face to face discussion is
necessary to protect your rights since
specific policies and facts as well as
locations may effect the rights contained in
such arrangements.
Self protection for injured workers
As some of you are now aware, the
sensitivities and interpretation of benefits
for injured workers has become more stringent.
Any person injured on the job and who is not
totally disabled has an obligation to search
for work consitent with their disabilities and
skill level. What this means is that since the
"Axel case", the burden has been placed on
workers to demonstrate they have made
sufficient attempts to look for work
consistent with their deminished abilities.
Failure to make such a "work search" has been
found to be detrimental to receiving contiued
indemnity benefits and in some cases even
prevent the continued receipt of medical
bnefits.
It is therefore incumbant upon the injured
worker to be able to document this "work
search" with written copies of applications,
written rejections and details of the kinds of
work with the specifics of the search. A mere
review of the classified or computer searches
is not necessarily convincing. Registrating
with the local " One Stop" division of the
Unemployment Office near you is a start.
Diligent follow up with same and actual filing
for work with applications and records are
being requested by most compensation law
judges.
Do not be complacent or acquiencent. If you
are questioned in court you are required to
present evidence of such work searches. Oral
statements without physical evidence is not
effective evidence. A word to the wise,
protect your benfits. Keep written logs of
your "work searches" and be prepared for
investigations by the insurance companies. Do
not sign statements without discussing your
rights with an attorney. Be honest but be
aware. The free ride has ended. The insurance
industry has adopted the Regan credo, " Trust
but Verify" which has become Prove or Be
Disbelieved.
As always, note our legal disclaimer, this
blog is not legal advise but merely
informative and for educational benfits. Legal
rights are best protected by retention and
following the advise of your legal cousel.
East End Law
When last we blogged , Eliot Levine and
Associates was looking to open an East End
Workers' Compensation and Social Security
Disability intake center. After much
discussion with medical professions in the
east end and the slowing down of those making
the trip east; we have decided to try other
venues for client retention. We have viewed
Dan's Papers , the North and South Ferry's
from Shelter Island and are presently
exploring additional options. We are still
interested in providing legal services to
injured workers throughout Suffolk County but,
have begun to focus on using our present
facility , 1455 veterans' Highway, Hauppauge,
New York 11749 as a jumping off point.
As an update from information recently gleened
from continuing legal education courses : all
users of the new communications technology
should be wary and be cognizant that your
e-mail, social media and cellular
communications are not necessarily private and
may be subject to subpeona or discovery. What
this means in simple terms is that social
blogging, transmitting pictures and the like
to friends and the general world can and is
being reviewed by others from defense counsel
to a whole range of individuals and companies.
The attorney client relationship no longer
necessarily protects information transmitted
when the instruments of transmission are not
private themselves, , i.e., business servers,
family joint passworded accounts, etc. A word
to the wise, if there is something you
transmit that you might not want revealed to
unintended recients do not transmit it. Just
for the moment, consider recent pictures of
the royal couples vacation. Privacy is
elusive.
As always , this blog is informational and not
legal advise. A formal face to face retainer
and personal discussion relating to your
individual problem within the fields usually
handled by such legal counsel is always best
and is always subject to the locale, time and
facts presented.
What's new at Eliot Levine and Associates?
Eliot Levine and Associates is exploring new
options on the North Fork of Long Island. We
are especially interested in representing
workers who live or work in the Riverhead,
Greenport, Southold and Mattituck areas. Such
workers may be shopkeepers, sales or
restaurant personnel or any employee who has
or is working in the nearby marinas, farms,
wineries, golf courses and construction sites.
We are pursing a new campaign to assist
claimants who have sort care from two East End
Hospitals; Peconic Bay Hospital and Eastern
Long Island Hospital. We are considering
setting up a satellite intake office in or
about Greenport to help service such sites. We
will see how this develops?
Our Primary emphasis is Handling WCL Cases in
Nassau and Suffolk Counties, for Injured Long
Island Workers.
Eliot Levine and Associates is a law firm that
handles Workers’ Compensation cases on Long
Island. We prefer to attend hearings on cases
in Suffolk County and Eastern Long Island, We
accept clients who live in the surrounding
areas of Hauppauge, Smithtown, Commack, Kings
Park, Huntington, Huntington Station,
Brentwood, Islip, C.I. , Central Islip,
Patchogue, Port Jefferson Station, Shirley,
Ridge, and Riverhead to name a few. We readily
represent workers, before the Workers’
Compensation Board at all WCB hearing points
on Long Island. This has taken us to Nassau,
Suffolk and Queens Counties. Over the years;
the WCB has maintained various hearing points
in Hempstead, Bay Shore, Hauppauge, Medford,
Patchogue and Riverhead. Such hearing points
are subject to change and we intend to
continue covering all such hearing points as
they present themselves. Whether you live in
one of the above locations or not; we will
represent you on any New York State Workers’
Compensation case should you retain our firm.
In special situations, we also represent
uninsured employers before the WCB.
What is the Appeals process in NYS Workers'
Comp?
Once a case has been formally presented to the
Workers' Compensation Board, the losing party
may appeal, ( i.e.,request review by a Panel
of the WCB.) In other words, the case must be
filed with the WCB which is an administrative
court. After the case has been presented,
usually to a WCB hearing officer, a decision
is rendered. This traditionally takes 30 to 60
days for said decision to be rendered and
published. At that point, an appeal can be
processed to a panel of the WCB. Following the
decision of a WCB Panel of Commissioners; an
aggrieved party may, depending on detailed
procedural rights and requirements, further
appeal to the same panel by requesting
Reconsideration or in some cases request Full
Board Review of the panels decision.
There are four WCB Panels composed of three
commissioners who ride circuit in the four
districts of the State. The Full Board is
composed of all 12 WCB Commissioners plus the
Chairman of the WCB. Their decision exhausts
the administrative route. Further appeals can
then be processed civilly to the New York
State Supreme Court, Appellate Division, Third
Department who presides in Albany. The end of
the line would be an Appeal to the highest
court, The New York State Court of Appeals.
The time period from inception of the case to
publishing decisions by the Court of Appeals
can take many years. It further appears
theoretically, Federal Questions could be
pursued through the Federal Courts. This
writer knows of no Workers' Compensation case
that has been further pursed Federally.
Most cases never go past the original trier of
fact or one level higher to a WCB Panel
reviewing the case. Of the cases appealed to
this level; there recently has been an
increasing backlog of cases pending and this
has caused delays in hearing process and the
issuing of formal panel decisions. The present
time associated with a decision, post appeal
to a WCB Panel, has been approaching
approximately one year from the time the
appeal is filed. It appears the WCB is working
on shortening this time period.
Practical application of Zamora decision
The Zamora decision by the Court of Appeals
has left most of the bar questioning how these
cases would play out in practice? In other
words, what would the Compensation Board do
now that there is no requirement that lost
time, post classification, be held to have
been caused by the previously classified
condition? One WCB panel has found that such
loss of work post classification is caused by
the disability subject to rebuttal. Hence this
would leave some to believe, although not
required as a presumption, each panel can and
some have maintained such a presumption should
be followed. The hope is that although not
required, the rest of the wcb will follow
suit.
Does "Zamora" effect Permanent Partial Cases
The long awaited New York State Court of
Appeals decision in the "Zamora" case has been
issued and the Court of Appeals' decision
supported by a 4 to 3 majority opinion holds
that the Workers Compensation Board "may but
is not required to presume" that a claimants'
reason for not working post a formal
determination of permanency, known as a
finding of "permanent partial disability" (
PPD), is caused by said causally related
condition. This now permits challenge as to
why individual claimants are not working. Case
law permits presentation of evidence on this
issue. All claimants should consider
verification of their non working or limited
working status and confirm causally related (
c/r ) medical bases and proof of valid work
searches consistent with said workers'
compensation disabilities.
Are there any reimbursements in Compensation?
Reimbursement for causally related
prescription costs and mileage are available
subject to limitations found in the WCL, WCB
rules and case law. At the time of this
writing, mileage reimbursements are payable at
55.5 cents a mile. Mileage reimbursement rates
have changed over time and are controlled by
the date of the service as documented in the
rules and regulations of the WCL. You are
permitted to receive such reimbursements for
traveling to and from those health providers
handling your case as well as for
transportation costs associated with
examinations conducted and set up by insurance
companies monitoring your case. Transportation
costs to and from the court or your attorney
are not reimbursable.
Covered medical prescription costs may be
reimbursable if you comply with the procedures
set out in the act but primarily must be
documented as "medically necessary". Such
products and devices must be requested by your
health provider and are subject to challenge
if not medically necessary. Routine procedures
are detailed in the Medical Treatment
Guidelines, WCL and WCB rules and regulations
as well as procedures for obtaining such
services but, may be reimbursable if approved
by the insurance provider in advance or after
board direction.
Health provider are not permitted to charge
and receive payments for causally related
medical services from workers' compensation
claimants. If any such payment is made, the
payment is not reimbursable. If such a payment
is made for a compensable claim, it is illegal
and not enforceable.
If your employer has made advance payments for
causally related care, reimbursements can be
directed by the WCB. In addition, various
payments made under contract or state law in
certain circumstances and subject to contract
documents may also be reimbursable to the
entity making the payment. If a non-employer
and non co-employee is negligent and the cause
of the injury; then they could be found to be
ultimately liable for all compensation costs
in the case subject to the amounts contained
in the negligent or malpractice action. This
is known as a third party case. As such, the
negligent party and its insurance provider can
be compelled to reimburse the workers'
compensation provider who has already paid or
create a credit to the benefit of the
compensation provider to future obligations
equal to the amounts contained in the third
party case subject to case law regarding
apportionment issues. Detailed discussion on
these issues are contained in the "Kelly" and
"Burns" cases and their progeny. ( See
standard disclaimer as noted below.)
How do I get my injuries treated ?
Under the present Rules and Regulations as
promulgated by the WCB as exemplified by the
latest Medical Treatment Guidelines ( MTG )
effective December 1, 2010 injuries effecting
arms, knees backs and necks are described in a
detailed 200 page document available to all
individuals participating in the workers
compensation system . This document tries to
provide and permit standard medical practices
for many types of medical conditions. When
treatment or conditions are not found or fully
handled in the MTG, the health provider may
file a variance to the MTG and then procedural
requirements exist to eventually resolve any
dispute. The question arises as to how these
variances should be evaluated. The present
system permits either medical arbitration or
WCL judges review. When the question goes to a
law judge, the difficulty develops as to what
is the medical basis that the judge can use to
review and decide such issues. On a simplified
approach the judges can rule based upon
whether the health provider has met their
burden of proof. When this means is there any
evidence submitted then the judge has no
problem making a decision. When the issue is
comparing medical opinion on reasons for one
type of medical form of treatment over
another; a strong complaint can be made that
the judge is not legally competent to give or
evaluate such medical opinion. They should be
able to hear the reasons presented but do not
have the medical expertise to weigh one
opinion over another. If the procedure is not
prohibited by the guidelines and a health
provider can explain why such a procedure is
appropriate consistent with present medical
custom and usage then only an impartial
medical expert should be used to resolve the
dispute not a law judge. This is the very nub
of the problem with the medical guidelines as
they presently exist., The issue gets murkier
when only one side provides a medical opinion
from a licensed medical provider. We'll have
to see how this develops as more cases are
presented and litigated.
Why does it take so long to get a hearing?
The Compensation Law, according to Legislative
History, was designed to provide injured
workers with relatively quick wage replacement
payments and treatment for causally related
injuries in exchange for giving up claims of
negligence against the employer or coworker.
It was expected that this would eliminate
delays due to extensive litigation. Somewhere
along the line of cases and applications of
the law, contested cases became the norm on
the very issues of compensabilty and medical
care. This has been made more devastating by
the Workers' Compensation Board's use of the
Medical Treatment Guidelines effective
December 1, 2010.
Recent statistic show more than 250,000
variance applications have been filed with the
WCB, contesting the restrictions and
interpretations of the Medical Treatment
Guidelines. This contest has back logged the
hearing process and presently clogs the
system. Only so many cases can be heard and
processed by the WCB at a given time. The
State Legislature, as stated earlier in this
blog, has been grappling with this problem and
beginning last summer, has indicated a bill
would reach the Governor's desk soon. At this
time, only the State Assembly has approved
legislation limiting the retro-activity of the
Medical Treatment Guidelines referenced above.
We await further governmental action on this
issue.
Who has jurisdiction over a compensation case?
In New York State , the WCL is the statute
that gives exclusive jurisdiction over all
workers' compensation cases to the Workers'
Compensation Board. No civil court has the
legal right ( jurisdiction) to determines the
rights and responsibilities of the parties
under or out of the the work place setting. In
fact, case law requires such other legal
bodies and courts to defer to the
interpretations of the WCB unless a specific
issue or claim is appealed to the Appellate
Division of the New York Supreme Court , Third
Department. These other bodies lack authority
over these matters and any action to bring
review before them are subject to dismissal
for lack of subject matter jurisdiction. This
is known as exclusivity of jurisdiction. In
its' simplest form, parties to the workers'
compensation case are the claimant, ( injured
worker) and usually the employer who are
permitted to obtain legal representatives to
appear and represent their issues before the
WCB. Additional parties may also be added, as
required, due to complexity of issues
presented.
What is an Occupational disease?
Workers' Compensation protects workers who
develop medial or psychological difficulties
or ailments from long time exposures derived
from the workplace. Such conditions may
develop into occupational diseases when they
grow out of or from the work environment and
usually occur over extended periods of time.
This does not mean that just because you
discover that you have a medical problem while
you were at work that it is compensable. An
occupational disease must be a condition that
develops from the exposure at work and be
normally associated with the specific type of
job activity that you perform regularly over
time, "nature of the work" is a term normally
associated with such claims. One time
exposures are normally considered accidents.
Repetitive exposures create a basis for claims
of occupational diseases.
Some occupational diseases are lung ailments
derived from slow acting dust diseases, carpal
tunnel conditions associated with typing, eye
or neck problems caused by constant use of
computer screens, knee injuries for carpet
installer using kick devices. In short; to
have a proper claim, the condition must be
developed from repetitive activity, not a one
time episode. If you notice a one time episode
it is more readily established as being caused
by the one time event at a specific time and
place, hence an injury. Occupational diseases
are more indefinite as to a specific time of
the occurrence or time constraints but ,
filing for and establishing successful claims
are still controlled by special time
limitations as found in the WCL. Ultimately,
regardless of the condition, evidence is still
required to prove causal relation. Such
exposure must be supported by medical / expert
opinion to support the claim. Not all doctors
readily associate the presenting symptom with
a longitudinal exposure. Everyone can
immediately understand that a back, leg or arm
injury can occur from a slip and fall. It
becomes more difficult to understand and
appreciate the time line associated with
underlining occupational exposures.
For these types of claims as in all Workers'
Compensation claims, it is best to consult a
legal representative for detailed advise.
Hence as stated throughout these discussions,
no attorney client relationship is established
by these blogs and all such discussion is
limited by my Disclaimer found throughout
these articles.
Do I need a
Lawyer?
There is no reguirement under the WCL for you
to be represented by a lawyer. You can
represent yourself. Therefore, technically,
you do not need a legal representative. The
reality of the process illustrates that the
insurance companies are either represented by
lawyers or company hearing representatives who
are trained to protect the rights and funds
of the insurance company. The WCB is the trier
of fact and interpreter of the law. When you
are not represented, this becomes a one sided
process. Even though the compensation law was
set up for the judges to review facts
presented and if possible give some balance to
the case before them; time constraints and
other realities of the hearing process along
with the ever escalating rules and regulations
existent in the Workers' Compensation process
prevent or retard unrepresented claimants from
getting an equal chance. Some statistics have
been presented that conclude that represented
claimants obtain higher benefits then those
individuals left without proper
representation.
The WCL has become a highly technical process
and those individuals not fully informed and
knowledgeable of its twists and turns (sinews)
can suffer delays if not worse.
Sec 24 of the WCL, details how and under what
circumstances your representative can be paid.
No payment is ever permitted directly from the
claimant to the representative. Fees are
earned based upon results and subject to an
evaluation of services rendered by the trier
of fact
( usually a Judge) on a case by case basis.
Under these circumstances, no payment for
attorneys services can be made without WCB
approval. Attorneys fees for representation
comes out of and are deducted from successful
awards of indemnity benefits. Claimants are
equally not responsible for payment to health
providers for causally related health related
services. These services are also regulated by
the WCL and the Medical Treatment Guidelines
and their interpretations by the WCB and Court
System.
What
is a sec 32 settlement?
Under the Workers' Compensation Law (WCL)
there is a precise section of the law that
permits final resolution of your claim for
indemnity and medical benefits.This section is
known as Section 32 of the WCL. It is a formal
agreement, presented to the WCB where the
parties resolve all issues and is not subject
to an appeal by any side. ( ie., any party).
In some but not all cases, all rights
including medical responsibilities for future
causally related problems / care are
eliminated. Since the WCL was created as the
exclusive forum to resolve and bring claims
for on the job injuries or occupational
diseases caused by the work environment; the
WCL does not permit unintended waivers of the
protections under the WCL. Since a section 32
settlement alters the parties rights; the WCB
does not permit these rights to be waived or
modified lightly.
Therefore, a section 32 claim is presented in
writing and attested to by the parties before
the WCB in a formal hearing setting. The
Workers Compensation Board requires the
claimant to be questioned about the content of
their settlement and their understanding of
same. The trier of fact , usually a law judge,
has to determine whether the claimant and all
parties understand the full implications of
such an agreement. The law judges are given
wide latitude in evaluating whether the
claimants are fully aware ( cognizant) of the
significance of the settlement agreement. The
formal determination of the WCB requires a 10
day cooling off period after the presentation
of the settlement to the trier of fact
( usually judge) before the agreement can be
published and becomes final and binding.
At the present time, when you want to settle
your case by way of sec 32, future medical
costs based upon past treatment and
prescription usage can be subject to review by
the Federal Government for those individuals
on Medicare or who are Medicare eligible
within 30 months of the settlement. This
review is known as obtaining CMS approval. Due
to the
back log of cases, such CMS review and
approval has been taking more than 180
calendar days after formal submission for
approval has been made to the agency
authorized to make such approvals.
As stated throughout this blog all cases are
different and require detailed discussion with
your legal representative and therefore this
blog should be read in such context and the
Disclaimer found throughout. These discussions
are just that , discussion for educational
purposes on general areas and are not case
specific.
How
long can I collect compensation?
Generally speaking, once your compensation
case has been established, you can receive
indemnity benefits for 18 years and reopen
your case for medicals benefits forever. These
long term issues are subject to specific
conditions and terms contained in the WCL.
Some of these rights are dependent upon
findings of permanency. If you have a
permanent partial or permanent total
condition, your indemnity benefits can
continue subject to specific limitations found
in the WCL. If you return to work, certain
kinds of cases permit the WCB to grant a
specified monetary award. These are usually
known as schedule loss of use awards
or awards for periods of time where wage loss
occurs. In other cases, you may even be
classified as having a causally related
permanent condition which may entitle you to
continuing indemnity and medical benefits. If
your case has not been established or properly
filed, special time periods control.
Generally, a case must be filed within two
years from the date of the incident and notice
of the incident must be given to your employer
with 30 days from the incident. All cases
require a causal connection exist before
benefits of any type can be established.
Evidence of such a causally connection is
contained in the reports and opinions of a
medical provider. The opinions of your health
provider are contrasted with the opinions of
health related witness for your employers'
benefit provider.
As continuously stated, please note my
disclaimer found throughout these blogs. This
blog is merely provided for educational and
general discussion purposes. It is not
specific legal advise on any specific case.
For any formal advise, a retainer agreement
and face to face representation should occur.
All situations have nuances that are fact and
law dependent and can only be truly reviewed
in such a relationship.
How
much money do I get from my Compensation case?
Your indemnity payment for the condition
causing your compensation injury or disease is
dependent upon your earnings from the one year
immediately preceding the date of your injury
or occupational disease. This is known as your
average working wage ( AWW) . Once this is
determined the maximum indemnity weekly
benefit under Workers' Compensation in New
York can be no more that 2/3 of that AWW.
These maximum indemnity payments are limited
to weekly maximums dependent upon the year of
the injury. These rates have changed over the
years and are specified in the statute. The
maximum weekly benefit rate a disabled worker
can receive presumes the worker is out of work
and totally disabled. Once you go back to work
or your causally related condition improves,
your rate of indemnity per week can be
reduced. This is usually resolved after
evidence is presented and a formal decision is
rendered by the Workers' Compensation Board.,
( WCB). If you are receiving benefits before
or without a formal award, such payments are
subject to the New York State Workers'
Compensation Law and are somewhat voluntary.
You are best protected by a formal decision of
the WCB which relies upon medical evidence
related to the case.
Under various situations, dependent upon the
date of your compensible disability, your
right to continuing benefits remains. Your
right to medical care subject to the WCL
continues but is limited by the Medical
Treatment Guideline and their interpretations.
Your right to continuing indemnity payments
continues subject to the type of case,
condition and findings on the case. In some
instances, payments can continue forever but
are limited by the requirements spelled out in
the WCL and court cases interpreting the WCL.
As stated throughout this blog, each case is
different and all specific questions regarding
your case should be discussed with your legal
representative. ( see disclaimer)
Is my
comp taxable?
Generally speaking, New York Sate Workers'
Compensation Benefits are not taxable. There
are situations where because you receive
combinations of benefits, such as Social
Security Benefits and New York State Workers'
Compensation Benefits, that may effectively
create a taxable event. If your other form of
benefit is reduced by the compensation payment
this can in some instances create a tax on the
amount of the credited reduction. It is best
to consult your tax adviser when considering
tax questions.
Who
pays for my lawyer?
Under the New York State Workers' Compensation
Law, (WCL), the injured worker is not directly
responsible for the payment of attorneys fees.
The law prohibits an attorney from collecting
any money from the claimant. All fees for
legal services are controlled by the WCL and
must be approved by the Workers' Compensation
Board ( WCB ) . When approved, such fees are
paid by the insurance provider aka insurance
company and the amount of the fee is deducted
from the award issued by the Workers'
Compensation Board. The workers' payment for
lost wages are known as indemnity payments and
are reduced by the amount of the approved fee.
Such fees are usually limited. The customary
fee has been limited to between 10 and 20% of
the new money presented in the award notice.
The award notice is the formal
written decision of the WCB publishing the
decision of the trier of fact who is
authorized to render a formal decision on the
case before the WCB. Fees are not approved for
indemnity payments voluntarily made by the
insurance provider. The fees are calculated on
new money
approved in the board decision. In some
situations, an attorneys' fee can be deducted
from reimbursements represented in an award of
moneys going back to the employer for advance
payments of compensation. ( see formal
disclaimer in prior blogs).
Who
pays for treatment in Workers' Compensation
Cases?
Under the New York Workers' Compensation
system , injured employees causally related
medical care is controlled by various sections
of the New York Workers' Compensation Law , (
WCL). Generally speaking, such care is not the
responsibility of the injured worker but
rather the responsibility of the employers'
workers' compensation insurance provider. If
the employer fails to obtain or maintain such
coverage, the WCL created a fund to cover such
treatment responsibilities as well as
indemnity issues. This Fund is known as the
Uninsured Employers Fund.
There are no deductibles nor co-payments by
workers nor anyone else. If the procedure or
treatment has been properly provided or
properly requested and complies with the WCL
the injured worker is exempt from any
financial obligation in respect to such care.
If the provision of such causally related
healthcare fails to meet the standards and
procedures
for obtaining payment to the health care
provider; such care is not the responsibility
of the injured worker. The claimant /worker is
exempt from any financial responsibly for
same. It is illegal for a provider of such
causally related care to request or compel
payment from the patient.
The real issue has become more vexing since
the creation of the newest Medical Treatment
Guidelines effective 12/1/2010. These
regulation and practices have been promulgated
with the stated intent to quicken the process
for obtaining medical care under the WCL. At
the present time, delays seem to have been
created and questions remain regarding these
Guidelines and their interpretation as well as
authority. The New York State Legislature is
presently, reviewing laws on these issues.
We'll see what develops. Further commentary
will follow in later blogs.
As always, note my disclaimer, these
discussions are merely just that, a discussion
and not formal legal advise which should be
conducted in a face to face retainer
relationship with an attorney or legal
representative and would be fact and law
sensitive to each separate case presented.
What
is a Wisc?
A WISC ( Walk in stipulation calendar) is a
special agreement whereby the parties to a
compensation case can resolve issues on any
part of a New York State Workers' Compensation
case. They require a formal written
stipulation where the parties to the claim
formally agree to a result on any part of or
on the full case. The matters contained in
the agreement becomes effective and formal
upon approval by the Workers' Compensation
Board, (WCB) . No party can compel the other
to accept such an agreement unilaterally but,
once obtained, this device is used to expedite
a formal decision of the WCB. The WISC devise
was created to permit fast resolutions of
limited issues not requiring full
development of a record and is limited to the
four corners of the written agreement. Because
it is a "mutual understanding" the WCB tries
to permit quick calendar action for these
agreements. The contents of such an agreement
usually covers treatment, loss of time,
permanency, disability, salary disputes
monetary awards or any item normally contained
in a case without the need for detailed
discussion, presentation of evidence or
argument. It is just that, a stipulation
containing those areas where the parties can
agree. Once published
by the WCB it becomes legally binding on the
parties to the agreement.
( As stated throughout these blog discussions;
they are provided for educative and
informative purposes and are not intended to
be a substitute for formal legal advise on a
specific issue or state of facts and should be
reviewed in a formal legal relationship with
an attorney or legal representative. The
discussions as presented do not create a
formal attorney client relationship. All
situations vary and are usually fact and law
dependent which also may vary or be effected
by the law in existence at the time of the
occurrence.)
What
is a Comp Hearing?
A Comp ( Workers' Compensation) Hearing is a
statutory right whereby a claim for benefits
from an on the job injury or occupational
disability is presented. The nature of the "
Hearing" has in recent times been under
attack. Traditionally, a hearing has been the
presentation "in person" before a trier of
fact, usually a law judge but not always with
a presentation of the claim through
documentation and/or oral evidence. All
parties to the claim have the right to
representation by someone who will promote
their interpretation of the facts and issues.
The workers' compensation board (WCB) has
issued various policy statements as to what
constitutes the elements necessary before a
formal hearing can be
scheduled. In short form, the preliminary
elements required are the filing of a formal
written claim known as a c-3. The filing of
medical reports most commonly known as a c-4
with an opinion from the health provider
alleging that the condition presented was
caused by a work situation and the filing by
the employer usually by submitting a form
known as a c-2 containing the employers'
information, if any, about the claim . This
should be followed by a formal employer
position document or response in the form of a
c-6, c-7 or c-9. Not all claims require
continued involvement by "a trier of fact"
unless a dispute over the compensability of
the claim or further treatment is questioned.
Employers and their insurance carriers may
make voluntary payments regardless but, the
claimants rights are not formally protected by
the full scope of the Workers' Compensation
Law (WCL) until formally established by a
written finding known as a decision of the WCB.
In cases where continuing claims are
presented; the case is set for presentation of
the claim subject to the Workers' Compensation
Law (WCL) as well as the rules and regulations
of the WCB.
As stated in this blog previously, a full and
complete discussion regarding a specific case
or your rights concerning a specific fact
pattern should be conducted in person with a
representative so that it can be fully
evaluated. This blogg is merely presented as
general information and can not be considered
a formal legal opinion on any specific case.
Can I
settle my Compensation Case?
Generally yes but; the Workers' Compensation
Law prohibits any agreement to release a
claimant's rights under the New York State
Workers' Compensation Law ( WCL) unless
approved by court order, (i.e., a decision of
the Workers' Compensation Board.) Therefore,
any
agreement concerning the nature and scope as
well as benefits available or applicable
emanating from a job related injury,
occupational disease etc, written or
otherwise, between an employer or their
insurance company and an individual worker
whether disabled or not, without formal
acceptance through a written decision of the
Workers' Compensation Board is ineffective,
illegal and can not be enforced. The
Compensation Law permits settlements known as
section 32 Agreements and Wisc settlements.
These are formal agreements presented to the
Workers' Compensation Board (WCB) which when
approved, can
become binding on all parties subject to the
specific limitations and rules found in the
law. Agreements entered into between
individuals and their companies outside of the
compensation law may be binding in other
forums for example under the terms of a union
negotiated benefit or a third party action but
will not limit the workers' rights and
enforcement under the authority of the WCL
until and unless it is approved by the WCB.
What
is Workers' Compensation?
Workers' Compensation in New York State is
mandatory insurance coverage for most workers.
With few exceptions, any worker who is
injured, disabled or effected by their work
environment is protected by this coverage.
Such protection involves medical treatment and
indemnity payments for lost wages. In some
cases, in addition to lost time from work,
indemnity payments may also apply for
permanent limitations known as schedule loss
of use with court directed awards for same. In
other cases, permanency my entitle such
workers to continuing medical payments and
treatment with further awards for continuing
loss of wages or reduced earnings subject to
law changes and applications dependent upon
the date of the accident. Rates for losses and
limitations are subject to case law, statutory
law and their interpretations. It is usually
best to consult a lawyer about your specific
issue for individual applications that effect
your injury or problem.
First
Blog for Injured Workers on Long Island
This will be a forum for discussion of
Workers' Compensation Issues. We all await
oral argument before the New York State Court
of Appeals on pressing issues. We are also
looking forward to answers to questions that
have been caused by the recently issued
December 1, 2010 Medical Treatment Guidelines.
Possibly, the New York State Legislature
will resolve some of these questions. We
expect injured workers with permanent
disabilities to have their treament rights
protected and will see what the court does on
this issue. This will undoubtably effect long
island workers, suffolk county residents and
all disabled workers. Doctors and treatment by
various practitioners including chiropractors,
physical therapists and orthopedics have been
limited by the present position of the
Workers' Compensation Board and its many
recent decisons. Hopefully there will be an
end to speculation. We would all like to know
, that condions and agreements entered into
before the recent changes to the Medical
Treatment Guideline are not eliminated or
changed by permitting a retroactive
application of the new Guidelines.
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Eliot
S.
Levine
& Associates
Attorneys at Law
Litigation
attorney handling New York State Workers’ Compensation
and Social Security Disability cases since 1978
"WE REPRESENT WORKERS"
workers’ compensation
Accidents, injuries, ZADROGA BILL 9/11, retirement
social security disability
ssi, ssd
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Eliot
S.
Levine
& Associates
Attorneys at Law
1455 Veterans Highway
Hauppauge, New York 11749
Telephone: (631) 234-5484
Fax: (631) 234-5561
Email:
e.levine@redsail2.com
www.Redsail2.com
www.LongIslandWorkers.com
www.LongIslandInjuredWorkers.com
Long Island | Suffolk County |
Hauppauge | Smithtown | Commack | Kings Park |
Huntington | Huntington Station | Brentwood | Islip |
CI | Central Islip | Patchogue | Port Jefferson
Station | Shirley | Ridge | Riverhead |
Q: Am I
entitled to the Zadroga 9/11 Bill??
A: If you had WTC Exposure
with Occupational Injuries or Occupational Diseases from on the job
exposure.
CLICK HERE FOR MORE
INFOMATION
Q: I
was hurt at work…. What do I do??
A: File a Claim …C-3 form, with the Workers’ Compensation Board.
Q: I was in the
Hospital …. What do I do??
A: File a C-4 report with the Workers’ Compensation Board.
Q: I went to the
Doctor …. Do I have to pay the doctor?
A: NO, make sure you give a complete work history of the accident and they
file a C-4 report.
Q: I’m not getting
paid any $ from my job…. How do I get $ ??
A: File a Claim…C-3 form, with the Workers’ Compensation Board.
Q: I already applied
for Workers’ Compensation:
Q: I have a hearing date…. What do I do? ….
A: Get copies of all doctors’ C-4 reports and bring them to the hearing.
Q: Do I need an
attorney or can I do it myself ??
A: You can appear without an attorney, BUT it is best if you are
represented since the employer will have their insurance companies attorney
at the hearing.
Q: I had a hearing
and I did NOT get any $. Why not ??
A: There could be many reasons, such as:
1. your employer is fighting the case or
2. you do not have proper medical reports.
Q: I lost my job
(because I was out of work due to my injury at work) Can they do this ?
A: YES, New York does NOT protect your job if you are out of work because
of an injury. You may be protected if you are part of a union negotiated
contract.
Q: Who do I have to
tell I was injured at work ??
A: Your Doctors, Your Supervisor at work, the Workers’ Compensation Board.
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