NY & Long island Workers Comp Attorneys since 1978 Workers’ Compensation, Accidents, Injuries, Retirement, Social Security Disability, ssi, ssd

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Workers’ Compensation FAQ's
Recent changes to Workers' Compensation Practice and court locales.

It's been some time since I was able to write to this blog. My daughter got married, my wife and I took a vacation. I hired two different attorneys and now continue serving my clients with three attorneys on staff and a few associates at various hearing locations; we're now back on the beam.

As previously stated we continue to provide legal services in the fields of New York State Workers' Compensation, Federal Social Security Disability and Negligence. Veterans' disability claims are presently on hold as you may have noticed, there appears to be an extensive back up in that system and efficiency seems delayed.

The Workers' Compensation Board has gone through some recent geographical changes. The Riverhead hearing point has been closed. Cases previously assigned to Riverhead are now being heard in Hauppauge. Claimants are given the right once they evidence a hardship to attend their hearing via phone. Wisc Settlements and Section 32 Agreements once written and filed can also be approved by a law judge with the claimant attending by phone. This practice is subject to a case by case and judge by judge decision. It further appears that claimants who live along the western border of Suffolk County will be having their hearings held in the WCB Hearing Point located in Hempstead. This is also subject to telephone appearances upon judicial prior approval. It is always best to attend your hearing / case in person.

The medical treatment guidelines professed by others to exist as a means to expedite treatment has proven a cog in the system which required correction permitting some chronic care with stated limits. It is always best to have your doctors thoroughly review the Medical Treatment Guidelines posted by the Workers' Compensation Board and to follow them explicitly. The forms C4 Auth should be used as detailed by the treatment guidelines where applicable. If additional treatment beyond that which is stated in the "Guidelines" is required; your doctors will have to file MG 2 forms with explanations why the treatment desired or requested is medically necessary and they must document in detail why the present form of treatment is showing improvements but further care is necessary. Most of the health providers seem to be able to comply with the Guidelines or document why additional treatment should be approved. Regrettably, some insurance carriers have elected to refrain from being required to give prior approval to treatments listed under the guidelines.This has proved to be a vexing condition for the health providers who may not provide treatment unless and until it is sanctioned by the guidelines or a variance has been approved by a law judge. All of these obstacles continue to thwart the professed intention of the act which has always been to promote quick and early treatment to injured workers allowing them to successfully return to their respective places of employment. We hope the WCB comes to regain this philosophy.



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. Read More...


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. Read More...


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. Read More...



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. Read More...


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.
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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. Read More...



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. Read More...


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. Read More...



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. Read More...


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 benefits to those individuals who are disabled under the terms of the LTD policy. Most of these plans require those persons entitled to benefits 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 mean they can not be written to provide such a credit to the benefit 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 significant 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 client 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. Read More...


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 consistent 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 diminished abilities. Failure to make such a "work search" has been found to be detrimental to receiving continued indemnity benefits and in some cases even prevent the continued receipt of medical benefits.

It is therefore incumbent 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 acquiescent. 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 benefits. 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 benefits. Legal rights are best protected by retention and following the advise of your legal counsel.
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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 subpoena 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 recipients 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.
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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? Read More...



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. Read More...


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. Read More...


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.) Read More...


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. Read More...



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.
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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.
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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. Read More...


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.
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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.
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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.
Eliot S. Levine & Associates Legal Services

WE REPRESENT WORKERS - Workers Compensation and social security disability

Eliot S. Levine & Associates
Attorneys at Law
Litigation attorney handling New York State Workers’ Compensation and Social Security Disability cases since 1978

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Eliot S. Levine & Associates
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Telephone: (631) 234-5484
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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. 
 
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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.

 

 

Eliot Levine and Associates
(800) 619-5454
Fax: (631) 234-5561
www.Redsail2.com

 
     

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Garden City, NY 11530
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Hauppauge, NY 11749
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439 William Floyd Parkway
Shirley, NY 11967
(631) 395-3958

 

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