Understanding Your Claim: Workers’ Comp Terms Explained In Plain Language

Today we continue discussing workers’ compensation injuries and procedures.  While no one plans to get hurt on the job, there are some things you need to know if you find yourself dealing with the workers’ compensation system. If you are unfortunate enough to find yourself injured on the job you may be scheduled for a hearing or more likely receive an administrative decision regarding your claim. Many people who find themselves attending a hearing or in receipt of a decision are often times confused by the terminology. As a practitioner of workers’ compensation I can tell you that there are a lot of terms of art, abbreviations and the like that we use on a regular basis during the course of a claim.

One of the most common abbreviations we use is ANCR or ODNCR. For example, if you have an injury to your back you might receive a decision indicating ANCR back. Without ANCR or ODNCR, you cannot have a successful claim for workers’ compensation benefits. But what does it mean?  ANCR stands for accident, notice and causal relationship. ODNCR stands for occupational disease, notice and causal relationship. Here I will discuss each of the components.

  1. An ACCIDENT or OCCUPATIONAL DISEASE is one arising out of and in the course of the employment. Just because you get injured or sick on the job does not definitively mean you are entitled to file a claim. For example, if an employee gets assaulted on the job by a jealous spouse because of a domestic dispute, the injuries sustained would not be compensable as there is no work connection. If you are injured solely as a result of intoxication from alcohol or drugs while working, you would not be able to obtain workers’ compensation benefits. Similarly in occupational claims not only do you have to show that it occurred in the course of employment but that it must flow naturally from the work involved.
  2. The second component is NOTICE specifically notice to your employer that you were hurt on the job. The law prescribes that notice be given to the employer within 30 days of the accident and should be in writing although oral notice may be accepted. While many jobs have their own internal notice requirements, the law in New York State is 30 days. Notice is different than filing with New York State. The Statute of Limitations to file a claim with the New York State Workers’ Compensation board is 2 years. You may file within the 2 year statute but still lose your claim if you didn’t file proper notice with your employer within 30 days.    
  3. Lastly, there must be CAUSAL RELATIONSHIP, between the job and the injury sustained. Is the injury you are suffering from as a result of the accident which occurred on the job. In order to prove this you must have a medical report from a qualified medical provider. The doctor should be a licensed to practice under the workers’ compensation and familiar with the system which includes the requisites necessary in order to file a proper report. If you are able to confirm these components, your case may be accepted or established. It is imperative that these steps are followed as it is possible that a very serious injury may sustained but never established because it fails to follow what has been directed.

Prior results do not guarantee outcomes.

The State of the Union – – Candy-Coated Visions of US “Exceptionalism”

Unemployed men queued outside a depression soup kitchen opened in Chicago by Al Capone

Today’s post comes from guest author Jay Causey, from Causey Law Firm.

           This short piece has nothing to do with workers’ compensation. It does have much to do with US workers. In the recent State of the Union speech, and its accompanying hoopla, President Obama and the Republican “counterpoint” presenters predictably extolled the underlying greatness of the good ol’ USA, essentially ignoring the primary rot to our nation that has occurred during my adult lifetime.

           Few in our national power structure – – either on the left or right – – want to acknowledge the devastating impact of income and asset inequality on our core social, economic, and political values. Occasional bursts of activity here and there to raise minimum wages to realistic levels chip around the edges of the problem. But until there is the political will to rebuild our decaying infrastructure, rethink our hemorrhaging defense budget, and massively transform our taxation scheme in this country, the future is not a rosy one.

           Some factoids underscoring the problem were recently outlined in Rolling Stone magazine:

  1. The amount of new income generated since 2009 going to the top 1%: 95%

  2. Financial wealth controlled by the bottom 60% of all Americans: 2.3%

  3. Record combined wealth of the top 400 richest Americans: $2 trillion

  4. Real decline in median middle-class incomes since 1999: $5000

  5. Federal minimum wage: $7.25

  6. What the minimum wage would be if it kept pace with worker productivity since 1968: $21.72

  7. Number of US workers earning at or below minimum wage: 3.6 million

  8. Taxpayer subsidies to the fast–food industry to pay benefits to fast-food workers earning poverty wages: $7 Billion

  9. US defense spending in 2012: $682 billion; amount spent by China, our nearest plausible military rival: $166 billion

  10.  Federal deficit in 2013: $680 billion

  11.  Official unemployment rate: 6.7%

  12.  Unemployment rate which includes Americans who have given up looking or only have part-time employment: 13.1%

           That there are at least some stirrings of recognition here and there of the corrosive effect of these conditions on our way of life is a somewhat hopeful sign. However, don’t count on the national media – – owned by six or seven behemoth corporations – – to elevate this conversation above the whispers and murmurs below. This issue usually only gets its attention, as recently occurred, when some clown–like multibillionaire capitalist equates complaints about the ultra-rich to the attacks on Jews in Nazi Germany. And every so often a former corporate “insider” or CEO will blow the whistle on his cronies, such as acknowledging that since 1950 the ratio of CEO to employee pay increased by 1000% and that these execs sit on the governing boards of companies dramatically underperforming against the market while they draw millions for the “value” of their “expertise.”  But, it will take a sea-change in the political representation of the economic underclass – – that is, of about 90 to 95% of the population – – before anything happens.   

           But we’re the greatest, aren’t we?! A Canadian journalist recently authored a book entitled Merger of the Century in which she proffered the merger of Canada with the United States as the solution to both countries’ problems. This thesis prompted another well-known Canadian columnist and author to react and observe some reasons not to take this course:

            “Over the past decade, the US has debased its currency and destabilized the world financial system, thanks to venal and incompetent Wall Street tycoons. Its foreign-policy has lost its way into costly wars that have made the world less safe, not more. American education and health care are both outrageously expensive and deliver relatively poor outcomes while its once–admired justice system has become a conveyor belt into the bloated and corrupt prison system. Absorbing Canada would be great for the US – – it would gain an immense source of natural resources and an infusion of some 34 million educated and law-abiding citizens. But Canada is by every measure a better–governed country than the US. So why would Canadians want to take such a great leap backward?”

           So, will the general public of this country actually find the willpower to insist we do what is needed to make the USA the truly exceptional place it was 50 years ago? Or are we just going to sit around mouthing the words and beating our chests about past glories?

 Photo credit: Unknown or not provided / Foter / Public Domain Mark 1.0

Prior results do not guarantee outcomes.

How Do Social Security Disability And Workers’ Compensation Benefits Work Together?

As a practitioner in the workers’ compensation field for almost 25 years, I have represented thousands of injured workers. A large percentage of those injured workers are also entitled to Social Security Disability (SSD) benefits which are benefits based upon disability and not age. My Partner, Barbara Tilker has practiced in the area of social security disability for over 35 years and she has provided me with important information regarding SSD. But what exactly are these benefits and who is entitled to them? In order to qualify you must have the requisite work credits. The number of work credits you need depends on your age. Generally speaking you need at least five years of work (20 credits). You will often hear people say you need to have worked five of the last ten years. You also must have substantial gainful employment – having minimum earnings of $1070 per month. The maximum SSD rates are based on individual income and FICA tax paid.  They are running around $2500 per person max and $4000+ if there is a dependent family

Filing for SSD can be a lengthy process. Every case is different, and some are processed faster than others. However, we’ve found that it takes the Social Security Administration (SSA) between four (4) to six (6) months to make an initial decision. If that decision is unfavorable (and about 70% of initial decisions are denials), it can take between eight (8) to twelve (12) months to have a hearing before an Administrative Law Judge (ALJ) scheduled. A year to a year-and-a-half wait is not uncommon.

Due to the lengthy process, you should file for SSD as soon as possible. You should file as soon as you know that you will be out of work for at least twelve (12) straight months OR if your condition is expected to result in death. You should talk to y our doctor to see how long he/she expects you to be unable to work. Your doctor’s support is incredibly important to your case so talk to him/her before making the decision to apply.

In order to make sure that you get the maximum amount of benefits you’re entitled to, your application must be filed within 17 full months from the time that you become disabled and unable to work. If you’ve already been out of work for a year or more, consider putting in an application right away to prevent any loss of benefits you would otherwise be entitled to. 

In New York, Social Security disability benefits are offset by workers’ compensation. There is an 80% ceiling on concurrent WC and SSD translates as follows:  A disabled individual (including dependent family benefits) cannot exceed 80% of highest gross income of the last five years worked, together with workers’ compensation benefit. This is computed on a monthly basis. If exceeded, social security is offset. Many of my clients have multiple concurrent medical issues – they may have a back injury as a result a work related accident but they may also have diabetes or a prior leg condition. Social Security takes all of these medical conditions into account to determine whether or not you are entitled to benefits. Your entitlement to SSD is based upon your overall medical condition and not just your workers’ compensation claim. While no one plans on getting injured or disabled, you should plan on knowing what you are entitled to before the unthinkable occurs.

Prior results do not guarantee outcomes.

Workers’ Compensation May Cover Weight Loss Treatment, Surgery

Gastric bypass is one type of weight loss surgery

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

Obesity is a disease that affects Americans in many ways.

Workers’ compensation is affected by obesity as well. A work injury or disease, coupled with chronic obesity, frequently becomes much more difficult to deal with. The usual methods of treatment may not be possible for an injured worker living with chronic obesity. 

Thomas A. Robinson, a noted expert on workers’ compensation, recently posted a great discussion on obesity treatment. The well-written article discusses how various state workers’ compensation systems deal with these problems. The short answer is some states award benefits for treating obesity as part of the work injury, and some don’t. Nebraska and Iowa have cases denying gastric bypass surgery based on factual findings that it was not necessary to treat the work injury, but leaving to door open with more proof of medical necessity. 

Our firm has had at least one case where gastric bypass surgery was paid voluntarily when it was apparent the surgery was necessary to enable proper treatment of a serious work injury. A workers’ compensation trial award was entered in early January awarding gastric bypass surgery as necessary to reduce weight so a back surgery could be performed safely. This award reinforces that with proof of medical necessity to treat a work injury, weight loss treatment and surgery may be covered by workers’ compensation in Nebraska.

Prior results do not guarantee outcomes.

FEMA Extends Deadline For Hurricane Sandy-Related Claims To April 28

I recently had the pleasure of attending the New Hamilton Beach Civic Association, where I was scheduled to discuss Workers’ Compensation benefits, Social Security Disability, and give updates on Superstorm Sandy. While waiting to speak, I was privileged to hear a number of public officials speak who attended this meeting, including Congressman Hakeem Jeffries, State Senator Joe Addabbo, State Assemblyman Phillip Goldfeder and New York City Councilman Eric Ulrich.  

The meeting, run by Civic Association President Roger Gendron, made it extremely clear that those living in the community and serving the community are the best resources when it comes to information regarding the aftermath of the Storm. Everyone involved is to be commended for not only their actions, but the dissemination of valuable information to those still trying to pick up the pieces. While it is clear that much remains to be done, it is also clear that there are many dedicated citizens and officials who want to offer assistance. 

For those still suffering from the after effects of Superstorm Sandy, I will provide a little background information on FEMA’s flood program. Since standard homeowners’ insurance does not cover flooding, in 1968 Congress created the National Flood Insurance Program (NFIP), overseen by the Federal Emergency Management Agency (FEMA), to help homeowners. The NFIP offers flood insurance to homeowners, renters, and business owners if their community participates in the program. Participating communities agree to adopt and enforce ordinances that meet or exceed FEMA requirements to reduce the risk of flooding. Many of you who reside in South Queens were severely affected. If you have sustained damage, you need to file a claim with FEMA, as they have extended their filing deadline again, this time to April 28, 2014. Therefore, make sure you file a proof of loss before that time.     

Many homeowners who filed were not satisfied with their FEMA experience. Part of the problem was the sheer volume of claims. If you do not believe you were paid fairly and timely, or were unreasonably denied, you need to act now by filing a claim against your insurance carrier. There is a one-year statute of limitations to file against the insurance carrier when it denied payment or disbursed a final check.  The time to act is now. 

It is almost a year and a half since this monster storm caused unprecedented destruction and death.  There are residents still displaced and those still waiting for much-needed relief. Contact your public officials and your local boards and associations for assistance. Get proper legal advice. Speak to those who have been through similar disasters. Know what to do in a future emergency. While we all pray that Superstorm Sandy was a once-in-a-lifetime storm, we also need to be ready in case of a repeat scenario. While no amount of preparation can protect us against certain catastrophes, it is a comfort when we know what to do in the face of these obstacles.   

As we enter one of the holiest seasons for both Christians and Jews, I would like to quote Rabbi Mark Geller who said “we note that it is the season of renewal. Like babies, springtime is God’s inescapable message that life should go on.”  

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

Prior results do not guarantee outcomes.

Not Expanding Medicaid: Deadly Consequences

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

Please take a moment to ready this story out of Pennsylvania: Study: Many Will Die if Medicaid is Not Expanded.   As part of the Affordable Care Act (“Obamacare”), an expansion of Medicaid was intended.  Medicaid essentially is the joint federal-state program to provide health insurance to low income individuals and families.   The federal government strongly encouraged this expansion by the states, by offering to pay for that expansion for many years.   Unfortunately, the US Supreme Court–in upholding the constitutionality of the bulk of Obamacare–did strike down this Medicaid expansion.  The Supreme Court decision left it up to the state’s themselves to decide whether to expand Medicaid for their residents or not.

In many Republican-led states, the decision was made to not expand Medicaid.  As seen in this article, Pennsylvania was a state that declined to expand.  Wisconsin, with Republican Governor Scott Walker, also decided not to provide this expanded Medicaid coverage to the the state’s low income individiduals.  (Check out the story here and here.) 

Now comes news that failure to expand Medicaid may actually result in increased deaths among the affected population.  The failure to have this expanded coverage, according to the study examining Pennsylvanis, will result in thousands of deaths due to individuals foregoing necessary medication, medical treatment, and preventative screening. Additionally, the expansion failure will result in “catastrophic medical expenses and tens of thousands of cases of untreated depression, diabetes and missed screening tests.”   This is a truly scary scenario–and an avoidable one.

In Wisconsin, Gov. Walker is suggesting that these individuals can now obtain health insurance throught the federal-run exchanges.  The real issue is whether these low-income individuals can truly afford the premiums and whether they actually qualify for the federal subsidies.  These lower-income individuals were the one supposed to be covered by Medicaid expansion–not by the exchanges.    Based on the Pennsylvania study, if these individuals are ineligible for Medicaid and cannot secure health insurance elsewhere, dire health consequences (or even death) loom as possibilities.

Prior results do not guarantee outcomes.

Testosterone Drug Use: Watch Out for Dangerous Side Effects

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

Beware of testosterone drugs. 

Drugs to raise testosterone levels have very dangerous side effects. The drugs come in the form of prescription drugs, patches, creams, gels, deodorant or spray. These heavily promoted drugs have been linked to increased heart attacks, strokes, pulmonary embolism, blood clots, and death. For instance, men older than 65 taking such drugs are two times more likely to have a heart attack during the first 90 days of use than those who don’t take the drug. That is a sobering, if not outright scary, situation. Men younger than 65 with histories of heart disease are also twice as likely to have heart attacks during the first 90 days of use. 

Human nature and the desire to be healthy, strong and youthful appearing will draw many men to these drugs, particularly with the heavy advertising on TV, radio, online and in traditional print that the public is exposed to currently. The lure of a Fountain of Youth is hard to resist but also very dangerous. 

Sadly, there have been many other instances of new drugs that have been heavily promoted that have had dangerous side effects. The law has provided damages for the now millions of people who have been damaged by various dangerous drugs with serious side effects. I recommend looking into your legal rights if you or a loved one suffered a heart attack, stroke, pulmonary embolism, blood clots or death while taking testosterone replacement drugs or after taking such drugs. Feel free to contact me, and I can arrange for a consultation with lawyers with special knowledge, experience and good ethics to help you or your family member.

Prior results do not guarantee outcomes.

Confidentiality Agreements and Dennis Rodman

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

Many defendants, particularly celebrities, often try to keep settlement agreements private and they seek confidentiality as part of the bargain. Dennis Rodman, former Chicago Bulls basketball player and current friend of the North Korea dictator Kim Jong-un, kicked a photographer in 1997 during a basketball game and the photographer sued for personal injuries. Eventually a $200,000.00 settlement was reached and, as part of the deal, the photographer agreed to keep the settlement confidential.

In steps the Internal Revenue Service. The IRS asserted that since no specific dollar amount had been allocated for the confidentiality portion of the agreement, 60% of the amount should be taxed. The photographer appealed and argued that the tax value was de minimis, if any, but he lost his appeal.

So, dear friends, the next time a confidentiality clause is suggested by the defendant as a necessary part of the agreement, remember Dennis Rodman. Remember the photographer who had to pay taxes on $80,000.00. Remember that you should always try to avoid confidentiality agreements.  However, if you do agree, be sure to designate a specific dollar amount for that portion of the settlement and expect this amount to be taxable. For more information, see Amos v. Commissioner of IRS, T.C.M. of 2003–320. US Tax Court. 

Prior results do not guarantee outcomes.