Category Archives: Workers’ Comp’ Basics

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.

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10 Things To Do If You Get Hurt At Work

If you are hurt at work make sure to follow these guidelines to protect your rights

When you’re injured at work in New York, people often ask what they should do immediately following the accident. There are several basic things you should do to protect your rights under New York State Workers’ Compensation Law.
  1. Report the accident to your supervisor/employer as soon as is possible. Under NYS law you have 30 days to give your employer notice of the accident. Report the injury to your supervisor and be clear about how it happened and that it happened at work.
  2. Follow up with your employer to ensure they have prepared an accident report. If a report is not being prepared, you should write a letter stating the circumstance of the accident for your Supervisor. If you can, send your letter by email or have your supervisor sign a note that acknowledges receipt. A paper trail is always helpful.
  3. When you receive a copy of the accident report, or any paperwork from your employer or its insurance carrier, be sure to make copies for yourself. Keeping your own file is always helpful in the long run. You should bring that file with you to hearings to show your attorney and the judge, if needed.
  4. If you are a member of a union, you should tell your shop steward of the injury as well. Be sure that you report to the shop steward who you gave notice to, when you gave it, and ask what your union policy is on Workers’ Compensation injuries.
  5. Keep a log of<!–more–> all significant contacts you make along the way. Note your doctor visits, conversations in adjusters, and any documents received.
  6. If you are out of work because of your injury, you need to see your doctor every 45-90 days (depending on your injury). The reports that your doctor submits to the NYS Workers’ Compensation Board is the evidence required to support your continuing disability. Without those reports your treatment may be obstructed and any indemnity payments you’re receiving may be stopped.
  7. When you visit the doctor remember to be clear and discuss in detail the circumstances of your injury. Everything from what job you do, to where you were hurt, to the mechanics of the injury (For example: Did you fall backwards? Sideways? Land on your knees? Your back? Some other way?)
  8. If your doctor says you can return to work in a lighter capacity, be sure to get a letter that lays out what physical restrictions you have. You should keep a copy for yourself and provide copies to your employer.
  9. Do not be afraid to follow up with your doctors to get copies of the medical reports they are submitting to the Board. Up to date medical evidence is an essential component of a workers’ compensation claim. You do not want to leave your fate to the efficiency and prowess of others to prepare, scan, and upload documents to State computer programs.
  10. If your doctor tells you that treatment has been denied, discuss the need for treatment with your doctor and ask if he/she needs you to sign a “variance” request to affirm you would like to bring the issue to the Board.

Sometimes the “smell test” is most applicable. If something doesn’t smell right don’t be afraid to consult your attorney (or retain one if you haven’t already). There are a number of moving parts in these cases — doctors, adjusters, independent medical consultants, physical therapists, judges, your lawyers, insurance company lawyers — that asking questions and doing your best to get a firm grasps on the status of your claim is only going to help you as you recover from your injury.

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How To Select A Good Lawyer For Your Problem

Today’s post comes to us from Rod Rehm of Rehm, Bennett & Moore.

Selecting and hiring a good lawyer is critical in dealing with a legal problem. Lawyers are increasingly limiting the types of cases handled in an effort to provided better representation. The Internet is a common starting point for consumers to locate and select lawyers who have the right kind of knowledge and experience for their problem. I recommend the following steps for selecting a lawyer.

1. Check with family, friends, neighbors, or others whom you trust and respect to learn if they know of a lawyer or law firm who they would recommend for the kind of problem you are dealing with. This approach is the traditional way to find a professional and often leads to a good attorney-client relationship with satisfactory results.

2. Consult a general-practice lawyer you know and ask for recommendations. This approach gives you the advantage of having someone who knows area lawyers help you find the right mixture of knowledge and expertise.

3. Internet searches will turn up a large variety of lawyers who handle the kind of problem you are experiencing. Read several of the websites with a careful eye for the following:

a. Is the firm A-rated by the leading peer-rating organization Martindale and Hubbell? The ratings are very good indicators of how the firm is regarded because they come from judges and other lawyers who work with the firm.

b. Do the members of the firm appear to be actively involved in organizations dealing with your kind of problem? Are the lawyers officers or board members of such groups? Have the lawyers been speakers at seminars? This kind of activity shows the lawyers are interested in improving and protecting the law for people with your kind of problem and respected by other lawyers and judges. Here are some examples of law organizations. For employment matters, see the National Employment Lawyers Association (NELA). For workers’ compensation organizations, see the Workers’ Injury Law and Advocacy Group. For other personal-injury matters, see the American Association for Justice. For general trial-attorney needs, see the American Board of Trial Advocates.

c. Do the lawyers from a firm belong to any organizations indicating that they have been honored or selected for membership based on knowledge and experience?

d. Do the lawyers appear to belong the bar associations in their area? Have they served on any committees, sections, or governing bodies?

4. Go to Martindale and Hubbell and use the lawyer search. You can search for lawyers by city, state, and specialty. Lawyers are rated as follows. AV® Preeminent™ is the highest rating, followed by BV® Distinguished™ then Distinguished. We recommend only A-rated lawyers if they are available. One way to get the best of the best is to limit the search by checking the box “Featured Peer Review Rated.” The website is very user friendly.

5. Contact the lawyer or lawyers you focus on, and talk to the lawyer. Learn how the lawyer interacts with clients. The following are some questions that might be helpful: Do you feel comfortable talking with the lawyer? Are they Internet users? Will you have a specific team of people working with you? How do they charge? Can you have Skype conferences or do they have other face-to-face conferencing options through the Internet? Will retainer documents be required and available for review before an appointment?

These suggestions provide a framework on how to locate and evaluate an attorney to help you. The references we refer to are industry standards, so they not subject to as much manipulation as other online approaches, such as reviews, testimonials, or video recommendations on lawyers’ websites.

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Returning to Work Shouldn’t Be This Hard

Communicate with your doctor and follow a few guidelines to stay safe when you return to work.

Today we have a guest post by our colleague Roger Moore of Nebraska.

In virtually all workers’ compensation cases an injured worker has to return to work in some capacity. Often these are very stressful situations and it is not uncommon for issues to arrise including conflict with an employer over what a safe return to work actually is. Your goal should be to continue to earn a paycheck while at the same time not risking further injury. Many times this is easier said than done.

Whether it’s a supervisor who ignores your restrictions or a human resources department that actively skirts them, issues frequently come up. We see employers do everything from requiring an injured worker to lift or stand more than they should, to pressuring an employee to return to work the day after a surgical procedure.

You can expect that a nurse case manager or HR specialist from your employer is communicating with your doctor’s office about your return to work. Sometimes they may misrepresent the work that they expect you to do upon your return. It is your job to fill in the gaps.

The most important thing an injured worker can do is communicate with his or her treating physician.

  1. Educate your doctor about the job you were doing when you were initially hurt.
  2. When you are assigned to work, educate your doctor about the light duty job you are doing.
  3. If you are assigned to a job that is difficult for you to perform due to your injury, talk to your doctor about what aspects of that job are difficult. The doctor will likely be willing to restrict you from doing that specific activity.
  4. If your employer is Continue reading

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Beware Part Time Employment

Today’s post comes to us from our colleague Tom Domer of Wisconsin.

This post illustrates some of the differences in the workers’ compensation laws in each state. As Tom mentions below, New York’s law is a little different from Wisconsin’s law. Unlike Wisconsin, New York allows for an injured workers’ average weekly wage to be calculated based upon concurrent employment. That is, the New York workers’ compensation law calculates average weekly wage based on the injured workers’ total compensation from all jobs. For example, if a worker is employed at the Goose Island corporation making $600/week and also has a second job at Troegs Incorporated where he makes $400/week, and the employee is injured at either, New York’s workers’ compensation law calculates his average weekly wage based upon the combined weekly salary from both employers, which is $1,000.

Workers’ Compensation will only cover you for the specific job on which you got hurt.

Wisconsin pays worker’s compensation benefits based only on the job on which an employee works, even if the employee’s injury makes it impossible for him to work in his regular job. In these difficult economic times, many workers are forced to take a second part time job to supplement their incomes. Unfortunately if the worker is hurt at the part time job, only the wages earned from the part time job will be used to calculate worker’s compensation benefits, even if an injury on the part time job means the worker will not be able to return to his full time job.

For example, a cook re-hired at a former wage by the restaurant where he was hurt could not claim a Loss of Earning Capacity based on his inability to return to his second job as a cab driver. Continue reading

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What If An Independent Medical Examination Doctor Doesn’t Agree With My Doctor?

IME doctorToday’s wise words come to us from my colleague Roger Moore of Nebraska.

As I have written previously,  in Nebraska, you have the right to choose your family doctor to treat you for your work injury.  For purposes of the workers’ compensation court, that person becomes your “treating doctor.”  However, sometimes an employer or insurance provider selects a non-treating doctor for an “independent medical examination” (IME). According to the workers’ group National Association of Injured & Disabled Workers (NAIDW), IMEs are used for three reasons:

  1. “to determine the cause, extent and medical treatment of a work-related or other injury where liability is at issue”
  2. “whether an individual has reached maximum benefit from treatment”
  3. “whether any permanent impairment remains after treatment”

When an IME is scheduled, this probably means your employer or the insurance company is trying to fight some aspect of your workers’ compensation benefits.  An IME doctor frequently bases his or her findings on what is often a very brief visit with a patient.  Sometimes they don’t even perform a physical examination before rendering their opinion.  Rarely do they issue opinions that are favorable to an injured worker.  For that reason, when an examination like this is scheduled, my policy is to Continue reading

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Nannies, Baby-sitters, And Comp Coverage: Yes, We Still Have “Domestic Servants”

Today we have a guest blog from our colleagues Nathan Hammons and Charlie
Domer of Wisconsin.

Most families in Wisconsin have hired a baby-sitter or nanny to watch their children. The pay generally is in cash for a defined period of time. Does the situation create an employer-employee relationship, entitling an injured baby-sitter to worker’s compensation benefits?

Under the Worker’s Compensation Act, most employers in the state are required to provide worker’s compensation coverage for their employees. Employers of ‘domestic servants’, however, are completely exempt from the requirement. (Wis. Stat. §102.07(4)(a)1.) Unfortunately, neither the Act or Wisconsin courts provide a definition. So, what exactly is a domestic servant?

Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

The name ‘domestic servant’ is antiquated. It brings up old images of butlers, maids, and other people toiling away in the mansions of royalty and the wealthy. Indeed, search Wikipedia for ‘domestic servant’ and you’ll be directed to ‘domestic worker’, the modern term and one that doesn’t imply inequality in the workplace. Without citation or authority, a Department publication indicated that it has “consistently ruled that persons hired in a private home to perform general household services such as nanny, baby-sitting, cooking, cleaning, laundering, gardening, yard and maintenance work and other duties commonly associated with the meaning of domestic servant, meet the definition of domestic servant intended by the Act.” Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

Consequently, nannies Continue reading

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Misdiagnosed Worker Can Amend The Cause Of Injury More Than 2 Years Later

It isn't always easy to know what is causing pain. Multiple doctors may get it wrong. Be persistant.

The Appellate Division Third Department issued a decision last week (Searchfield v. Lowe’s Home Centers) that is interesting case because it pertains to the establishment of an injury that was originally misdiagnosed.

In October 2005, an employee was injured at work while lifting a hot water heater. As a result of the injury the employee went to the emergency room. He was diagnosed by an emergency room physician with myofascial strain of the legs and hips. A November 2005 physician’s report diagnosed the claimant with hip/thigh sprain and sciatica. The later medical reports focused on the groin, lower back and leg pain.

In July 2006, a Law Judge established the claim for a work related injury to the claimant’s lower back. However, the employee continued to report worsening symptoms in his hip area. In 2009, the claimant saw an orthopedic surgeon. The doctor performed a MRI of the right hip. The MRI revealed a right hip labral tear that required surgury. According to the surgeon the claim was originally misdiagnosed and the claimant had, in fact, sustained injuries to his right hip as a result of the October 2005 accident.

The claimant applied for a hearing to amend the claim for the right hip. The Judge ruled that the right hip claim was time barred (pursuant to Workers’ Compensation Law Section 28). This states that a claim for a causally related condition must be made within two years of the date of accident. On appeal the Board Panel reversed and the Appellate Division affirmed the Board Panel.

The Appellate Division stated that the early medical reports reflect initial concerns relating to the claimants hips. Also there was supporting medical evidence that the claimant’s ongoing pain was the result of a labral tear in the right hip, a condition which is often misdiagnosed as a low back injury. The Court went on to add that the claimant could not have filed a claim for a causally related right hip injury at the time of the accident because it was not properly identified and diagnosed.

This case is important as it allowed the amendment of a claim for a serious injury that misdiagnosed early on in the case.

You can find the entire court decision here.

 

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