Category Archives: Workers’ Compensation

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.

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.

Mileage Reimbursement Set at 56 Cents per Mile for 2014

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

Getting reimbursed for mileage and travel expenses is often part of the medical process in a workers’ compensation claim. However, it’s essential to keep detailed receipts and have a plan for submitting those expenses in a timely manner.

The federal government has set the 2014 mileage reimbursement rate to 56 cents per mile. This rate was effective Jan. 1, 2014. This is a decrease from 56.5 cents per mile last year, but the price of gasoline is also slightly cheaper.

Generally speaking, the federal rate changes annually. However, when gas prices went soaring in 2008, a mid-year increase went into effect.

As a reminder from a blog post that firm partner Todd Bennett wrote in 2011, injured workers can be reimbursed for activities such as “travel to seek medical treatment, pick up medications, or while participating in a vocational rehabilitation plan.”

The best way to do this is to work with your attorney and legal assistant to keep track of all mileage. This can include appointments for Independent Medical Exams (IME), too. Then your attorney can help you get reimbursed. 

It is often essential to save receipts and keep a record for yourself of your doctor’s visits and other reimbursable trips, including physical therapy and trips to pick up medication. Providing that log to your attorney and saving receipts incurred from specific doctor visits and other reimbursable trips creates a “narrative” that makes it easier to justify those expenses.

Because money is always tight for injured workers, contact an experienced workers’ compensation attorney if you have questions about a specific situation.

Prior results do not guarantee outcomes.

College Athletes Unionized? They Must Be Employees First

Northwestern University Quarterback Kain Colter

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

Northwestern University quarterback Kain Colter announced plans to form the first labor union for college athletes. The College Athletes Players Association, in concert with the Steel Workers (who have agreed to pay the legal bills for the effort) will try to unionize college athletes. The big question: whether college athletes can be considered employees.  If certified by the National Labor Relations Board, the union will be called the College Athletes Players Association. In order for the association to be recognized as a union, the players have to prove they are employees and that the NCAA or each school is its employer. Most experts indicate this is an uphill legal fight.

Worker’s compensation lawyers see everything through the prism of worker’s compensation law. Most State statutory schemes presume that a worker is an employee, except where the employee may be considered a volunteer or an independent contractor. Where the top five power conferences ACC, SEC, Pac-12, Big Ten, Big Twelve generate nearly $10 billion annually, it is hard to claim players are “volunteers” in this system.

Some college athletes who have been seriously injured have filed worker’s compensation claims. Those claims have all been dismissed on the notion that the injured player was not a “employee” and thus not entitled to benefits. (see our prior blog posts on this issue

Athletes who successfully use their college careers as a platform for a later career in professional sports are not the norm. In many situations, college players are injured, precluding any further athletic career for pay. There is no compensation awarded for this lost potential career. Furthermore, if an athlete is injured while on campus, once they leave school or graduate, the school generally does not covered future medical costs for that injury.  

Worker’s compensation lawyers will be monitoring the case with interest.

Prior results do not guarantee outcomes.

Are Firefighter Cancer Deaths an Occupational Disease?

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

Workers’ compensation has provided benefits or coverage for occupational diseases for generations. Occupational disease is defined by Nebraska law as: “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed.” This is a typical definition of an occupational disease. Some examples of recognized occupational diseases are black lung disease for miners, mesothelioma for asbestos workers, lung disease for rubber workers, and leukemia for workers exposed to benzene.  

More studies are done to determine the cause of diseases as medical science advances. A recent study concludes that smoke and chemical exposure by firefighters may cause higher rates of cancer among firefighters. Firefighters, while usually healthier than the general population, have a higher incidence of cancer. More studies need to be done to determine if the peculiar exposure to smoke causes or aggravates cancer.

As medicine and science evolve, there may be more recognized “occupational diseases” and more workers and their families compensated for harm caused by the workplace.

Prior results do not guarantee outcomes.

Construction Site Falls – Leading Cause of Fatalities in the Construction Industry

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

On January 23, 2014, a young man, only 30 years old, fell to his death while working on a Raleigh construction site. According to news reports, the deceased was working on scaffolding on an apartment complex and fell approximately five stories. The North Carolina Department of Labor is investigating the accident. It’s unclear exactly what went wrong.

Unfortunately, this was the second construction accident within one week in Raleigh. On January 22, 2014, a platform collapsed at North Carolina State University and three workers were injured. Fortunately, none of the injuries appear to be life-threatening. However, one of the injuries involved a trauma to the head which is always cause for serious concern.

Falls are the leading cause of fatalities in the construction industry. According to OSHA, the four main causes for workplace falls are (1) unprotected sides, wall openings, and floor holes, (2) improper scaffold construction, (3) unguarded protruding steel rebars, and (4) the misuse of portable ladders.

In North Carolina, we follow the “unexplained-fall rule” which holds that “if an employee sustains a fall and there is no evidence that it arose from a cause independent of the employment, compensation [i.e. disability and medical benefits] should be allowed.” North Carolina Workers’ Compensation: Law and Practice, with Forms, 4th Edition, Leonard T. Jernigan, Jr.

While workers’ compensation benefits should be provided in these type of cases, in some situations the injured worker may also have a personal injury claim against one of the building contractors. 

Prior results do not guarantee outcomes.

Facebook Pictures’ Use Evolving in Workers’ Compensation Cases

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

In the past, I have warned about the possible pitfalls of social media on a workers’ compensation claim.

However, the Nebraska Workers’ Compensation Court has never really ruled on Facebook in the context of discovery matters in a work comp claim, meaning how much access can your employer have to your Facebook account if you file a workers’ compensation claim? 

Recently, however, the Nebraska Workers’ Compensation Court (at least one judge) has taken the position that in order for your employer to gain access to photographs from your Facebook profile, it must “make a showing of the necessary factual predicate underlying [the] broad request for access.” In other words, your employer must have a decent reason to suspect that a certain photograph or something from your Facebook account has the potential to be relevant to the work comp case before the court will simply grant full access to your Facebook account to your employer.

Therefore, depending on your situation, your Facebook may be safe from your employer to some degree. However, this is a cautionary tale to remind you that even though your employer cannot simply have blanket access to all of your Facebook photos – at least according to one Nebraska judge – it does not mean that your Facebook photos or posts are necessarily safe from your employer gaining access to them at some point during your work comp case. I think the judge in this case takes a step in right direction, but you still must be aware that anything you put on Facebook may be subject to discovery (i.e., your employer may still possibly get access to it) at some point in the future.

Prior results do not guarantee outcomes.