Author Archives: Catherine Stanton

Medical Care Politics in Worker’s Compensation

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

The mythology surrounding employee fraud in worker’s compensation is pervasive. Many of my clients begin their conversations with me indicating the following: “I’m not one of those folks faking their worker’s compensation claim.”  The exaggerated media publicity concerning employee fraud has also resulted in outright worker intimidation regarding filing a claim. I had this conversation today with a prospective client.

Attorney: Why didn’t you report the incident?
Client: I didn’t want to have that on my record.  Nobody will hire me if I have a worker’s comp injury.
Attorney: Why didn’t you seek medical treatment?
Client: I do not have insurance.
Attorney: Can you obtain insurance under the Affordable Care Act?
Client: You mean Obamacare?  No way!

Fear of being stigmatized as a complainer, whiner, or simply a recipient of worker’s compensation benefits has prompted many legitimately injured workers from filing a worker’s compensation claim.

The adverse publicity concerning the Affordable Care Act (and its pejorative popular name “Obamacare”) results in many otherwise qualified workers from obtaining the health care they need, especially when denied by a worker’s compensation insurance carrier. 

The politics of medical care intrudes in the worker’s compensation arena daily.

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Is Worker’s Comp Profitable Because Disabled Workers Don’t Get Benefits?

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

I recently wrote an article in the national magazine for the Worker’s Injury Law Advocacy Group (WILG), the Worker’s First Watch, Fall 2013 reviewing the worker’s compensation resources research report indicating that the worker’s compensation industry is extremely profitable.  I began representing injured workers in 1976.  It seems every year since then worker’s compensation insurance carriers have complained they are not making profits and the culprit responsible is increased benefits paid to workers.  In fact, over the last 20 years the insurance industry has been profitable in 16 of 19 years and broke even in one year.  Several factors account for this profitability, including worker’s compensation insurance carriers successfully pursuing deregulation and “reform” measures to restrict eligibility. 

The net result of increasingly restrictive rules for compensability in many State worker’s compensation systems as a result of “reform” resulted in many workers with disabilities caused by work who did not receive worker’s compensation benefits.

The general trend since the early 1990s has been to restrict coverage through State statutory and administrative “reform”.  Many workers face lengthy litigation and frustration.  More restrictive regulations may preclude claims where the worker lacks “objective” medical evidence for his injury, or is unable to medically document persistent pain, or has a disease resulting from multiple causation that cannot be distinguished from workplace disease, or has job stress related disorders.  One significant problem is that many injured workers fail to file for benefits.  (For those of us in the trenches daily, these pose obstacles to compensability.)  Among the many reasons for failure to file are:

  • Ignorance of worker’s compensation and eligibility.
  • Ignorance of the work-relatedness of the condition.  (Many workers know they suffer an impairment but do not know the health condition is caused by work.)
  • Reimbursement for medical care or Short Term Disability benefits available.  (Many workers use Short Term Disability or group medical insurance rather than worker’s comp.)
  • Belief that the injury is lacking in sufficient severity.
  • Many workers fear job loss or other forms of retaliation, who do not want to report a condition as work-related.
  • Workers do not want to be perceived as complainers or careless.
  • Deciding not to file based on the negative experience of co-workers.
  • Fear of the stigma associated with being a worker’s compensation claimant.  (Much of this stems from the intense focus on fraud perpetrated by the insurance industry, resulting in increased levels of stigmatization, decreasing the likelihood injured workers will file for benefits.)
  • Pressure from co-workers on safety incentive programs.  (These programs, sometimes called “Safety Bingo” create incentives not to report.)

Those of us who have hearings daily that involve the non-reporting of an injury, or significant time delay between the occurrence of an injury and the reporting of an injury, can refer to the above list for some ammunition on the “non-filing” or “late filing” issues.

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How To Prepare For Your Workers’ Compensation Hearing

If you have a serious injury on the job and file a claim for workers’ compensation benefits you will most likely at some point in time have to attend a hearing before the Workers’ Compensation Board. The hearing process can be daunting to many first time attendees. They don’t know what to expect; what to bring or in many cases even what to wear. Those who have attended hearings are upset about the fact that they have to wait for a long period of time in a huge waiting room only to be rushed in and out of the hearing courtroom or “part” in a matter of minutes. They complain that while sitting inside a hearing “part”, the parties all seem to be speaking in codes and abbreviations and they don’t seem to really understand what has occurred. 

I am hoping that by providing information to you the hearing process does will not be as overwhelming and as confusing as it seems. When I first started in the practice, the board regularly scheduled hearings for any and all outstanding issues including need for treatment and or surgery. Most injured workers had numerous hearings before the workers’ compensation board with the same judge presiding and in many times the same insurance representative. Hearings were scheduled every 3-4 months untill the case was resolved which could take about 2 years.  

Today however things are radically different. Most times medical requests are dealt with in-house. The medical treatment guidelines lay out specifically what is pre authorized if certain medical conditions apply. If the treating doctor wishes to pursue treatment outside the scope of the treatment guidelines he must request it and this may be authorized or denied. These requests and denials are all done through paperwork and the injured worker unfortunately has very little to say in the matter.

The amount of hearings has declined tremendously so if you are not represented by an attorney you need to be prepared. 

  • Put together a file. 
  • Make sure any administrative decisions have established all sites of injury you are claiming. If not, you need to tell the judge that you have a claim for other sites and you will be directed to produce medical where appropriate. 
  • While your treating physician should be submitting regular medical reports to the workers’ compensation board and insurance carrier, you should always have your own copies of your medical records including diagnostic studies. 
  • You are entitled to reimbursement for mileage and prescriptions related to your claim. Bring copies of bills and mileage requests if the carrier has failed to reimburse you for these expenses. 
  • You should bring copies of all pertinent paperwork with you to proceed with your claim. 
  • Do not ever come late to a hearing but bring reading material as many cases rarely start at the time indicated. However if you are late the judge will probably not recall your case and now you must wait for a rehearing. 
  • You should be dressed appropriately and while a suit is not required, be mindful of the fact that you are appearing in a court room. 

The key to being your own successful advocate is to be prepared, be polite and be patient. 

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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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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.

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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.

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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. 

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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. 

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