Author Archives: Matthew Funk

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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When Is It Time To See The Doctor?

If you're hurt, get treatment right away.

Putting off seeing medical care is commonplace for chronic medical conditions. Under the Workers’ Compensation Law there is no timeframe for a claimant to see a medical provider. There is nothing in the law that requires a worker to see his doctor within 24 hours or 30 days of the accident. However, the sooner an injured worker sees a doctor, the better, especially if that worker is losing time from work because of the accident. A Law Judge will only grant awards for lost time that is backed up by medical reports.

That means if a member is out of work for three weeks before they go to a doctor, it is possible that Workers’ Compensation benefits might not be paid during that time period. In order for a claim to be successful in this situation the report that the doctor submits must have several things on it:

  • It must contain the history of the accident,
  • diagnoses a condition,
  • explain how the condition is related to the on the job incident, and;
  • comment on disability.

Disability is an essential component that must be on the reports. Without an opinion on disability, there is no evidence to dispute what the carrier doctors submit to the NY Workers’ Compensation Board.

Physicians are required to submit to the Workers’ Compensation Board (WCB) complete and thorough reports. The sooner that you see a doctor and have a report sent to the WCB the better for you and your case.

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Read This Before You Go To An Insurance Medical Examination

Insurance medical exams may seem like regular doctor visits, but these docs are not on your side.

Many times insurance medical examinations are considered by injured employees to be the same as Independent Medical Examinations (IMEs). There is nothing farther from the truth. These examinations are bought and paid for by the insurance company and for their benefit.

The insurance carrier doctor is no friend to an injured worker. He or she is a private consultant paid for by the carrier.

You should be prepared for these examinations by knowing your rights and how to protect them:

1) You have the right right to bring a family member or friend with you to the examination.
You can bring your spouse into the examination room during the examination. This is important because it allows for a witness to testify at court about the validity of the examination and to dispute tests that the doctor claims to have done.

2) You are permitted to audiotape or videotape the examination.
And there is nothing in the law that requires you to tell the insurance company doctor that you intend to tape the examination.

3) You should Continue reading →

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Emergency Medical Treatment Does Not Need To Be Authorized

If you don't obtain prior approval for emergency treatment, you can still file a workers' comp claim.

When an injured worker needs emergency medical care, prior authorization isn’t always possible and obtaining it does not bar a workers’ compensation claim. When a worker is hurt at work and is rushed to the emergency room for treatment, there often isn’t enough time to seek authorization from an insurance company and to obtain a claim number.

At the time of the treatment, if possible, the injured worker should let the hospital and medical provider know that the injury occurred at work and the exact details of all his or her injuries. This is sometimes an effort since emergency staff are rushed and understaffed. After the emergency care is provided the worker should immediately seek the guidance of an attorney to assist in filing a claim and obtaining reimbursement for the medical care.

At the time of the treatment, if possible, the injured worker should let the hospital and medical provider know that the injury occurred at work and the exact details of all his or her injuries. 

The law provides that the cost of Continue reading →

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Monday Q & A: Help – I forgot to keep track of the days I lost!

Failure to keep a list of lost work days won't harm your claim.

QUESTION: WHEN I GOT INJURED I DIDN’T KEEP A LIST OF THE DAYS I LOST. DOES THAT MEAN I CAN’T PUT IN A CLAIM FOR WORKERS’ COMPENSATION?

ANSWER: THE EMPLOYER IS RESPONSIBLE FOR REPORTING TO THE WORKERS’ COMPENSATION BOARD ANY DAYS LOST TO INJURY.

Joe had been out with that broken leg from the scaffolding accident for more than a month but less than three. That much he knew. However, he had misplaced his date book, and just wasn’t quite sure when he had returned to work. It was all hazy which might have to do with the mild concussion he had gotten from his fall. Joe was worried that if he didn’t have the exact dates his claim, his Workers’ Comp application wouldn’t be accepted. He began to think it was pointless to Continue reading →

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Monday Workers’ Compensation Q&A: Am I eligible for workers’ comp and unemployment?

You may be eligible for both workers' comp and unemployment.

QUESTION: I AM OUT OF WORK ON A WORKERS’ COMPENSATION INJURY. AM I ALLOWED TO FILE FOR UNEMPLOYMENT BENEFITS?

ANSWER: YOU MAY FILE FOR UNEMPLOYMENT BENEFITS, AS YOU ARE ELIGIBLE FOR BOTH BENEFITS.

Joe was recovering from that bad fall off the scaffolding. He was receiving Workers’ Compensation Benefits. But facing months ahead out of work and on his back he didn’t know if he could survive on workers’ compensation benefits alone. He was curious if he could also file for Unemployment Benefits. He called Mike, his best friend on the job and asked what he should do. What did his friend Mike say? Continue reading →

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Monday Workers’ Compensation Q&A: I filed a report and notified my supervisor. What else?

QUESTION: I FILED AN ACCIDENT REPORT AT WORK AND NOTIFIED MY SUPERVISOR. DO I HAVE TO DO ANYTHING ELSE?

ANSWER: YES! THE C-3 CLAIM STILL MUST BE FILED WITH THE WORKERS’ COMPENSATION BOARD BY THE INJURED WORKER.

Right before going on a cruise with his lovely wife for their 25th wedding anniversary, Joe got a pretty bad gash on his arm while fixing a pipe at work. The ER fixed him up quickly and when Joe got back to the office, he filed an accident report and then notified his supervisor, Mike in writing. Mike stuck his head out of the office and told Joe he would take care of the rest and to “get the hell out of here and enjoy that cruise!” Thinking he had covered all his bases to receive Workers’ Compensation, Joe gathered up his work gear and headed out to sail the next day to the Caribbean.

Stop, Joe! Stop!!

When a worker is injured HE or SHE must file a C-3 Claim with the Workers’ Compensation Board. It is the worker’s obligation to file this claim, NOT Continue reading →

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Monday Workers’ Compensation Q&A: My employer paid my salary, do I still have to file a claim?

QUESTION: MY EMPLOYER PAID MY SALARY WHILE I WAS INJURED AND OUT OF WORK. DO I STILL HAVE TO FILE A WORKERS’ COMPENSATION CLAIM?

ANSWER: THERE IS MORE TO A CLAIM THEN PAYMENT WHILE OUT OF WORK ?

Joe’s boss, Mike was a great guy. In fact, when Joe got badly hurt at work and was out for weeks, Mike paid Joe’s salary every week. When Joe got back to work, he hesitated filing a Workers’ Compensation Claim. After all, Mike had paid his salary the weeks he was out. And Joe didn’t want to appear ungrateful or greedy. What should he do?

File, Joe!! File!!!

If Mike drew Joe’s salary paid from Joe’s accrued sick or vacation time, Joe would not get that time back unless he filed a claim. That means the eight weeks of vacation and sick time Joe had coming to him had been put toward the time he spent recuperating at home. Unless Joe submitted a claim, he’d have to start from scratch to build up vacation and sick time.

“Aside from the monetary award, there is lifetime medical coverage for a Workers’ Compensation Claim.”

The payment of wages is only a small portion of a Workers’ Compensation Claim and NOT the only thing Joe is entitled to. In an earlier column, an injured worker can make a claim for a schedule loss of use if an extremity is injured even if salary was paid.

More importantly, Continue reading →

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