This is a question that I am asked on a very frequent basis.  One of the biggest problems with the New York State Workers’ Compensation Law is that in order to qualify for total disability payments you must show that you are unable to perform any type of employment.

This means that a construction worker who is required to lift heavy objects will be deemed partially disabled if he or she is able to answer a telephone or work at a computer desk.  This is absurd given the fact that most construction workers do not have the training or education to do sedentary or deskwork.  Nonetheless, in almost every case claimants are reduced from total disability to partial disability shortly after their injury.  Many times they can do nothing about it.

Why is the law so absurd?  We believe it is because the lawmakers have very little compassion for the blue-collar working class.  The Workers’ Compensation Laws force injured workers back to work even if they are physically unfit to do their jobs.  In many cases, claimants cannot survive on partial disability payments and to avoid losing their homes will return to work prematurely.

While the Workers’ Compensation Law is grossly inadequate, it is crucial that you secure the maximum benefit that you may be entitled to.

If you have questions regarding your legal rights or whether or not you are receiving the proper amount of compensation, please feel free to contact our office.

The answer is yes.  However, there is a maximum amount that someone can receive when his or her Workers’ Compensation and Social Security benefits are added together.

The Social Security Administration will review a claimant’s earning history during the five years before they became disabled.  They will select the year with the highest earnings during that time frame.  The claimant can receive only 80% of that amount including both Social Security and Workers’ Compensation benefits.

If the amounts payable from Workers’ Compensation and Social Security exceed the 80% figure then the Social Security benefits, not the Workers’ Compensation benefits, will be reduced accordingly.

For this reason, it is crucial that the Social Security Administration be advised if and when Workers’ Compensation benefits are increased, decreased, or suspended.

A Rhizotomy procedure is covered under the New York State Workers’ Compensation Board’s Medical Treatment Guidelines.  Section D.11 is the pertinent section and recommends this treatment as “a last resort” in patients with chronic back pain.

If a patient has received relief from a facet joint injection, a Rhizotomy may be indicated.

Because this procedure is not listed in Section A.14, it does not appear to require pre-authorization.  As such, if the treating physician has review the Guidelines and feels that the patient’s circumstance fits within them, they may schedule the procedure and can expect to receive payment from the insurance carrier without the delays of securing a variance or prior authorization.

If your Workers’ Compensation claim is being controverted or denied, you may still qualify for lost wage benefits under the New York State Disability Law.

In many instances, the New York State Disability carrier will require proof of a controverted claim before benefits will begin.  Form C-7 is the Workers’ Compensation carrier’s notice of controversy and should be provided to the New York State Disability carrier at the time the disability claim is filed.

Even if this is properly submitted, many disability carriers will deny the claim.  Often times a hearing is necessary so that an Administrative Law Judge can determine whether New York State Disability benefits are payable.

In most instances, either Workers’ Compensation Board or New York State Disability benefits can be secured so long as the attended physicians provide the appropriate medical evidence indicating a disability and the cause thereof.

This question has been asked in my office more times than I can count.  My response is always the same and it goes something like this:

“If your doctor or the insurance carrier’s physician has indicated that you can do light work, the Law requires that you take certain steps in order to preserve your right to continue to get lost wage payments.”

It does not matter if you do not have the training or experience to do lighter type work.  What matters is that you take the steps outlined below so that your benefits can continue.  It can be a lot of work but it is crucial to insuring ongoing payments.

1. In the Capital District area of New York State, you should contact Access at(518)402-1140 and set up an appointment for a consultation.  Access will evaluate your ability to be retrained and begin that process for you.
2. You should contact your local One-Stop office.  One-Stop is located at your county’s Department of Labor facility.  One-Stop should be able to offer an orientation program, help you develop a resume, and register you into their computer database.  It is not enough to simply register with One-Stop.  You should, at least once a week, go to the One-Stop location and do a detailed search as to whether or not there are any jobs available that meet with the physical limitations noted by your physician or the insurance carrier’s doctor.
3. We strongly recommend submitting numerous job applications for light duty work.  These applications can be made in person or online.  You cannot have too many applications or job inquires.  At a bare minimum, you should have at least 50, however, the more the better.

Every step that you take should be documented in a journal so that if and when you are asked to give testimony you will be fully prepared to describe all of your efforts in trying to be retrained and searching for employment.

Given the current job market, it will be extremely difficult to find work.  However, the law requires and the Judges want to see that you are making every possible effort to work within your limitations.  If you cannot find work that will not be used against you.  It is demonstrating that you tried to look for work that is the major hurdle in partial disability cases.

If you have questions or are unsure as to whether or not you should be searching for employment, please feel free to contact our office.

New York State Workers’ Compensation Board Medical Treatment Guidelines became effective in December 2010.  The Guidelines pertain to injuries involving the neck, back, shoulder, and knee.  More recently treatment guidelines for carpal tunnel syndrome have been published.

Your doctor’s familiarity with the specific modalities of treatment found in the Guidelines could make a huge difference in your medical care.  A doctor who is familiar with the Guidelines will know that for many types of treatment he can simply provide the medical care without any pre-approval or authorization delays.

However, if the treatment being recommended is not listed in the Guidelines then a variance procedure must be utilized.  Proper filing of variance requests could be the difference between treatment being approved or denied.

It is in your best interest to confirm that your physician is familiar with the Guidelines beginning treatment at his or her office.  This will make delivery of your medical care a much simpler and effective process.

If you have been injured at work it is imperative that you promptly file a written accident report with your employer.  It is not entirely uncommon for an employer to refuse to provide an accident report to an injured worker.  This can happen anywhere but it is a more common scenario with smaller employers who fear that their Workers’ Compensation premiums will skyrocket should a claim be filed.

If you have been injured at work and verbally report the incident but your employer refuses to give you an incident or accident report to complete, you can always provide your own written report.  You don’t need any specific form but you do need to put in writing your version of what occurred.  You should sign the letter or report and provide it to your employer.  Always keep a copy for yourself.  This way you will be protected against the likely defense that you did not report the injury or that you did not report it in a timely fashion.

The law requires that an accident be reported within 30 days.  Do not let your employer give you the run around or some type of excuse as to why they don’t have an accident report available.

Taking the steps to provide a written statement could mean the difference between having your compensation claim paid or rejected by the insurance carrier.

In the vast majority of Section 32 settlements, the insurance carrier requires that in return for the settlement payment the claimant give up all rights to future lost wage claims along with medical benefits.  The insurance carrier, when settling your case, wants to insure that their liability has ended and that no further expense will result from your claim.

In relatively rare circumstances, insurance carriers may offer a Section 32 settlement on the indemnity (lost wage) portion of your claim while keeping the medical portion open.  This usually occurs where the Medicare set-aside is required because a claimant is Medicare eligible.  If the Medicare set-aside amount is significant some carriers will consider keeping the medical portion open.  This means that the settlement proceeds will only represent future lost wages and the carrier will retain liability for your causally related medical costs.

Under the New York State Workers’ Compensation Law, volunteer firefighters injured in the course of their firematic duties are eligible for lost wage/workers’ compensation benefits.  The proper form to file following an injury which occurred during the course of volunteer firefighters activities is known as a VF-3.  This form requests information regarding the fact and circumstances surrounding the injury, the nature of medical care already received, and other important items.

It is important that injured firefighters do not delay in filing their claim for benefits.  If you have been injured while working as a volunteer firefighter and want to make sure that you receive the proper compensation, we strongly recommend consulting with a New York State Workers’ Compensation attorney.  Voluntary firefighters are provided special enhanced benefits under the current laws.

The New York State Workers’ Compensation Law allows any party to request a Workers’ Compensation Board Review of a Law Judge’s decision.  This process is initiated by the filing of an Application for Board Review, form RB-89.

The party requesting review, also commonly called an appeal, has 30 days from the filing date of the Notice of Decision being challenged.  If the decision results from findings made at a hearing, the party appealing has 30 days after the written decision is filed to file their appeal.  This means that he or she likely has a little more than 30 days from the date of the hearing to file for the appeal.

If you have attended a hearing or have received a written decision in the mail that you do not understand and believe there may be a basis to file an appeal, do not delay as the 30 days timeframe moves quickly.