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Top 5 Blunders That Can Cost You Your Benefits

June 22, 2010 By Paul Giannetti

Part 1-Returning to Work Without Notifying Anyone

If you are collecting lost wage payments and return to work, it is crucial that you notify your attorney and the insurance carrier before you start working. It does not matter if you are earning significantly less than you were before your injury or whether it is off the books work.  Failure to notify the insurance carrier in advance can result in suspension of benefits and potential Section 114 Fraud charges.

While it may seem obvious that the insurance carrier paying lost wage benefits needs to be notified upon a claimant’s return to work, many people are entirely unaware of this requirement.  In certain circumstances, once the insurance carrier is notified that you returned to work, it is possible to claim partial compensation benefits under the concept of reduced earnings.  That topic is covered elsewhere on our website.

Part 2-Failing to Secure Timely Examinations and Proper Disability Ratings

In cases where weekly compensation benefits are being paid, claimants are often unaware or forget about their responsibilities to provide periodic medical reports to the insurance carrier and the Workers’ Compensation Board.

Most Workers’ Compensation Law Judges in the Albany, New York District require updated medical examinations and reports documenting a specific level of disability every 45 days.  This timeframe is often strictly enforced by the Judges and the Workers’ Compensation Board in general.

Even if you suffer a very severe disability, it is improper for a Law Judge to continue your benefits if you have not been examined by your physician in the last 45 days and he/she has not provided proper documentation outlining your restrictions and limitations.

Often times, medical providers have no real need to examine patients every 45 days.  Nonetheless, it is extremely important that the periodic exams be scheduled within this time frame so that lost wage benefits may be continued.

Being examined every 45 days is of no help unless the attending physician properly submits his medical reports and clearly documents the patient’s disability status.  An examination report that is silent regarding disability is worthless in securing lost wage benefits.

Part 3-Independent Medical Examinations

In Workers’ Compensation claims, insurance carriers often schedule Independent Medical Examinations (IME) by their paid consultants.  Many claimants are skeptical of and intimidated by these examinations.  In reality, the purpose of the examinations are for the insurance carrier to secure medical evidence that will allow them to save money either by reducing or suspending your Workers’ Compensation benefits or refusing to pay for ongoing medical care.

Not withstanding this reality, the Workers’ Compensation Law requires claimants to submit to IMEs.  Failing to comply with a scheduled IME can and often results in suspension of benefits.  There is no way to avoid the IME and the best policy is to always appear when scheduled.  Blowing off the IME will only compound the controversies in your claim.

Part 4-Exaggeratting Your Injury and Symptoms

The term “malingerer” is often used by doctors and lawyers to identify a litigant who seems to exaggerate the level of their pain and disability.  Judges and juries will often “punish” a litigant who is perceived as a malingerer.

The best policy is to be as truthful as possible regarding the severity of one’s injuries and physical complaints.  It is also very important not to over exaggerate the level of activity that a litigant may be involved in.

In both Workers’ Compensation claims and personal injury matters, video surveillance is often obtained at the request of the insurance carrier.  The activities depicted by the litigant in the video surveillance will then be compared to the testimony of the litigant to see whether the two are consistent.  This means that if a litigant testified that he or she is unable to do any household work, always walks with a cane, or is unable to drive a vehicle but the video surveillance demonstrates that they are able to do these specific items, the litigant will face significant consequences with his or her case.  At the very least, situations such as this bring the creditably or truthfulness of the litigant into question.  Worse yet, it can give rise to criminal charges under Section 114 of the Workers’ Compensation Law.  Section 114 imposes civil and criminal penalties for intentional misrepresentations made by claimants for the purpose of securing benefits that they may not be entitled to.  Over exaggerating one’s symptoms can lead to this charge.

Part 5-Failing to Understand Your Obligations to Remain “Attached” to The Labor Market

The most common and successful defense used by insurance attorneys is known as “voluntary removal from the labor market.”

The Workers’ Compensation Law requires that a partially disabled claimant remain “attached to labor market.”  Partially disabled means that someone is less than 100% disabled from any and all forms of employment. If you are unable to perform your job but may be able to do light or sedentary work, regardless whether or not you have any experience doing that type of work, then you are automatically partial disabled and not totally disabled.

In order to meet your obligation to remain attached to the labor market, the Workers’ Compensation Board has filed a recently decided case decision specifically documenting what needs to be done.  The easiest way to remain attached to the labor market is to take 2 steps.

  1. Contact the New York State Department of Labor’s One-Stop Career Center to schedule an appointment and attend an orientation session.
  2. Meet with a One-Stop Counselor to draft a resume. Once your resume is drafted it should be registered in the One-Stop database.  Once the resume is registered, it is crucial that the claimant follow-up regularly in order to see if there are any jobs that match.  If there are job matches and/or referrals they need to be followed up on.

All of these actions should be documented as this is part of the evidence that the Judge will be looking for at the time the claimant’s testimony is elicited.

Phase 2 of the attachment formula requires that an injured worker contact VESID and actively participate in VESID’s retraining program.

There is another way to remain attached to the labor market which is not recommended.  That involves doing an exhaustive employment search and submitting numerous job applications and/or resumes for employment within the claimant’s physical limitations.  Since the new decision was filed by the Workers’ Compensation Board, the job search method is not recommended as it is much more difficult to accomplish.  Additionally, there is a question as to how many jobs a claimant must look for in order to remain attached to the labor market.

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