July 30, 2012

New York State Workers' Compensation Law Section 123

If you have an old Workers' Compensation case and that has become disabling, section 123 of the Workers' Compensation Law may affect your rights to ongoing lost wage benefits.

While the interpretation of Section 123 is much more complicated, the statute says that if a case is more than 18 years old and more than 8 years have elapsed since the last payment of Workers' Compensation benefits, the claim may be barred from any additional lost wage claim thereafter.

Interpretation of the statute is tricky because another portion of Section 123 terms on whether or not a case was "closed" in a legal sense in certain timeframes.

The purpose of Section 123 was to limit an employer's or insurance carrier's liability for inactive, stale cases.

July 26, 2012

Do I Need A Lawyer For My Workers' Compensation Claim?

Many claimants believe that the Workers' Compensation system is easy to navigate and that there is no need for an attorney to get involved. However, nothing could be further from the truth.

In the recent article, the New York Times, characterized the New York State Workers' Compensation system as "befuddling." It documents the nightmarish delays and states that our system is "arguable the most adversarial of any state in the nation."

Unfortunately, much of the article is correct. Attempting to navigate the Workers' Compensation system without an attorney is not a wise decision. Even with an attorney, there are still significant delays and inequities that cannot be avoided. However, an experienced Workers' Compensation attorney will be able to counsel you regarding your legal rights under the system and will plot out the different scenarios that may develop in the future as your claim proceeds.

If you have been injured at work and reside in the Albany/Capital District area of New York State, we would be happy to discuss your specific circumstances with you.

July 23, 2012

Menands Workers' Compensation Hearing: Who Will Do The Talking?

In my law firm in Albany, NY I have clients who have received a hearing notice from the New York State Workers' Compensation Board and will often ask whether or not they will have to talk at the hearing.

Unless the hearing is schedule for testimony, the answer is usually no. Represented claimants usually have to do very little or no talking at the time of the hearing. Counsel will make arguments to the Law Judge and to opposing counsel. Legal issues will be discussed, argued, and decided upon by the Law Judge.

Following a Workers' Compensation hearing, the claimant usually has no idea what has happened. That is when we sit down with them and explain point by point what the legal mumbo-jumbo they just heard in the hearing room means to them. Are their benefits being suspended or reduced or are they being increased? Has their medical treatment been denied or approved? Is their case going into litigation or will it remain status quo? What does the future hold for their claim?

If you have a Workers' Compensation hearing or simply have questions about your legal rights under the New York State Workers' Compensation Law, we will be happy to speak with you.

July 19, 2012

Hiring A Doctor For Your Case

In rare instances, it may be appropriate to hire a consultative doctor to provide information regarding a specific medical problem. However, it is always better to secure this information from your treating doctor if possible.

A treating doctor's opinion will be given more weight by the Administrative Law Judge than will a consultative doctor. This is because a consultative doctor's credibility may raise a red flag to the Administrative Law Judge hearing the case. The Judge may be suspicious as to why an outside doctor had to be hired as opposed to an attending physician simply being asked to comment.

July 17, 2012

Does Your Employer Have To Offer You A Light Duty Job?

If you have been injured at work and your doctor has released to do a lighter job, your employer is not required to offer you work. Many employers have light duty programs wherein they will offer modified work duties but this is not required by State Law.

Failure to return to work when offered a light duty job may result in suspension of Workers' Compensation payments. Even if the light duty job offered by your employer is at a lower pay rate or for fewer hours than you are normally used to working at your regular job, you should not refuse that position.

If offered a light duty job, specific action should be taken.

If you have been injured at work and reside in the Capital District area of New York State, we would be happy to discuss your case with you.

July 12, 2012

Injuries During Lunch Breaks

Cases involving injuries during lunch breaks or coffee breaks are almost always fact specific. This means that the specific circumstances surrounding a particular injury are what the Law Judge and Workers' Compensation Board will focus on in determining whether such an injury or accident should be covered under the Workers' Compensation Law in New York State.

A distinction is made between inside and outside employees, but there are no clear lines delineating which lunch break cases will be established and which ones disallowed.

Some relevant facts in such cases involve where the employer was at the time of the injury, whether or not he or she was being paid for the lunch or other break and whether or not the employer gained some sort of benefit from the meal break.

There are many cases involving motor vehicle accidents occurring on the way to or from a meal break. Once again compensability will be based on the specific facts and circumstances surrounding the particular accident.

This type of claim often requires extensive litigation.

May 7, 2012

The Social Security Presumption Bill

For New York State Workers' Compensation claimants this piece of pending legislation would help those compensation claimants who have already been approved for Social Security Disability benefits.

The pending bill would require the Workers' Compensation Board to find that a worker who has been approved for Social Security Disability benefits is therefore totally disabled under Workers' Compensation Law.

Currently, many if not most, of the Social Security Disability recipients who also get Workers' Compensation are receiving permanent partial disability benefits but not total disability payments.

Adoption of this bill would guarantee a fair result to those compensation claimants whose injuries are severe enough to qualify them for Social Security Disability. It would also serve to drastically reduce the amount of unnecessary litigation before the Workers' Compensation Board to address issues including labor market attachment and loss of wage earning capacity.

May 4, 2012

Special Damages In Your Personal Injury Action

Many people have heard the term "special damages" or "specials" as it pertains to an injury lawsuit.

Special damages are usually medical bills for treatment, lost wages, or out of pocket expenses that can be accurately calculated.

Special damages differ from general damages for that very reason; an exact number can be calculated from the proof to show what you have lost. General damages usual refer to pain and suffering which is an entirely subjective assessment.

If you have been involved with a serious personal injury accident and would like to learn more about your rights, we would be happy to discuss your claim with you.

May 2, 2012

Have Your Received Letters From The New York State Workers' Compensation Board?

If you have correspondence from the New York State Workers' Compensation Board regarding your case it should not be disregarded. The Workers' Compensation Board has made it a policy to handle many matters by mail, without hearings. Do not assume that it is not important because they have not asked you to go to a hearing.

One of the more common letters, which is extremely important, is entitled "Notice Regarding Possible Award For Permanent Injury." These notices often include legal information directing a party to produce evidence within a certain timeframe.

Additionally, failing to respond properly could mean that you have waived your opportunity to make certain claims. The Workers' Compensation Board has also directed the depositions transcripts be produced should cross-examination desired.

If you have received correspondence from the Workers' Compensation Board and do not know what it means to your case, feel free to contact our firm for an explanation or advice.

May 1, 2012

Retiring Because Of A Disability

If you are disabled due to a New York State Workers' Compensation injury and are forced to retire you should be sure to document that reason in your retirement papers to specifically indicate that you are taking your retirement because of the work related injury.

It is even more helpful if you can secure a statement from your physician recommending that you retire because of your injury and resulting restrictions/limitations.

Taking these steps can help avoid future litigation in your claim.

April 30, 2012

I Missed My New York State Workers' Compensation Board Hearing, What Happens Next?

If you have missed your New York State Workers' Compensation Board hearing, there is a good chance that you would be able to have it rescheduled. In most instances, the presiding Law Judge will close your file for what is known as "failure to prosecute." However, your claim can be easily re-opened if proper RFA-1 form is filed with supporting evidence or documentation.

If you have missed numerous hearings, it may be more difficult to have your claim re-opened.

If you have a Workers' Compensation hearing that has been scheduled and you are not exactly sure why, you should find out. You may be entitled to benefits that you are unaware of.

April 27, 2012

How Long Will My Workers' Compensation Hearing Take?

New York State Workers' Compensation hearings generally do not take a long time. Unless a hearing is scheduled for extensive testimony or complicated issues, a hearing will generally take between five and twenty minutes.

Unfortunately, hearings are rarely called at the scheduled time. It is not uncommon for claimant's to wait for over an hour and sometimes longer for their case to be called.

If you have an upcoming Workers' Compensation hearing and do not understands what is happening with your case, we would be happy to review it with you.

April 26, 2012

What Will Happen At My Workers' Compensation Hearing?

The list of possible legal issues that may be addressed at a New York State Workers' Compensation hearing are far too long to list here. However, your notice of hearing should provide an idea as to why the hearing has been scheduled.

In order to accurately determine what can be expected at your hearing, a case evaluation should be performed. Some hearings involve sworn testimony of the claimant, lay witnesses, or even doctors. Often times, the claimant is expected to provide evidence in support of his or her claim at the time of the hearing.

If your case has been scheduled for a hearing and you do not know what to expect or how to prepare, we may be able to help. Feel free to contact us for a free consultation.

April 25, 2012

New York's Medical Treatment Guidelines: A Failed Experiment

According to the New York Workers' Compensation Alliance Law Blog, it is estimated that the implications of the Workers' Compensation Board Medical Treatment Guidelines, that have been intacked for over a year, costs employer's $60 million per year. The blog goes on to state that payment for the requested medical procedure, which are adjudicated under the Treatment Guidelines, would be cheaper than the costs of implementing the Guidelines and would result in a high percentage of denials for treatment.

From a practitioner's standpoint, the entire process is absurd. It emphasizes form over substance and is clearly designed with the main purpose being to save employers money. The end result is a wholesale denial of necessary medical care for the injured worker.

Given the current financial outlook in New York State, it's no wonder that the Legislature has chosen to side for cutting costs to employers at the expense of severely diminishing the injured workers' right to secure necessary medical treatment. Hopefully, as time goes on, the hidden agenda will be exposed and the Guidelines repealed. For the time being, injured workers can expect to continue to receive denials from the Workers' Compensation Board for medical care that their own doctors feels is necessary and appropriate.

April 24, 2012

What Is A Functional Capacity Evaluation?

A functional capacity evaluation is a physical assessment of one's abilities to perform certain specific tasks.

A functional capacity evaluation, also known as an FCE, is designed to give doctors, lawyers, and Judges a quantitative measurement of a person's ability to do physical activities. In turn, this information has a direct a bearing on one's ability to return to work within limitations or restrictions.

FCEs are often ordered when a doctor feels that a patient may be ready to return to some sort of employment following an injury. They are utilized in Workers' Compensation cases, personal injury lawsuits, and can also be helpful in Social Security Disability claims.

FCEs are usually completed by occupational therapists. Insurance companies or governmental agencies may be responsible for payment to secure the FCE.