Workers´ Compensation FAQ’s
What is workers´ compensation?
Workers’ compensation insurance was instituted because employers could be held liable for workplace injuries if they didn’t possess such insurance. Consequently, when the law prohibited suing employers in New York State, an alternative method was necessary to support those injured on the job. This system operates similarly to no-fault insurance; employees file a claim without pursuing legal action against anyone.
Under this policy, the workplace is covered, and regardless of fault, injuries sustained on the job are addressed. In contrast to other lawsuits where fault is crucial, workers’ compensation focuses on the fact that the injury occurred at work. When a claim is filed, individuals can receive treatment through Workers Comp, without any associated co-pays.
Depending on the severity of the injury, the injured party may qualify for a lump sum award or extended benefits under the Workers Comp system.
Who is exempt from workers´ compensation insurance?
There are various types of workers’ compensation, each tailored to specific situations. For instance, New York City police officers receive line-of-duty injury pay, distinct from traditional workers’ compensation. Similarly, New York City school teachers and employees of the Long Island Railroad fall under separate workers’ comp systems exclusive to their respective entities.
Beyond these exceptions, individuals exempt from the standard New York State workers’ compensation include independent contractors. It’s essential to note that these exemptions create distinct frameworks for compensation within certain sectors.
How to get workers´ compensation insurance?
If you’re an employer seeking workers’ compensation coverage, you can obtain insurance from various companies we regularly work with. As for employees, here’s how workers’ compensation functions: in the event of a workplace injury, you must notify your employer within 30 days of the concrete accident. In such cases, you then have two years to file the claim.
Regardless of when you inform your employer, whether immediately or a year or two later, you can still file the claim as long as you meet the criteria of providing notice, filing the claim, and presenting medical evidence of a causally related injury. These three components, collectively known as ANCR (Accident, Notice, and Causal Relation), are essential for a workers’ compensation claim.
To initiate the workers’ compensation claim process, you typically file a C-3 form, sending it via fax, email, or other methods, to the workers’ compensation board. Within one to two weeks of filing, you’ll receive a notice of case assembly, offering details about your claim, the insurance company covering your employer, and allowing you to seek treatment at a medical facility using that information.
Is it more advantageous for patients to be unemployed in order to potentially secure a more favorable settlement, or does being employed contribute to a better outcome in prior settlements?
In my opinion, for injuries leading to classification, it’s more advantageous when you’re out of work. Suppose you injure your back and return to work; your claim essentially becomes focused on medical treatment only since back injuries get classified. It’s crucial to note that the weeks paid at the classification rate are contingent on your unemployment. If you resume work, the payments cease, except if you can demonstrate reduced earnings due to your injury, allowing you to receive two-thirds of the difference in your pre-injury earnings.
In terms of a schedule loss of use, I always advise clients that if they can return to work or secure a sedentary position, they not only regain their actual pay, but, for individuals over the cap, there’s an additional financial benefit. In cases like shoulder injuries, if your job accommodates your capabilities and supports you during shoulder surgery, it’s beneficial to continue working, undergo surgery, and attempt an early return to work, preserving the back end of the case.
Preserving the back end is crucial because some individuals go out of work for an extended period, receive a modest percentage for their injury, and the attorney requests 15 percent of that, resulting in minimal financial gain at the end of the case. Extremity injuries offer potential for extra compensation through the Protracted Healing Period (PHP). For instance, if you’re out of work due to a shoulder injury, get a 40% loss of use, and meet the criteria specified on the Protracted Healing Period Chart, you can receive additional weeks of benefits on top of your settlement.
To sum up, there’s no better news for a workers’ comp attorney than hearing about an extremity injury where the individual is back to work, even if surgery is involved. On the contrary, prolonged unemployment in cases like finger injuries with relatively lower values can significantly diminish the overall compensation.
How does the schedule loss of use percentage play into the money?
Okay, so regarding the schedule of loss of use percentage, if you check online, there’s a chart that outlines specific durations for various conditions. For instance, let’s consider a scenario where there’s a 10 percent loss of use of your shoulder. An arm is valued at 312 weeks, so a 10 percent loss of use of the shoulder translates to 31.2 weeks.
Then, they take these 31.2 weeks, multiply them by your maximum rate or average weekly wage, subtract any prior payments received while you were out of work from that total, and the resulting amount is what attorneys typically request a 15 percent fee on. In a specific case where the 31.2 weeks entitle someone to $50,000, if they’ve already received $20,000 in prior payments, the net amount for the claimant would be $30,000, with the attorney’s fee being $4,500, leaving the claimant with a net of $25,500.
Are there any online resources for patients to look at if they want to do things on their own, or even if they have an attorney to See whether the attorney is doing the right thing and to educate themselves?
While Google and law firm websites offer informational resources, navigating the Workers Compensation Board website and materials provided by claimants’ attorneys can be beneficial. Many law firms share valuable insights online. However, relying solely on general information or anecdotal stories might not be sufficient.
Importance of Legal Knowledge:
Understanding the law and having insights into medical aspects, especially in the tight-knit workers’ compensation industry, is crucial. The claimant’s lack of full representation might lead to vulnerabilities. Even if one manages to handle the process independently, insurance companies are likely to exploit the knowledge gap, knowing the claimant isn’t fully informed.
Can an injured patient do everything by themselves?
While it’s theoretically possible for injured patients to handle everything independently, there are practical challenges during the injury period. Managing medical records, keeping up with adjusters, handling hearings, and dealing with insurance companies require considerable effort. It’s important to note that the workers’ compensation legal community is relatively small, fostering cooperation among attorneys.
Challenges of Pro Se Representation:
In the scenario of being a pro se claimant, where your doctor asserts 100 percent disability and the opposing doctor claims 50 percent, the question arises: Will you manage subpoenaing doctors for testimony or drafting medical record subpoenas independently? While theoretically manageable, the complexity and nuances often necessitate legal expertise.
The Value of Legal Representation:
Engaging an attorney is emphasized because they can secure more compensation despite the fee. Insurance companies may not respect pro se claimants, potentially leading to exploitation. In situations where the insurance offers a lower percentage than what the doctor suggests, a skilled attorney can push for a higher percentage through expert testimony. This incremental increase ultimately benefits the claimant, covering legal fees and putting more money in their pocket.
Cost vs. Benefit Analysis:
Regardless of the cost of legal services, the assurance is given that the attorney will secure more compensation than what an individual might obtain independently. The value extends beyond a simple 15 percent, creating a compounded impact that significantly benefits the claimant.
How does the worker’s compensation attorney make money?
Formerly, representing a client involved a standard practice where attorneys received 15 percent of the money obtained for the claimant, subject to a fee application that required proving the amount of work done. However, recent legal changes, possibly under workers’ comp law section 23, have introduced a statutory 15 percent of any awarded money.
In this revised scenario, if, for instance, I secure a client $1,000 at a hearing, my fee would be $150, paid separately by the insurance company. Notably, clients never directly pay this fee, and if the client receives no money, I do not get paid. Additionally, when hearings involve a continuing rate, it’s common practice to request one-third of that rate in addition to the 15 percent. So, for a $300 continuing rate, the total fee would be $250, combining the 15 percent and one-third of the continuing rate.
In cases involving classification or permanent partial disability, a fee is applied at the end of the case. This fee comprises 15 percent of any back money obtained and 15 times the classification rate. Classification occurs when there’s a permanent partial disability in areas like the extremities, neck, back, head, or psychological issues. An example scenario involves a severe back injury, where calculation of the classification rate is necessary. The Loss of Wage Earning Capacity (LWEC) is determined by a judge based on the injury, previous jobs, language skills, and workforce reentry abilities.
Consider a case where a person has a 50% LWEC, a maximum rate of $1,000, and is entitled to $500. The attorney, in this case, takes a fee of 15 times that rate, amounting to $7,500. However, the practicality of receiving this fee is addressed. Since there’s no lump sum settlement, the attorney requests a weekly release of $25 to $50 from the insurance company, which is deducted from the claimant’s weekly benefits. Once the attorney’s fee is exhausted, the claimant resumes receiving the classification rate.
In the event that the person was previously deemed 25 percent disabled in their case, the fee structure would alter, necessitating further consideration.
If the rate was tentative and never ruled partial by a judge, there’s an opportunity to try and increase prior periods, especially if the claimant gets classified as 50%. In such cases, a 15 percent fee would be taken on the additional amounts. Leveraging the Disability Advance Check (DAC) money can also be explored to secure part of the fee upfront.
The law, possibly under section 15-3W, introduces a provision where after 130 weeks of benefits, the carrier can take prior credit for classification weeks. The exact details, whether it’s from the date of the accident or the last surgery, can be found in the law. Carriers often use this law, especially when claimants have been out of work for several years without classification.
Who pays for the depositions?
Depositions are funded by the insurance company. Following the testimony, when we proceed to the hearing, the usual cost for a Medical Doctor (MD) is $450, and for a Chiropractor (CHIRO) or a Physician Assistant (PA), it is around $350. The judge then mandates the insurance company to make these payments. Neither I nor the claimant bears the expense for treatment justification.
Payment Responsibility:
This cost is solely the responsibility of the insurance company and is unrelated to the case’s details, settlements, or any financial considerations. It is simply an additional fee that they are obligated to cover.
Who decide whether to depose a doctor or not?
In cases with conflicting medical opinions, the process involves requesting cross-examination of the doctors involved. As a claimant’s attorney, I would request the cross-examination of the insurance company’s doctor, and vice versa. During the hearing, the judge would inquire, for instance, Mr. Rotman, which doctor would you like to depose? In response, I might choose the Independent Medical Examiner (IME) doctor, Dr. Lager.
Conversely, the insurance company would express their preference, perhaps stating that they want Dr. Ari from another pain management clinic. It’s important to note that defense firms often seek depositions for every available doctor, considering that they generate revenue from the deposition process. This practice persists even if a particular doctor has only treated the individual once.
When I’m out of work, how much do I get paid?
When you sustain an injury on the job and are deemed 100 percent disabled by a doctor, you become eligible for two-thirds of your average weekly wage. The calculation involves taking your pay stubs for a year before the accident, averaging them, resulting in what’s known as your average weekly wage.
For those who haven’t worked a full year at the job, a similar worker payroll may be used, comparing earnings with someone in a similar position who has worked for a year. While you’re out of work, you receive two-thirds of your average weekly wage, subject to a cap, which is determined by New York State workers’ compensation rates that increase annually on July 1st.
The cap is influenced by the New York State industry labor standard average weekly wage. For example, the current rate is approximately $11.45, up from previous years, adjusting based on inflation and industry standards. The cap limits the amount you receive, so if you make $5,000 a week, you’ll only receive up to the cap, while someone making $1,500 a week would be just under the cap.
Being 100 percent disabled is a prerequisite for receiving the maximum rate. If you go out of work before a hearing, the insurance company makes voluntary payments, initiated without specific direction. If you’ve been out of work for a few months, the insurance company may send you to an independent medical examiner, working for them, who provides a disability percentage or degree of disability. Your payments are then adjusted based on this percentage.
Your responsibility is to either have your lawyer request a hearing or request one yourself if you don’t have an attorney, aiming to restore your rate based on your doctor’s testimony. If no agreement is reached, a hearing is set, during which doctors testify, and the judge makes a ruling. Once a judge directs the insurance company to pay a specific amount, even if their subsequent independent medical examiner claims 0 percent disability, the payments can’t be stopped without another hearing and a change in the judge’s direction.
Regarding different disability percentages (25 percent, 50 percent, 75 percent), your pay changes directly in proportion to the percentage. For instance, if your max rate is $1,000 per week and the insurance company’s doctor determines you’re 50 percent disabled, your payments are halved. The judge makes a decision based on testimony from both the treating doctor and the insurance company’s doctor, without being bound to either opinion.
Under previous laws, a judge was required to choose between the opinions of doctors, whether it was 100 percent or 50 percent disability. Generally, 100 percent disability implies an inability to work in any line of work, whereas degree of disability introduces some gray areas. If, for example, the judge determines both doctors aren’t credible and you’re 75 percent disabled, it leads to a shift in classification.
When ruled 75 percent disabled by a judge, the status changes from temporary total disability, which is associated with a 100 percent disability rating, to a partial rate. Once deemed not totally disabled, the law mandates you to seek work within your degree of disability to continue receiving checks. The carrier may request updates every 60 days, involving forms on the Workers Compensation Board website, participation in vocational rehab, and other necessary steps.
The determination of medical disability is made by an administrative law judge, not a medical director’s office handling PAR requests. Despite not being a conventional judge, these administrative law judges thoroughly examine medical records and other pertinent information. It’s advisable for individuals to agree to avoid being deemed partial and compelled to actively seek work.
While job retention may exempt one from actively searching for employment, many individuals, having been out of work for an extended period, often face job loss.
What does workers compensations insurance cover?
Workers’ compensation insurance provides coverage for injuries that occur on the job or are closely related to serving your employer. There are various types of claims that fall under workers’ compensation, including:
- Accident Claims: These involve injuries resulting from specific on-the-job accidents.
- Occupational Disease Claims: These cover injuries arising from work activities, such as carpal tunnel from repetitive motion or exposure-related issues like lung problems.
- Psychological Injuries: This category includes conditions like PTSD or adjustment disorders that result from work-related experiences.
- Late-Onset Injuries: Some injuries may manifest well after starting a job but are still connected to work activities.
For certain claims, like a loss of hearing claim, there may be specific waiting periods and deadlines. For example, a loss of hearing claim typically requires a 90-day wait after the last exposure, with a subsequent two or three years to file the claim. In essence, workers’ compensation can be categorized into bodily injuries, psychological injuries, and conditions arising from exposure or late-onset issues. The key distinction lies in whether the injury is the result of a specific accident or an occupational disease that develops over time due to work activities.
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