The most common complaint I receive from my New York Workers’ Compensation clients is that they are improperly examined by IME’s.
What is an IME?
An IME or “Independent Medical Examiner” is a doctor hired by the insurance company for the purpose of checking on, and limiting, the injured worker’s claim against the insurance company.
IME’s are certainly NOT “independent”. The word “independent” is a complete misnomer.
Here are some common things I hear from my clients after seeing an IME:
- He didn’t touch me.
- He examined me for only three minutes.
- She asked me inappropriate questions.
- He didn’t have my records.
- She didn’t know anything about my case.
- He was nasty and rude.
- His office was a mess and he seemed unprofessional.
- His medical report contains many, many errors.
Recently, a client called to tell me that she had been to an IME examination for her Workers’ Comp case involving a shoulder injury. The doctor had her sit down in a chair and asked her a few questions. He then asked her to raise her arms above her head and then asked her to put her arms behind her head as far as they would go.
Those two requests comprised his ENTIRE EXAM.
When the medical report came in from this doctor, he stated in his report that the injured worker has “zero permanent injury.”
Meanwhile, my client says she still has trouble raising her injured arm all the way.
The IME never touched my client.
This stuff happens all the time. The best way for injured workers to protect themselves is to videotape their IME exams or to bring a witness.
In this case I intend to have my client TESTIFY regarding the fact that the IME never actually examined her.
This kind of bogus IME exam, unfortunately, happens all the time. Having an experienced Workers’ Comp attorney on your side can help injured workers fight the injustices that go on way too often, in the Workers’ Comp system.
Did you know?
Applying for and receiving Social Security Disability Benefits, ( when one is UNDER retirement age and unable to work for at least 12 months,) bestows perks from the Government that many people don’t know about. These include (if you win):
*Wage Freeze: If there is a period of time you are not paying into your Social Security account due to being disabled, Social Security IGNORES this and computes your benefits as if you had been working! *Medicare: Two years after being approved for Disability Benefits, disabled workers may elect to receive Medicare coverage, regardless of age. *Children: When you qualify for Social Security disability benefits, your children may also qualify to receive benefits on your record. Your eligible child can be your biological child, adopted child or stepchild. A dependent grandchild may also qualify. To receive benefits, the child must be unmarried and be:
- under age 18; or
- 18-19 years old and a full-time student (no higher than grade 12); or
- 18 or older and have a disability that started before age 22.
Within your family, each qualified child may receive a monthly payment up to one-half of your full disability amount.
Bet you didn’t know these things… Feel free to call my office with any questions about Social Security Disability or NY Workers’ Compensation.
There’s an insurance industry radio ad campaign currently running, containing the following warning: Don’t commit Workers’ Comp insurance fraud or you’ll end up in jail and you will shame your family. It’s clearly aimed at injured workers. I get it.
What the public generally does NOT see is the other side of the coin…when insurance companies overstep their bounds and infringe on injured workers’ rights (happens all the time—sometimes with bad results, especially when injured workers are unrepresented .)
This happened to my client and me YESTERDAY:
My client, a nurse’s aide, was receiving weekly Workers’ Comp checks for a severe back injury (she now needs surgery for it) that she incurred at work. At the last hearing, the insurance company attorney for the employer accused my client of fraud and told the Judge they were stopping her benefits because they have a private eye who followed her and videotaped her doing something bad (presumably, working while collecting comp checks.) They were ordered to produce the investigator and his evidence. My client flatly denied committing fraud. A mild-mannered woman, she has been beside herself with stress because of this fraud allegation. She could not understand it. Luckily, in this country, you get to face your accuser in court, face-to-face. At the next hearing (yesterday) , I made a simple request: call in both my client and the investigator into the courtroom and let the investigator look at my client, face-to-face. When they were called in, the Judge asked the private eye: “Is this the woman you have been following?” The investigator turned red. ” No, Your Honor, it isn’t, “we must have been following the wrong person.”
You simply can’t make this stuff up. I got my client’s benefits reinstated (she was crying with relief, she could not understand what she had done wrong) but unfortunately there is no penalty against an insurance company for such shoddy work and behavior……………
Call us if you have questions about Workers’ Comp or Social Security Disability benefits!
While everyone knows that an accident that happens to an employee inside a workplace or work building is clearly a Workers’ Comp case in New York, what about accidents that occur OUTSIDE the office building or workplace?
This winter was particularly cold and there is a lot of ice everywhere. It’s likely that employees somewhere have sustained slip and fall injuries in an employee-designated parking lot. The law IS CLEAR: injuries sustained in a parking lot designated for use by employees ARE COVERED BY WORKERS’ COMPENSATION. This is true even if the employee has not yet clocked in or has already clocked out!
The reason behind this is that if an employer designates an area for employees to park in, such a place becomes “part of” the work premises. Based on the same logic, accidents that happen on the way from the parking lot into the main workplace or accidents that happen on the way from the main workplace into the employee parking lot are ALSO covered, just as if they had taken place inside the main workplace location!
Did you know that some nursing homes have bariatric wards where Certified Nurse’s Aides (CNA’s) must care for obese patients? What happens when, due to staffing issues, the direct caregivers get little or no co-worker assistance with these patients and must care for these extra-heavy patients alone?? And must at all times ensure that their patients are safe?
Worker injuries can and do happen. Serious injuries. (Nursing home patients sometimes get hurt too, unfortunately, but they can sue. In cases where there is no one responsible for an injury except for the employer, injured workers cannot sue.)
My client Jean, a CNA in New York, tried to catch her 300 pound patient who was falling. Jean injured her neck and her back in that accident. As time went on she suffered “progressive quadriparesis” (loss of function of her arms and legs,) slowly lost bladder control and could not walk. She moved to Connecticut to be cared for by siblings and one day could no longer function at all. She went to a Connecticut hospital, was admitted as an emergency, and had an 8 hour emergency spinal surgery that showed severe spinal damage.
Truth #1: Jean has no right to sue anyone. Workers’ Comp protects the employer nursing home from being sued. She can only receive, at most, two-thirds of her CNA salary while she is out of work. Her only legal remedy? Workers’ Compensation.
Truth #2: The nursing home’s (employer’s) insurance company is not doing the right thing by Jean. It is refusing to pay for the surgery, for her recovery, or anything else related to the surgery, because Jean, it says, has not yet proven that the surgery was due to the work accident. (We are waiting for a hearing to argue this case before the Judge.)
Observation #1: Many different professions lay their bodies on the line day to day just performing their work (yes, our cops, firemen and emergency workers do, and should be thanked and thanked again. But other jobs—like those occupations that provide direct care for the elderly—can be quite dangerous too. Just ask bariatric direct care givers.)
If you or someone you know has been injured at work or can no longer work due to illness or injury, give us a call. Consultations are free. We handle BOTH Workers’ Comp and Social Security Disability cases.
“We Work for You When You Can’t Work”
In NY, an injured worker is entitled to weekly payments equalling two-thirds (2/3) of their salary while they are out of work. The figure used for their pre-injury salary is known as their “average weekly wage” (“AWW”). How does the Workers’ Compensation Board determine their AWW? Well, the answer is a bit complicated.
In determining AWW, the Workers’ Compensation Board takes into consideration what the injured employee earned on average for the 52 weeks preceding the date of accident. There are numerous ways of calculating that average, but the most common way is by dividing the total amount by 52 to get the AWW. Generally speaking, the insurance carrier will reach out to the injured employee’s employer and obtain a payroll documenting every paycheck that the injured employee received for the 52 weeks preceding the date of accident.
What if someone had more than one job at the time of the accident? Well it is important to note that if an injured employee had multiple jobs at the time of the accident, all wages from all jobs should be included when calculating the AWW. This is known as “concurrent employment.” However, the obligation to provide proof of concurrent employment is on the claimant/injured employee. There are several ways to prove concurrent employment, however, it generally requires a hearing before a Judge.
Also, problems sometimes come up in determining the correct AWW in a case where the injured employee hasn’t filed proper tax returns and/or works off the books. As always, if you ever have any questions or would like our help representing you, consultations are always free and we work off of a contingency fee. We don’t get paid unless you get paid!
I’m a sports nut- like many people I know. I follow all four major pro sports and have read literally hundreds of sports books and publications in my lifetime. I’ve been to and watched countless games. What many people don’t know, interestingly, is that almost all pro sports injuries in the U.S. are covered by Workers’ Compensation.
In February this article appeared in the L.A. Times:
Last fall, the National Football League scored a huge victory in California, helping push through a new law barring most professional athletes from filing workers’ compensation claims in (that particular) state.
But that win has come at a cost.
Publicity from a high-profile battle over the legislation prompted players from around the country to file more than 1,000 injury claims just prior to a September deadline – a huge influx that could cost the nation’s top professional sports leagues hundreds of millions of dollars to resolve.
In the first two weeks of September, current and retired players filed 569 claims against NFL franchises, 283 claims against Major League Baseball clubs, 113 against National Hockey League teams and 79 against NBA squads, a Los Angeles Times analysis of state workers’ compensation data found.
Nearly 70% of the filings include allegations of head or brain injuries caused by repetitive trauma. Most of these athletes appeared to have never played for a California team; they filed claims based on repetitive injuries they say were sustained in part during road games played in the state. It is those claims that are now barred under the new California law.
Among the athletes rushing to beat the deadline were sports legends such as Miami Dolphins quarterback Dan Marino, Baltimore Orioles pitcher Jim Palmer and Houston Rockets center Hakeem Olajuwon, as well as many lesser-known retirees, some suffering serious physical impairment. A number of active players, including San Francisco 49ers standouts Michael Crabtree and Frank Gore, also filed claims.
My understanding of what happened in California is that every NFL injured player- whether they played for a California-based team or not- used to file for comp in California because that state had the most favorable comp law. (Every state has its own separate Workers’ Comp law.) In California, even visiting players could file, and California allowed claims for “cumulative” injuries—successive blows led to concussions that added up to brain damage. However, after the law changed, players weren’t allowed to do this unless they played for a California team (like the Lakers or Sharks, for instance.)
So what’s my point here? My point is, that professional athletes who are suffering these head injuries, with attendant brain damage, or career-ending injuries, actually do have Workers’ Compensation as one way of recovering lost wages and for obtaining medical treatment for their injuries. But professional athletes are subject to what the law in their particular state says about cumulative injuries.
New York allows claims for cumulative trauma. I have both a love of sports and a career-long enthusiasm for my law practice of Workers’ Comp—so maybe I can combine the two! I would be happy to help any injured pro player.
So, to any and all injured New York Jets, Giants, Mets, Rangers, Knicks, Nets, Yankees and Islanders : feel free give my law firm a call!
Workers’ Comp in New York State is constantly changing. Recently, I was asked by union officials to give a second legal opinion about a situation where a union member (not my client) had been accused of Workers’ Comp (WC) fraud. Lately, insurance companies are raising such fraud charges against workers more and more often, regarding the issue known as “PAST MEDICAL HISTORY”, and that is what happened in the case I was asked to review.
When individuals are injured at work in New York State, those workers often assume that someone is looking out for their best interests and that somehow the system will automatically do the following: a) pay all of their work injury medical bills without a problem; b) pay them without a problem; and c) inform them of their rights.
However, this is what I find ACTUALLY happens after a work-related accident: the insurance company is concerned only with the well-being of the insurance company, not the injured worker. It looks for ways to NOT pay the worker.
Although it is perfectly reasonable for WC insurance companies to try to weed out fraud, it appears to me that these companies spend almost all of their time doing this type of anti-fraud investigation at the expense of doing other things to help workers.
Workers’ Comp Insurance companies ALWAYS —ALWAYS—-DO THE FOLLOWING AS A MAIN FOCUS OF “DEFENDING THE CLAIM” soon after anyone is injured on the job:
1. Review the claimant’s written statements and claim forms after the work injury word by word to determine if the worker ADMITTED, OR DENIED, EVER HAVING ANY PRIOR INJURIES—-EVER!
2. Review the medical reports from claimant’s own treating doctors plus the questionnaire given by the insurance company doctor to determine if the worker ADMITTED OR DENIED EVER HAVING ANY PRIOR INJURIES—-EVER .
3. If the insurance company determines that the injured worker omitted any mention of ANY prior injury that he or she actually had, (and believe me, they check this, without fail) FRAUD is often immediately charged against that worker. Yes- almost every omission of a prior injury is considered fraudulent by insurance companies even though the law says that this is not the standard by which to judge. (The law actually only says that forgetting about revealing a prior injury is a fraud if the omission is “knowing” and “material.”)
4. If found guilty, a worker can be charged with a felony. However, the more common penalty is permanent loss of Workers’ Comp money (but not medical) benefits in that particular case.
The problem here is that injured workers can be careless without being fraudulent. I have confronted my own clients when thay omit mentioning prior injuries to the insurance company or even to their own doctor. I have heard the following excuses, none of which are valid, among others:
1. I didn’t understand that the form I filled out was asking about previous injuries I had that were not the same as my current injury.
2. I thought they knew about the previous injuries because the previous injuries were for the same employer so I didn’t mention them.
3. I didn’t think mentioning my prior injuries was important.
ALL of my clients receive a complete explanation of this issue verbally and in writing when they retain us AND sign a paper that says that they understand it. I do not allow my clients to go forward without an education that basically says: NEVER EVER OMIT MENTIONING ANY PRIOR INJURIES YOU EVER HAD TO ANYONE IN THE WORKERS’ COMP SYSTEM!!!
If claimants would simply follow this rule, and be forthright about all prior injuries , discovering fraud would become less of a main focus of the WC insurance companies. Often, I find, clients APPEAR to be fraudulent when their omissions are simply the result of carelessness. But the insurance companies always assume the worst about injured workers.
Labor Day just passed, and for most of us it’s back to our day-to-day work lives. Some, however, have given their lives while performing their jobs. Rather than just celebration, Labor Day should bring us reflection, as well, and commemoration, for ALL workers, including those who have died in the course of their labor.
Currently, the top news stories are filled with stories of bravery among those who work and risk on-the-job illnesses and injuries.
The doctors who go abroad and face the Ebola virus are doing wonderful but dangerous work and should be applauded.
The two journalists who died recently at the hands of ISIS were of course the two most recent, horrific examples of people who died doing their jobs. In just one week, we will remember those who perished in 9/11. So terrorism is a real, continuing threat to the working world, unfortunately.
However, the "every day" type of accidents at work that take people’s lives are just as horrendous. It is my opinion that not enough is done in this country to ensure worker safety and to prevent accidents in the workplace.
Our military, police, fire and emergency workers risk their lives to protect us every day. They too must be honored.
How about the poor restaurant manager who lost his life at the Legal Sea Foods restaurant in Suffolk County this past February from carbon monoxide from a faulty water heater? Should he not be remembered too? Or all those construction workers who die on the job and get only a few paragraphs in the newspaper?
My point is, Labor Day is fun and all, but it should also cause us to take pause and celebrate, and remember, and commemorate, labor.
In a previous essay I wrote about Workers’ Compensation (WC) permanent injury awards:
“Permanent injuries to joints of the body, vision, and hearing, qualify for “schedule loss of use” awards regardless of whether a person is working or not“, I explained.
As a follow up to that, I can tell you that it has become very difficult, in the world of Workers’ Comp in New York, to receive not a permanent injury award, but to receive weekly benefits while out of work!
This sounds counterintuitive: Isn’t Workers’ Compensation primarily designed to pay people while they are out of work? Well, in the current climate, it’s not so easy to obtain a proper weekly payment while out on comp (called a “lost time award”.)
First, understand that eventually it becomes a choice, because ultimately you do not receive both types of awards. The WC law says you can’t get a permanent injury award and ADD it to your lost time award..at the end of the case you have to choose one or the other!!!
For an experienced Workers’ Comp lawyer in New York, then, this becomes an analysis of which one is better for the client.
Here’s a comparison of the two types of awards:
(Note: Permanent injury awards are called “SLU’s”)
Lost time: Paid only if injured worker (IW) is under medical treatment.
SLU: Paid only if the IW is finished with treatment.
Lost time: Paid most often at a lower than maximum rate.
SLU: Paid at the maximum rate.
Lost time: Injured worker can be required to look for work (job search) to qualify.
SLU: No requirement to look for work.
Lost time: Paid in bi-weekly installments.
SLU: Paid in one lump sum.
SLU: Paid one year from date of accident
Lost time: Paid after one week of being out of work.
As you can see, a SLU award has huge advantages over lost time awards. The problem is, when someone has suddenly stopped working and is in need of income to survive, it is unimportant to that person that one year later, they may receive a lump sum that will cover all of their lost wages. That person needs income NOW.
That is why we as WC attorneys still try as hard as we can to get our clients “lost time bi-weekly checks” while they are out. Later on, we worry about whether they qualify for an SLU.
More complicated than you thought? That’s why an experienced WC attorney is essential in almost every WC case.