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!
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.
It’s a standard question: How long will it take for me to be approved for Social Security Disability Benefits? (SSDB)
As with so many other things, the answer is: it varies. In truth, it can take from one month to up to two years or more!
Let’s look at this a little closer. First of all, not every one’s disability case is the same. Some individuals will present medical impairments on their disability applications that will immediately stand out as obvious approvals (though this happens in only a small percentage of cases). Examples of clear cut cases include ALS, advanced cancer, severe kidney disease, blindness, AIDs, and double amputations.
Social Security has a list of “225 compassionate allowance” diagnoses. The Compassionate Allowances program expedites disability decisions for Americans with the most serious disabilities to ensure that they receive their benefit decisions within days instead of months or years.
But what about the most common disorders—back injuries, depression, heart attack, etc? How long does the average case take?
Nationally, it takes an average of 120 days for a Social Security disability applicant to receive an answer from the Social Security Administration on his or her initial application. 35% are awarded benefits at this level.
In 2013, here was how many days it took to process an appeal from an initial denial (remember, at that point you’ve already waited 4 months) and have a hearing in front of a Judge on an appeal (in NY, this is the second step in the process) in some local regions:
Brooklyn: 478 days
Manhattan: 320 days
Bronx: 359 days
Queens: 363 days
Long Island (Jericho) : 292 days
just to get a hearing!!!!
Source: NOSSCR Social Security Vol. 5, No. 5, May 2013
The waiting time for the Jericho (Long Island) Hearing Office, by the way, in 2013 was 8th fastest among 165 hearing offices in the country!
So to recap- if you file an application for benefits and you live in Long Island, it takes about 4 months to get a decision, and if you are denied, another 10 months to get a hearing. (And then a couple of months to get the actual decision from the Judge.)
And that’s comparatvely quick. In St. Louis, Mo., the worst hearing office in the country in terms of time to wait for a hearing, the wait to get a hearing in 2013 averaged 547 days!!!
And let’s not forget that since almost all SSDB applicants are not working, that’s an awfully long time to wait for income.
The Workers’ Compensation Board’s recent and ongoing “BPR Initiative” has asked injured workers several survey questions. Here is one:
Question 7 asks “Who told you what to do to receive your benefits? You may choose more than one answer”.
Out of 5,623 responses, 3,579 (63.65%) responded Attorney, 1,178 (20.95%) responded Workers’ Compensation Board, 204 (3.63%) responded Insurance Agent, 1,316 (23.40%) responded Friend or Family Member, and 1,415 (25.16%) responded Employer.
My pet peeve of the week is New York employers who don’t assist their employees—and in fact obstruct them—from getting prompt, non-emergency medical care for injuries sustained at work- i.e., Workers’ Comp injuries.
According to Section 51 of the Workers’ Compensation Law, employers must post a notice of workers’ compensation coverage (Form C-105) in a “conspicuous” place in the workplace. EVERYONE HAS SEEN THIS FORM POSTED IN PLACES OF BUSINESS IN NEW YORK. FEW NOTICE IT OR READ IT. IT’S GOT A LOT OF FINE PRINT ON IT. USUALLY IT’S STAPLED TO A WALL NEAR THE EMPLOYEE TIME CLOCK. It tells employees the name and phone number of the workers’ comp insurance company, in the event of an on-the-job injury.
The Workers’ Compensation Board requires that the form include the name, address and phone number of the current insurer and the policy number of the employer. It must be posted in a conspicuous place in the employer’s place of business. Violations of this requirement can result in a fine of up to $250 per violation.
Here’s the problem: many employers don’t post it, or post an outdated one, and at the same time DON’T GIVE THEIR EMPLOYEES THIS IMPORTANT INFO ONCE AN EMPLOYEE IS INJURED ON THE JOB.
When an employee is injured on the job in New York State, they cannot obtain non-emergency medical treatment for their injuries UNLESS THEY KNOW THE IDENTITY OF THEIR EMPLOYER’S WORKERS’ COMPENSATION CARRIER. (Often, the insurance carrier changes year to year.) MANY EMPLOYERS HIDE OR WITHHOLD THIS INFORMATION FROM INJURED WORKERS, HOPING THE INJURED WORKER WILL GIVE UP AND NOT SEE A DOCTOR OR FILE A CLAIM FOR WORKERS’ COMPENSATION BENEFITS.
I have experienced many instances where I have instructed an injured employee to call their boss and obtain the employer’s workers’ comp insurance information. When they call, they often get the runaround are are totally ignored. Such employer behavior at the very least, delays treatment of workplace injuries. Why? Because private doctors simply won’t see a patient who was injured on the job without compensation insurance information. And often the required posting isn’t there at the workplace either. Obtaining this info directly from the Board, while possible, can be frustrating as well. Of course, many employers comply with the law. But many do not.
That’s why, if this has ever happened to you, please let me know. I am collecting data about employer witholding from employees, workers’ comp carrier information, and hope to compile such data to illustrate the problem to the powers- that- be at the Workers’ Compensation Board. After all, it’s a pet peeve of mine.
Workers’ Comp Myths: Let Me Explode a Few
Everyone knows what Workers’ Comp is, but unless you deal with it every day, you only know what you’ve read in the media or heard from others in casual talk. Here are some common Workers’ Comp myths, and my “myth busters.”
- Myth #1: If I file for Workers’ Comp, I’m suing my employer.
Mythbuster: Nope. Workers’ Comp is a benefit, not a lawsuit. Similarly, when you file for unemployment benefits, you’re not suing your employer either. Workers’ Comp actually protects employers from being sued directly.
- Myth #2: Everyone on Workers’ Comp is a fraud.
Mythbuster: Workers’ compensation fraud does happen, but is actually very uncommon, despite what you may have seen on TV or in newspapers. The vast majority of New York workers’ compensation claims are made by honest working people just like you, who are actually hurt at work.
- Myth #3: You cannot be fired if you are on Workers’ Compensation.
Mythbuster: The law actually says that you cannot be fired BECAUSE you are on Workers’ Comp. But if your employer has another, valid reason, such as that you need to be replaced so the company’s work can get done, usually you CAN be fired while out on comp.
- Myth #4: You must be out of work to file for Workers’ Comp.
Mythbuster: Not at all. The only requirements to file are that you are an employee who was injured while working, and that the job CAUSED the injury. Plenty of my comp clients never lost a day from work.
- Myth #5: My boss will process all of the forms for me if I get hurt at work.
Mythbuster: Unh-uh. Don’t depend on your employer to file all of the required forms for you. One required form, a “C-3” form, is neither filed by your employer or with your employer. YOU must file it. Yes, YOU, the injured worker, must file this with New York State yourself!
So, did you believe some of these common myths? Not to worry! Dan is here!
In New York, injured workers have the absolute right to choose their own medical provider for their work-related injury. The only requirement is that the doctor or other health provider accept Workers’ Comp (WC) insurance. I regularly advise injured workers who come into my office the following:
* Don’t treat with a doctor your employer send you to. More often than not, the employer’s doctor does not have your best interests in mind.
*Choose a doctor you are comfortable with. If you see a doctor who you feel isn’t helping you, switch! You can switch doctors as often as you like, under WC.
* DO NOT SEE YOUR FAMILY DOCTOR IF YOU ARE INJURED AT WORK. FAMILY OR GENERAL DOCTORS ARE RARELY IF EVER FAMILIAR WITH THE WC SYSTEM… SEEING YOUR FAMILY DOCTOR CAN SCREW UP YOUR CASE!
*Instead, see a specialist. These include: Orthopedists, Physical Medicine and Rehab doctors, Neurologists, Chiropractors, and/or Pain Management Doctors. You can see more than one specialist at the same time!
*Since Workers’ Comp pays the doctor 100% of their bills, for as long as the treatment is allowed, see the very best specialist you can. Hospital clinics and walk-in clinics are also no-no’s for TREATMENT of a work-related injury!
*The Law Office of Morrin & Sands PLLC can help injured workers find the right doctor for their injury and their case!