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!
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”
Do you know someone who has been injured or become seriously ill and has been unable to work? Which of these should they apply for?
Sick time pay —–Vacation pay——-Workers’ Comp——- Social Security Disability —–Short-term Disability—– Long -term Disability—— Unemployment
Imagine your Holidays with no income coming in. Seriously ill and injured people can face that plight every day.
Our law firm can help the injured and sick choose their best option and can fight to obtain for them a liveable income, when they are unable to fight for themselves. We love what we do, which is helping people support their families through tough times. Give us a call any time. Consultations are free. We only get a fee if we win your case.
Happy Holidays to all.
Dan Morrin, Esq.
In my new office’s waiting room is a framed poster. It says "The Labor Movement…The Folks That Brought You …Child Labor Laws….Health Benefits…Workers’ Comp….Equal Pay for Equal Work….The Weekend….(etc.). The poster also contains a quote: "Power concedes nothing without a demand. It never did and it never will." (Frederick Douglass.) I love that poster.
What’s my point? Well, this poster represents my views about the importance of the labor movement throughout history. It is Organized Labor that has brought about so many needed reforms. Accordingly, I normally VOTE for those candidates that show support for labor.
This entire article contains my opinions, and yours may be different. I am tired, however, of candidates who campaign SOLELY on a platform that that candidate "will lower your taxes." Is lowering taxes the only important issue for politicians to run on? Why is this always the main thrust of political campaigns? Do candidates think taking a stand on ANY OTHER issue other than taxes is too much for the electorate to comprehend? Can someone explain this phenomenon to me?
Casting a vote in the first place is the key. If you are unhappy with the way your country, state, county or town operates, did you try to change it in some way? Did you vote? Did you engage in meaningful discussion with your neighbors? Or did you just sit back and complain without doing anything to effect change?
Just a reminder that you should exercise your right to vote. If you don’t, someone else who may not agree with your views, will.
See you at the voting booth.
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.
Since July 1, 2010, the maximum weekly benefit rate for NY workers’ compensation (WC) claimants has been floating from year to year. It is pegged to the date of accident—meaning, even if there are increases in later years, the maximum rate in your case stays the same: the max in effect on your date of accident. The max rate changes every July 1st now—-hence this article. When I broke into the WC business in mid-1983, the maximum weekly rate (amount) of Workers’ Compensation that a worker injured after July 1, 1983 could receive was $255 per week, but only if you were totally disabled. Partially disabled workers could only receive $125 per week, at that time, max!
Yesterday, the Workers’ Compensation Board announced that from July 1, 2014 through June 30, 2015, the maximum weekly benefit rate will be increased to $808.65 per week…. a far cry from when I started practicing as a Workers’ Comp attorney.
Maximum rates have been a political football. For a long time they were frozen.
For nearly 15 years, (1992-2007) the maximum benefit remained stagnant at the weekly rates of $340 for total disability and $280 for partial. As of January 1, 2007, New York’s statutory benefit maximum for total disability ($400) still ranked 49th out of 51 jurisdictions – the 50 states and the District of Columbia. Only Arizona, with a statutory benefit maximum of $374.01, and Mississippi, with a statutory benefit maximum of $387.68, ranked lower.
The Comp Board will say that the 2007 Reform (law change) “dramatically improved indemnity benefits for injured workers.” by increasing the maximum rates. It provided for incremental increases through 2009 and then indexed the maximum rate annually. However, the Workers’ Comp Law in 2007 ’giveth” and then “taketh away.” In exchange for increasing the maximum rates, in 2007 the State Legislature instituted “caps” that made lifetime payments of WC pretty much a thing of the past!
When I broke in in 1983, once an injured worker was found permanently disabled, it was assumed that person would get benefits for the rest of their life—-unless they took a lump sum settlement, or returned to work. Now, the caps say that permanently disabled workers get benefits for a certain number of years, and only if they continuously look for work, but then after the term ends (called the “cap”) the payments stop (with few exceptions.)
So, the max weekly rates went up, but the length of time payments would be made was severely slashed. There was a definite tradeoff in 2007 between labor and big business. This was a landmark political compromise- and one that led to the July 1st annual max rate changes we now have. And don’t forget- not everyone qualifies for the max rate. Most injured workers get less than the max—as the law says if you are totally disabled you get the max, or 2/3 of your weekly wages, at most, whichever is less!
Clearly one of the biggest misconceptions about Workers’ Comp is that you have to be out of work to collect. That’s because most people have a limited understanding of what benefits are available. In New York, there are many situations where injured workers can collect workers comp money benefits even if they are working:
1. 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. These awards are extremely common.
Lynn, a right handed office worker, tears her left rotator cuff (shoulder) at work. She normally makes $900 per week salary and she manages to keep going into work and doing her job even with the injury. One year later all of the doctors agree Lynn, who is still performing her job, has suffered a permanent, 20% loss of use of her left arm. An entire arm is worth 312 weeks of money benefits under New York law. This award would then be calculated as follows:
20% of arm= 20% of 312=62.4 weeks at the weekly rate of $600, which is 2/3 of Lynn’s salary. 62.4 x 600= 37,440.
Total monetary award that Lynn collects: $37,440.
All Workers’ Comp benefits are tax-free, BTW.
2. John is a union welder. A torch he is holding when he takes off his mask backfires, burning his face and neck. These leave permanent scars. John only loses one week from work after the accident.
Maximum award John can collect for his facial scars: $20,000.
3. Gina is a nurse. She injures her back at work. She requires physical therapy, pain management, medications, and surgery. After her back surgery, she goes back to work at reduced earnings since she can no longer work full time.
Her employer’s insurance company offers her a lump sum settlement to pay for future loss of earnings and her future medical costs for her back injury, even though she is working part time. The insurance company offers Gina $150,000 to settle the case.
So there are many instances where injured workers can be compensated even if they are working. Therefore, it is important to remember that workers injured on the job should always file a claim not only with their employer but with the Workers’ Compensation Board each and every time they are seriously injured at work whether they are working or not.
Injured workers too often “leave money on the table” that is rightfully theirs; they just don’t know the law.
That’s where The Law Office of Morrin & Sands PLLC can help.
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.
In Workers’ Comp, personal injury, and other legal forums, insurance companies routinely hire “independent medical examiners” (IME’s) to defend the insurance company from the medical part of a claim. As you should know, IME’s are NOT independent. They are “hired guns” paid with insurance company money.
Recently, a Supreme Court Judge blasted the conduct of two well- known IME’s, Dr. Michael J. Katz and Dr. Robert Israel. I am motivated to write this article because I just noticed that an insurance carrier is trying to cut off the benefits of one of my Workers’ Comp clients because Dr. Michael J. Katz wrote that my client is exaggerating her symptoms.
The problem the insurance company will have when we go to the hearing at the Workers’ Compensation Board is that I will show the Judge exactly who Dr. Michael J. Katz is. And it is not a pretty picture. Just take a look at the case of Bermejo vs. Amsterdam.
In the transcripts of Bermejo v. Amsterdam, plaintiff Manuel Bermejo fell from a Baker Scaffold and suffered a severe ankle fracture that resulted in a fusion of the joint as well as a shoulder injury that required surgery. The court indicated that there was a potential verdict of “several million dollars” based upon Bermejo’s injuries. Dr. Katz, the insurance company’s IME, testified that he likely spent 10-20 minutes on his examination of the plaintiff, but a video revealed that he spent only one minute and 56 seconds examining the plaintiff and could not have made all the findings he testified about within that short amount of time. Justice Hart was concerned with the fact that not only was Dr. Katz dishonest about the amount of time he spent on his examination but also lied as to his findings.
Fact of the matter is, this alert and upstanding Judge caught onto Dr. Katz’ complete dishonesty and found that he had perjured himself in court.
Incredibly, Dr. Katz continued on performing IME exams in other cases—including the one on my client— after the Supreme Court Judge found he had lied! Judge Hart, in Bermejo, in fact, said that “It is like a wound that is festering…when is it going to stop? He is making seven figures doing IME’s. Then he comes to my (courtroom) and lies…”
Interestingly, as a result of Dr. Katz’s perjury, a mistrial was declared in the Bermejo case and the defense firms were sanctioned $10,000.00 each.
In my client’s case, I am ready to show the Workers’ Comp Judge just who Dr. Katz is. And as I said, it’s not a pretty picture. For ANYONE out there who has been examined by Dr. Katz or Dr. Israel as an IME, you should alert your lawyer ASAP so that appropriate action can be taken in your case.