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.
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!
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.
Section 10 of the Workers’ Compensation law in New York State says, among other things, that there shall be no liability for compensation “when the injury has been solely occasioned by intoxication from alcohol or a controlled substance………”
It has long been the law that if someone gets injured on the job SOLELY because they are drunk or stoned, the employer is NOT responsible.
But what about the recent legislation regarding medical marijuana? Does this affect the Workers’ Comp system in New York?
In my opinion, New York State and Governor Cuomo’s recent passage of a limited medical marijuana bill should NOT affect Workers’ Comp. Why? Because the bill says:
To be prescribed medical marijuana, a patient must receive a certification from a licensed practitioner who must register with the Department of Health and be qualified to treat the serious condition for which the patient is seeking treatment. The serious conditions for which medical marijuana can be prescribed are cancer, HIV/AIDS, ALS (Lou Gehrig’s Disease), Parkinson’s Disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication on intractable spasticity, epilepsy, inflammatory bowel disease, neuropathies, Huntington’s Disease, or as added by the commissioner by DOH.
Looking at this list, there are few if any such conditions that could possibly be work-related. The only ones that are possible are the nerve damage situations but those seem to cover only the most severe. So this law likely won’t affect Workers’ Comp.
But what about Social Security Disability and Medical Marijuana? I googled these together and found some interesting articles. Remember, marijuana is still illegal on the federal level and Social Security is a federal program. If someone is alleging a mental disability and is taking marijuana on a daily basis it might be hard for the Judge to decide their case. Anyone who is found to be disabled because of drug use can be denied benefits on that basis.
So the use of medical marijuana will make disability claims more complicated.
Bottom line—this is still new territory for the disability field, so stay tuned………
District Attorney, New York County
For Immediate Release March 25, 2014
DA VANCE: GRAND JURY RECOMMENDS SIGNIFICANT CHANGES TO PREVENT WORKERS’ COMPENSATION INSURANCE FRAUD
Empanelled at Request of Manhattan DA’s Office, Grand Jury Finds Evidence of Workers’ Compensation Insurance Premium Fraud Costing New York Nearly $500 Million Annually
Report Released on 103rd Anniversary of Greenwich Village Triangle Shirtwaist Factory Fire
Manhattan District Attorney Cyrus R. Vance, Jr., today announced that a New York State Supreme Court Grand Jury has issued a report examining the vulnerability of New York’s workers’ compensation insurance system to fraud and misuse. The Grand Jury’s report stemmed from investigations by the District Attorney’s Money Laundering and Tax Crimes Unit into false information provided to the New York State Insurance Fund in connection with applications for, and audits of, workers’ compensation policies.
Taking into account a June 2013 report of the Fiscal Policy Institute and other estimates, New York City’s construction industry in 2011 cost the City and State approximately $500 million based on worker misclassifications. The largest component of the loss was unpaid workers’ compensation premiums, with personal income tax, withholding, unemployment insurance, and various other business taxes accounting for the remainder.
Premium fraud affords wrongdoers an improper competitive advantage over all law-abiding businesses, makes workers vulnerable by depriving them of important protections and benefits, and deprives New York State and New York City of substantial revenue. Every lost dollar must be made up by a dollar increase somewhere else, usually by a cost-shifting phenomenon that affects us all. Every law-abiding employer is a victim of this criminal conduct, as is every hard-working employee, every consumer, and every honest taxpayer
Many of my clients who are injured on the job in New York State are disabled and stay out of work longer than 12 months. In such an instance, can the injured worker ALSO receive Social Security Disability Benefits?
In many cases, the answer is YES.
If the Workers Compensation (WC) claimant (injured worker) is 24 years old and has a back injury, and stays out ow work longer than 12 months, I would say that person has a very low chance of winning a SSD claim. Probably too young. But let’s assume the injured worker is 55, speaks no English, has only had heavy jobs (requiring lots of lifting) their whole life and has that same back injury and time out of work (over 12 months.) Now, there’s a good SSD claim. I file both of these types of claims all the time for my clients………..if I win both, a client gets BOTH benefits at the same time!
The “catch” is that there is a monetary limit to how much a disabled worker can receive as a COMBINATION of SSD and WC. Here’s the rules:
1. SSD will only “offset” (lower its benefits) if the claimant also receives “public” benefits like WC, but not “private” benefits like a Long Term Disability policy that the client is covered by, or a private pension.
2. The applicable limit on receiving SSD and WC is the higher of either:
- 80% of the worker’s pre-injury income, called “average current earnings,” or
- the total amount of SSDI received by all of the members of the recipient’s family in the first month that worker’s compensation is received, called the “total family benefit.”
For most SSDI recipients, the 80% of earnings figure will be higher, and Social Security will use that figure in the offset calculation.
That’s why I practice in both areas of the law—–often, they go together like Batman and Robin, or peanut butter and jelly, or pork and beans, or…………..well, you get the picture!
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.
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