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Substantial Fairness or Why you need a lawyer

Substantial Fairness or why you need a Lawyer for dispute resolution

When difficult situations occur because employers or their insurance companies refuse or fail to provide benefits to injured workers the courts in this case the Workers’ Compensation Law (WCL) and the Workers’ Compensation Board (WCB) is the law and the place where and how these conflicts are resolved. The Compensation Board was devised as place and the WC Law was the procedure to assist in resolution of disputes., aka as a remedy in legalese. What has recently occurred is the blanket use of penalties created and now applied in a manner to effectively prevent injured workers aka claimants and their attorneys from use of the court house, ( the WCB) without an undue burden placed upon the claimants’ counsel to literally resolve all issues or prove that you have exhausted all attempts with documentation or attempts made before you can gain access to the WCB. The WCB has begun by regulation and practice the institution of penalties masquerading under the alleged authority of section 114 a 3 to permit judges to arbitrarily and uniformly penalize attorneys who request hearings when neither the WCB nor the carriers have properly performed their required responses. In olden days the remedy to correct this short coming was called a mandamus proceeding.
Now attorneys file a form called a rfa-1 which is a form requesting action by the WCB. This forms implementation, now carriers penalties, if the form is used without extensive documentation to substantiate the needed request. Penalties much like official contempt proceedings, now exist by Administrative fiat or interpretation.
The WCL was created to provide a quick and easy method to relieve and resolve access to conflict resolution prevalent in the early 1900’s and highlighted by the “Triangle Shirt Factory Fire.”
With the WCB’s present interpretation of WCL section 114 a 3 it misconstrues the only court case that has interpreted the section. (See In the matter of Evelyn Toledo 112 AD3rd 1209, Dec. 19, 2013 NYS, Appellate Div. 3rd. dept.) That case, involved over reaching by an attorney who either was self-interested in his fee or was trying to forum shop (searching for a different venue). As a result, the WCB is itself misapplying the precedent to close the court house doors to all claimants and their attorneys under the threat of personal penalties for requesting hearings on claimant issues. The WCB’s actions belie either a fundamental failure of the WCB to carry out its mission or worse, presumes claimants and their attorneys have some other nefarious intent.
We are now left with a child hood game “Mother may I” and the response “No.”

Quicker Indemnity only settlement

The Workers’ Compensation Board has instituted a system to expedite section 32 settlements that are limited to indemnity only ( payment of future lost wages) with the continuing right to medical benefits subject to the Medical Treatment Guidelines. It is hoped this will be used by all parties to move the process along. We are all hopeful that these written agreements will be followed as written. We’ll check in later to comment on results.

New Website – Eliot Levine and Associates

This is another update to EliotLevineandAssociates.com.  This past weekend we launched our new internet web page and its connected sites. This should make the site more user friendly as well as smart phone compatible. We will continue to blog in the area of Workers’ Compensation Law as well as Social Security Disability Law.  Our connections remain the same with additional inter-related postings. Please feel free to read www.redsail2.com, longislandworkers.com and our other sites.

Thanks,

Eliot Levine

Treatment Post Wisc agreement

Most Workers’ Compensation claimants are unaware once they resolve their cases on a Wisc hearing, they may be able to reopen their cases if their medical condition has changed for the worse. A “changed condition” means your doctor must agree the reason for the treatment is still related to the original claim but,  now the degree of disability has become worse requiring new,  not maintenance care. Please contact your doctor should you believe this applies to your case. As always,  these writings are for educational purposes and are not to be considered legal advise. You should always contact an attorney for specific advise where a retained representative can evaluate your specific circumstances. Each case is different and can best be evaluated by direct interview with your legal representative.

Too little too late is the workers’ compensation reality.

 Compensation when enacted and modified has always professed to be interested in promoting fast and just resolution of industrial injuries and occupational diseases. What has developed is extended litigation by way of a digital presence. The medium is not always the message. Just because we can now inspect and connect with the existing systems of documentation electronically and even remotely does not by itself, permit just or quick conflict resolution.
Electronic filing of documents and review through computer access with shortened periods of time does not remove or even unearth the delays associated with the decision making process and appeal determinations. There cannot be a cookbook analysis where every factual situation leads to a quick one size fits all evaluation. Each case must be decided on its merits with ample time left for development of the record by all interested parties.
The moving parts of a standard compensation claim, relies upon factual development with confirmation by both employers and injured workers; presentation of Medical evidence with reasonable time for review and confrontation if requested, pursuant to wcl sec 20. This section of the Workers’ Compensation Law grants the statutory right to “ a  hearing where either party may present evidence and be represented by counsel”.   This is the gray area of litigation enshrined and preserved by the actual hearing process.  Concomitant with these rights is the appeals process.
Regrettably, the time associated with the publication of a determination after appeal has become more that 14 months and counting from the initial application for said appeal to the wcb. This means after the delays associated with the hearing process are absorbed, an injured worker may not actually be receiving monetary benefits nor medical treatment for an extended period of time which has irked both the disabled worker and employer alike.
What is needed is not more computerization but, more personnel in the administrative appeals process who can render equitable decisions on the appeals submitted in a shortened time period.  This is not a call for rubber  stamping lower board decisions but, a  shortening of the delay in rendering  well thought out and credible determinations once reviewed.  Possibly this will not fall on deaf ears.

As always , this is one man’s opinion and merely submitted for discussion bases. All individual issues should be discussed with your representative for more complete advice.

 

Caps in Workers’ Compensation

Workers’ Compensation claimants are now beginning to appreciate the effect of “caps” in Workers Compensation cases. In March of 2007 cases for claimants who suffered accidents or on the job injuries and who became classified as permanent partial disability cases with initial dates of injuries on or after that date began to have their benefits limited in duration from the date of classification. What this means is that the apparent right to receive continuing indemnity benefits could be stopped once  a cap was instituted as directed by the changes in the Workers’ Compensation Law. A schedule of continuing monetary benefits is posted for the degree of an individuals loss of earning capacity. It appears that this duration for most classes of permanent claims is around 5 to 6 years. The effect of the caps is that once effectively established as a classified case with a finding of loss of earning capacity,  you can only receive with limited exceptions monetary benefits up to the duration of the cap. Therefore the value of your monetary benefit outside of continuing medical rights,  ends,   at the expiration of the capped time period. If your cap is for 5 years you can only receive another 5 years of indemnity benefits post the date of classification. For years claimants attorneys for different reasons have avoided classification and hence held off the institution of a cap. The claimants’ attorney held off  to permit continuing benefits to the claimant  and the carriers could put off having to place large reserves and payments to specific funding aggregates. also known as the aggregate trust fund. Now the agency has begun to set cases for classification and findings for loss of earning capacity regardless of either the claimant or the the carrier requesting same. What this has done is to place the administration directly in charge of curtailing  benefits for most claimants and requiring the institution of deposits by certain insurance providers into this aggregate trust fund. An additional effect has been a reduction in the settlement value of a case to claimants with capped cases. For example if you have a capped case  of 5 years the insurance carrier only has to continue paying indemnity benefits for an additional five years so their interest in settling a case becomes a factor of the five years. Some insurance companies are using a factor of 60% of the cap . Five year cap value  at 60%, which would generate three more years of benefits  as the settlement rate  as a function of the weekly indemnity rate. If the payout was five years at $400  or $104,000, now the offer becomes $62,400. Some claimants when faced with such offers opt to continue running out the cap till nothing remains. Other grasp for the reduced indemnity benefit in one payment rather than weekly payments under the length of the cap. The real incentive to the claimant is reduced and it to this writer is unclear what happens to the deposit into the aggregate trust fund once the case is settled. Some believe the fund retains the deposit regardless.   In either event no one is pleased with this turn of events. More to come at a later date. As stated throughout this blog. These articles are to be considered for educational use not being case specific. All cases should be discussed with your attorney for more specific application to your case.

Realities of time associated with Wisc and Section 32 Agreements

As we have discussed throughout our blog; payment of the agreement is subject to various delays and legal formalities. The quickest  way to modify your benefits has become the WISC settlement. These formal written agreements must be approved by a Law Judge before the carrier can be compelled to make appropriate payments pursuant to the agreements.The normal time, post signing of the written WISC agreement for a hearing,  is less then three weeks after all parties to the agreement have signed same. The procedure starts with a request for a hearing by one of the parties and has been running within two weeks of the request with payment following the written publication of the agreement by the Workers’ Compensation Board. The publication of the approved agreement usually takes a week to ten days post hearing.

A more detailed settlement is usually done by way of a Section 32 Agreement. This procedure has many delays to wit: formal writing of the agreement and the signing of same by all the parties. Occasionally when individual beneficiaries are on Medicare or Medicare eligible a formal application and review has to be conducted by vendors for the Insurance Company and then reviewed by the CMS unit responsible for Medicare cases. This has now been taking approximately 4 weeks for the Vendors review and and additional 4-6 weeks for CMS approval when no glitches develop. Once the CMS approval document is issued by CMS then hearings are generally set by the compensation board  and held within 5-7 weeks post filing. Once the Judge approves the agreement at a hearing a decision is published within 2-3 weeks and payment is made by the carrier within 10 days of the published decision date.

As stated throughout our blogs,  these blogs are both written for educational and informational purposes and not formal legal discussion of your specific case. Individual delays sometimes occur depending on the specifics of the instant claim. It is always best to contact your attorney for full and formal discussion of your claim and benefits associated with same.

Practise remains the same.

The firm continues to be a ground level litigation firm handling court appearances and trial work from start to finish. The reality is that Workers’ Compensation has devolved into settlement negotiations or long fought litigation. We try to negotiate good results without jeopardizing our clients benefits. We believe the assistance of veteran trial attorneys will help in this new era of Compensation and Civil Litigation.

Additional thoughts legal Services

Over the last many years we have been working with individual attorneys assisting us with complex Negligence cases. We are now reviewing additional routes for handling lighter cases with visiting  attorneys.We’ll let you know how this develops. I am investigating my options?