Covid effects on Hearings

After a year of covid, what has happened under the Workers’ Compensation and Federal Social Security Law as practiced in New York ?

Virtual hearings have taken over the practice. This means that the physical court house for hearings on workers’ compensation cases has all but been eliminated. The case will be heard by a law judge or reviewed by a conciliator. The law judge is assigned to the case and conducts a hearing either over the phone or through the internet. All parties are advised and asked to be present by such devices. The law judge listens to presentation and review evidence previously provided on your case and then renders a formal decision on some if not all of the issues ready for resolution. If additional evidence or testimony is required, time is set aside for same and when completed the judge renders their decision. Adverse decisions are subject to an appeals process.
The Social Security Disability and Supplemental Security Income process has become a phone conference wherein the trail judge reviews evidence previously submitted to the federal exhibit file, takes oral testimony and renders a decision unless additional evidence is required. Any written adverse decision may be appealed. Video hearings have been eliminated in almost every circumstance. The process from application to decision by a federal law judge takes approximately 3 years. Once a formal and favorable decision on a disability case is rendered, payment of retroactive awards less the first five months of disability is effective. This payment takes about two months post written decision. In Supplemental Security Income cases awards are effective from the first month after the date of disability. This disability date is not the date the decision is published itself but, the month after your disability is determined as supported by the evidence and the trial judge states in their decision.
As has been stated many times before, these articles are for informational and educational purposes only. They are not to be construed as specific legal advice which can only be given to you when discussing the particulars of your case with a retained representative. We will periodically render additional articles in the future. Eliot Levine

PPD and Fraud

Re: Permanent Partial Disability and Fraudulent shifting of medical responsibility.

A recent change in the Workers’ compensation Law has occurred to the benefit of injured workers. Prior to this change, any worker who is found to have a partial disability was required to make a complete and well documented work search if they want to continue receiving compensation indemnity i.e., weekly payments. (see Axel Case etc.)

Now those cases where the workers compensation board has found the claimant to have a Permanent Partial Disability and has been classified as such ; no do the claimants have to show or produce evidence of a proper work search. It is presumed that the reason for not working or working at a reduced financial level is because of your workers compensation disability. The burden has thus shifted to the carriers to produce evidence otherwise.

It has also come to our attention that some disable workers have run into difficulty obtaining medical treatment or prescriptions filled under their workers compensation case. Neither the claimant, health provider or pharmacy may without the possibility of fraud attempt to shift the billing and payment for desired treatment or medications away from the workers compensation insurance company. The remedy is to litigate causally related care under the workers compensation case once all proper filings have been made by the health provider using the existing Medical Treatment Guidelines as promulgated by the Workers Compensation Board.

Please guide yourself accordingly to protect your interests.

I Just Got Hurt on the Job. What Do I Do?

If are injured on the job, there are a few steps that you must take to give yourself a better chance of being adequately compensated after filing a workers’ compensation claim.

1. Seek medical attention and notify your employer

The first thing to do is seek medical attention and notify your employer that you were injured on the job. Be sure to notify your employer as soon as possible. When you do seek medical attention, be it from an emergency room or a walk in clinic, notify the medical provider that you were injured on the job.

2. File a claim with the New York State Workers’ Compensation Board

Your next step is to file a C3, also known as a Claim Form, with the New York State Workers Compensation Board. This will establish your workers’ scompensation claim. Your medical providers will then fill out a C4 form (also known as a medical report) to be filed with the New York State Workers’ Compensation Board.

3. Call an experienced workers’ compensation attorney

We recommend that you seek out a and retain an experienced lawyer that handles workers’ compensation claims on a regular basis. Your lawyer will advise you on how to proceed in regards to medical providers and the proper documentation that is need to secure your indemnity and medical benefits.

The lawyers at Eliot Levine & Associates have represented countless clients in workplace injury cases. If you’ve been hurt on the job and you’re looking for an experienced workplace injury attorney, call us now for more information.

Workers’ Compensation and Social Security Disability Questions & Answers

Do I have a case?

Any injury happening on the job in NY or emanating from the job exposure is covered under the New York Workers’ Compensation Law subject to some exceptions listed in the Statute. You must be a covered individual, legally performing your job duties.

Is there a consultation fee?

All fees are contingent in Workers’ compensation and Social Security cases in New York and are subject to Court approval.

How do I pursue a Workers’ compensation case?

I suggest you hire or retain a lawyer who handles workers’ compensation cases regularly. The law has become quite complex and has many pitfalls for the unwary.

How do I proceed with such a claim?

You must notify your employer. File a written c-3, also known as a claim form and obtain medical evidence from a medical provider recognized by the Workers’ Compensation Law. This is done by the provider filing a c-4 form aka a medical report on the proper form with follow up documentation regarding your case.

How are attorneys’ paid?

All attorneys fees are deducted from your formal award and determined by the Workers’ Compensation Board ( WCB) or the Social Security Administration for Social Security cases.

Are my benefits taxable?

In most cases, they are not. In some combined Wcb and Federal Social Security Cases cases( SSDB); there can be a tax and this should be discussed with your accountant when you are positioned to receive benefits under both systems.

How long does it take to receive Social Security Disability Benefits?

It usually takes three years from the date you first file your claim to receive the financial benefit.

Can I collect indemnity benefits under both systems?

Yes, but there is a maximum benefit determined by your past listed Social Security Benefit (FICA) and this is calculated upon your filed on the books income. Your workers’ compensation benefit is calculated based on the year immediately proceeding your Workers Compensation Case subject to maximum and minimum rates effective on the date of your accident. Your Social Security Benefit is reduced in most cases by your Workers Compensation benefit.

Can I collect medical benefits for the same conditions under both systems?

No, but you can collect medical benefits under both systems for unrelated medical conditions. The systems are separate and have there own methods for determining what is related and what is not. Neither system can bind the other.

These, like most legal questions, are best left to direct discussions with a retained attorney. Each case is unique and these answers are merely general and provided for educative use. Your specific case may have differences that cannot be addressed in this forum.

Contact us today directly to discuss your specific case.

A Late Winters’ Tale

A Late Winters’ Tale

On March 7th. 2018, anticipating 9-12 inches of snow, I arranged to have my clients’ Workers’ Compensation case taken over the phone.

My client was present after multiple prior discussions and the case was called. My client was at the court and I was on the phone. This presages the new video hearings to be scheduled in the near future.

To make a long story short; the hearing ended by having to be “pulled off the calendar for failure to prosecute” until various corrections could be made. There is nothing like “in-person appearance” with clients in court. Clients occasionally forget things when forced to address court officers and opposing counsel.

What makes this especially difficult is that an interpreter was necessary to assist with this workers compensation case at bar. I submit, when at all possible, all parties should be present together in court and be able to discuss options with opponents and go forward jointly before the law judge. A guide to the wary.

January Thaw

As some of you may be aware, the Workers’ Compensation Board is phasing in virtual hearings for New York State.

When made effective for your jurisdiction, you will have the option of attending your hearing by electronic appearance. The firm of Eliot Levine and Associates has been gearing up for this option and will be making it’s Islandia office available for same.

We believe it is best to be present with your attorney when your Workers’ Compensation case is being presented. We have installed video cameras on our computers and when you receive notices of the option for video attendance, we will contact our clients to arrange for your presence in our office.

We will still be attending courtroom hearings but will be also available for virtual compliance. Should you have any questions, please contact us.

Thanking you in advance.

Eliot Levine

2017 Update on Workers’ Compensation

This year has been a hard fought battle to protect and increase workers’ benefits under the New York State Workers Compensation System.

It is now easier for disabled workers to get workers’ compensation benefits

The NYS 2017-2018 State budget signed into Law in April of this year protects workers by eliminating the draconian requirement that workers who have been found or are now found by the Compensation board to have a permanent partial disability must look for work consistent with their disability. No longer must the worker prove they are looking for work within their established disability. This dreaded concept was known as having to show they are “attached to the labor market or actively searching for gainful employment.”

Employers and their Insurance companies had been using this “attachment” criterion to prevent injured workers from receiving monetary benefits for their continued disability sometimes characterized as indemnity benefits.

Proposed workers’ compensation benefit restrictions have been defeated

The second major event occurred when attempts to restrict the amount of monetary benefits permitted by what is called schedules. What is left is the existing law. The attempted restrictions unless modified or altered by the Workers’ Compensation Board, will primarily remain unchanged. As stated a schedule is a determination that permanent injuries to body parts not subject to classification as a permanent partial disability will continue to be given an evaluation on the overall degree of disability with determined and established as a monetary award. This award will be granted for the overall scheduled disability for that body pars involved. This means a set schedule will be found for the amount of disability payable at one time less indemnity payments made leaving open medical benefits for the life of the worker without any reduction of the established schedules as found in the statute.

The attacks on workers benefits has been forestalled at this time by the efforts of many pro-worker advocates and organizations who all deserve praise for their effort and accomplishments.

Substantial Fairness or Why you need a lawyer

Substantial Fairness, or Why You Need a Lawyer for Your Workers’ Compensation Case

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 these conflicts are resolved.

The Compensation Board was devised as the place and the WC Law was the procedure to assist in the 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 courthouse 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 Workers’ Compensation Board. The Workers Compensation Board has begun to regulate 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 Workers’ Compensation Board nor the carriers have properly performed their required responses.

In the olden days, the remedy to correct this shortcoming 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 procedure now carries 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 Workers’ Compensation Law 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 Workers’ Compensation Board’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 overreaching 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 Workers’ Compensation Board is itself misapplying the precedent to close courthouse 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 childhood game “Mother may I” and the response “No.”

Work with an experienced workers’ compensation attorney at Eliot Levine & Associates today. Contact us today.

Quicker Indemnity Only Settlement

Secton 32 Settlements Have Been Expedited

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  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, and our other sites.


Eliot Levine