Author Archives: elevine

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

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.

Treatment Post Wisc Agreement

You may be able to reopen your case if your medical condition gets worse

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.

Electronic filing has not led to fast resolution of workers’ compensation claims

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

Caps have had a big effect on workers’ compensation claims

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.

With limited exceptions, you can only receive monetary benefits up to the duration of the cap

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.

Claimants with capped cases can experience a reduction of settlement value

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.

For more specific advice about your workers’ compensation case, call now

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.