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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.

Realities of time associated with Wisc and Section 32 Agreements

The type of workers’ compensation settlement you get can affect how fast you get your payments

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.

Practice remains the same.

We handle your workers’ compensation case from start to finish

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.

Recent changes to Workers’ Compensation Practice and court locales

The Workers’ Compensation Board has changed recently

It’s been some time since I was able to write to this blog. My daughter got married, my wife and I took a vacation. I hired two different attorneys and now continue serving my clients with three attorneys on staff and a few associates at various hearing locations; we’re now back on the beam.

As previously stated we continue to provide legal services in the fields of New York State Workers’ Compensation, Federal Social Security Disability and Negligence. Veterans’ disability claims are presently on hold as you may have noticed,  there appears to be an extensive back up in that system and efficiency seems delayed.

The Workers’ Compensation Board has gone through some recent geographical changes. The Riverhead hearing point has been closed. Cases previously assigned to Riverhead are now being heard in Hauppauge. Claimants are given the right once they evidence a hardship to attend their hearing via phone. Wisc Settlements and Section 32 Agreements once written and filed can also be approved by a law judge with the claimant attending by phone. This practice is subject to a case by case and judge by judge decision. It further appears that claimants who live along the western border of Suffolk County will be having their hearings held in the WCB Hearing Point located in Hempstead. This is also subject to telephone appearances upon judicial prior approval. It is always best to attend your hearing / case in person.

The medical treatment guidelines professed by others to exist as a means to expedite treatment has proven a cog in the system which required correction permitting some chronic care with stated limits. It is always best to have your doctors thoroughly review the Medical Treatment Guidelines posted by the Workers’ Compensation Board and to follow them explicitly.  The forms C4 Auth should be used as detailed by the treatment guidelines where applicable. If additional treatment beyond that which is stated in the “Guidelines” is required; your doctors will have to file MG 2 forms with explanations why the treatment desired or requested is medically necessary and they must document in detail why the present form of treatment is showing improvements but further care is necessary. Most of the health providers seem to be able to comply with the Guidelines or document why additional treatment should be approved. Regrettably, some insurance carriers have elected to refrain from being required to give prior approval to treatments listed under the guidelines.This has proved to be a vexing condition for the health providers who may not provide treatment unless and until it is sanctioned by the guidelines or a variance has been approved by a law judge. All of these obstacles continue to thwart the professed intention of the act which has always been to promote quick and early treatment to injured workers allowing them to successfully return to their respective places of employment. We hope the WCB comes to regain this philosophy.

New paths for Eliot Levine and Associates.

We are in the beginning sages of opening a new section of the practice to cover disabled veterans who are denied Veterans Disability Benefits. I am presently reading up on the appeals process and will begin to canvas for additional support staff to interface with the Northport VA and to do supplemental tasks in the office rounding out the provision of disability representation for my clients before the associated agencies. We will now provide legal assistance in the fields of New York State Workers’ Compensation Law, Federal Social Security Disability Law, Negligence and Veterans Disability.  We will continue to work in various associations paralleling legal services with affiliated legal providers.

Wifi upgrades

In an attempt to improve this blog we have modified our equipment by upgrading our system WiFi with Cisco larger router, Cisco extender and Apple TV effectively increasing bandwidth generating faster streaming. System works great and overcomes weak spots in building.

This now allows additional locations as base for continued client contact with multiple devices.

We’ll have to see if this generates interest in the rest of the Workers’ Compensation Blog.

Overlapping Issues

Your workplace injury may be eligible for multiple different types of claims

Very often similar facts patterns, which at first blush appear to be limited to a single Workers’ Compensation claim, may also be susceptible to legal interpretations which may lead to multidisciplinary issues that should be pursued in parallel areas of the law.

For example, while an injury caused in and out of the work place might suggest a Workers’ Compensation claim; if you are rendered unable to do any work in the national economy as a result of your injury and this keeps you out of work for a year or more, you may also be able to successfully pursue a Federal Social Security Disability claim. An outside worker who gets injured in the course of his or her employment while driving in a vehicle may be able to file for No Fault Benefits in the form of increased personal income benefits. In some cases a negligence case may also be brought against the  responsible party with adjustments from successful awards for benefits provided.  Sometimes,  individuals with long term disability benefit contracts are permitted to obtain LTD benefits from the same injury and continue to receive Social Security Benefits with limitations and relationships between said benefits. Some individuals carry retirement agreements which permit continuing  benefits from other areas of the law and continuation of your Workers’ Compensation Benefit. For a proper legal interpretation of your rights,  it is best to contact your legal representative and go over all possible implications associated with the fact pattern causing your injury and thereby permit a proper evaluation of your specific issues.

As stated throughout this blog, these blogs are only informational and / or educational and therefore do not create an attorney / client relationship. It  is therefore always suggested that you contact  your attorney for a full and meaningful discussion of your individual rights and responsibilities.