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Forest for the trees, did we miss anything?

Along the way of this blog, I have been commenting upon fairly complex New York State Workers’ Compensation issues and may have just missed a basic understanding. To pursue a Workers’ Compensation case to a favorable result; requires that the incident happens or occurs as a result of the work experience. This means not that you discovered the condition while at work or that a condition prevents you from working, but that the specific condition must have occurred and developed out of the work environment and is a consequence of that event, in other words the condition must be related to and develop from the work experience itself. There are many fact situations that will permit connections over time but the connections themselves must exist before you can attempt to obtain causally related befits. You should ask yourself a basic question. Why should my employer be responsible for my treatment and lost time. Unrelated sick time or vacation time although paid by your employer pursuant to an agreement of sorts does not by itself require the Employer to be responsible under the WCL. If you can reasonable show the relation as a cause  not a temporal appearance at work; you should consider it compensation and seek representation to investigate and pursue you rights under the New York State Workers’ Compensation Law.

As repetitively stated, these blogs are informational and limited in scope. A true attorney client contact should be made to better understand your rights in a specific incidence. Please see our disclaimer through these blogs.

Eliot Levine

Eliot Levine and Associates
1455 Veterans Highway
Hauppauge, NY 11749
631-234-5484
e.levine@redsail2.com
fas 631-234-5561

Hurricane Sandy update Friday 11/2/2012

As most of Long Island knows first hand, Hurricane Sandy has left long lines at the gas pump, loss of power and closing of many businesses. As a result, the Long Island Hearing Points for Workers’ Compensation and the Social Security Office for Hearings and Appeals in Jericho, aka ODAR has been closed throughout the week of 10/29/2012. As a service to my present clients , I have attached a cell phone to my business account to receive office calls at 631-234-5484. Since our office fax and internet is not working, you can still reach us as stated and we will be picking up our internet off site where and when the internet is available. I for one have been out of my house since we have been without power since Monday the 29th of Oct. Our office is open and active for walk in and appointments. Please continue to seek medical care from your health providers. We will follow up with them as time and electronics permit. We wish to offer everyone our continued concern and will assist where and when able. This might be a good time to read our blog in its entirety for general information. If you need assistance please contact us as stated.

Hurricane Sandy

As most of you realize, Hurricane Sandy hit New York and New Jersey Monday Oct 29th. 2012.  What is more remarkable is that the Workers’ Compensation Board closed its downstate Hearing Points for both Monday and Tuesday. In years past, Governors were resistant to such closures and injured workers and all persons connected to the system were left to wonder what they should do about scheduled hearings.

Governor Cuomo , helped all concerned by acting appropriately and was out in front of the storm. Rest assured, cancelled hearing will receive prompt rescheduling and notices will be forthcoming. All clients should continue to attend treatment and keep contact with their doctors and health providers when safe to do so. Compliance with board regulations and recent interpretations of the Workers’ Compensation Law will require vigilance in protection of your rights. When safe, contact your doctors, continue to make your work searches and keep your attorney or legal representative in the loop

Resolution of your Workers’ Compensation Case

At the present time, the resolution of a New York State Workers’ Compensation case usually means either settlement by way of a Workers’ Compensation Section 32 Settlement or Walk in Stipulation Calendar action, (WISC). This means, to the everyday worker, after all the dust settles and you no longer require continued immediate care you can consider settlement options. If the settlement is to be a full and final resolution of your rights you would use the Section 32 avenue. In some instances continued medical care can be negotiated with some accommodation by way of a reduction in the indemnity benefit for the settlement. In some cases, annuities can be used or grafted to the settlement which can be adjusted to the indemnity portion of the case. This requires detailed negotiations and review of any Medicare conflicts and rights. The time table for such a resolution as stated by the agency presently reviewing Medicare’s rights for CMS approval and Medicare’s protection is now more than 270 calendar days post settlement negotiations for old cases and approximately 90 days or less for recent settlements. A short partial resolution of your case can also be accomplished by a WISC settlement upon agreement of the parties and formalization by the law judge on your case. This process usually takes two weeks from date the agreement is signed to a hearing date and another two weeks post hearing,  for publishing and payment of the award. Settlements while in theory can be on any aspect of the Workers’ Compensation case, they are usually not used until immediate care has ended. As stated earlier in prior blog  postings, this blog is to be considered for educational and informative purposes only. See my disclaimer throughout these blogs for proper use of an attorney for your personal case.

Long Term Disability

Very often employers provide or individual workers obtain additional insurance policies known as Long Term Disability., aka LTD.  These types of insurance plans  provide indemnity benfits to those individuals who are disabled under the terms of the LTD policy. Most of these plans require those persons entitled to benfits to also apply for Federal Social Security Benefits since the provider of the benefits would then be permitted (in most plans) to limit or reduce it’s obligation by the amount of the Federal Social Security Benefit as well as be reimbursed by the beneficiary for retroactive Social Security Benefits.  It is therefore important to know the requirements of your LTD policy as well as whether there is a set off for Workers’ Compensation Benefits. Most LTD policies are not used to reduce their payouts by the amount of any Workers’ Compensation benefit but, this does not meanthey can not be written to provide such a credit to the benfit provider. Most LDT policies begin after the expiration of six months of being totally disabled. You should also be aware that each LTD plan has definitional explanations of “total disability” both as to degree of disability and duration. It is usual for LTD policies to define compensability as being totally disabled for your past job as described in the policy  for a period of time but, a new definition may occur in most plans after a two year benefit year passes. It is therefore sigificant that not only do you read and understand the terms of your policy but that you review same with a professional so you understand your benefits. As discussed throughout this blog, no attorney clent relationship exists and the information contained throughout this blog is for informative purposes or educational only. A proper retainer and face to face discussion is necessary to protect your rights since specific policies and facts as well as locations may effect the rights contained in such arrangements.

Self protection for injured workers

As some of you are now aware,  the sensitivities and interpretation of benefits for injured workers has become more stringent. Any person injured on the job and who is not totally disabled has an obligation to search for work consitent with their disabilities and skill level. What this means is that since the “Axel case”, the burden has been  placed on workers to demonstrate they have made sufficient attempts to look for work consistent with their deminished abilities. Failure to make such a “work search” has been found to be detrimental to receiving contiued indemnity benefits and in some cases even prevent the continued receipt of medical bnefits.

It is therefore incumbant upon the injured worker to be able to document this “work search” with written copies of applications, written rejections and details of the kinds of work with the specifics of the search. A mere review of the classified or computer searches is not necessarily convincing. Registrating with the local ” One Stop” division of the Unemployment Office near you is a start. Diligent follow up with same and actual filing for work with applications and records are being requested by most compensation law judges.

Do not be complacent or acquiencent. If you are questioned in court you are required to present evidence of such work searches. Oral statements without physical evidence is not effective evidence. A word to the wise, protect your benfits. Keep written logs of your “work searches” and be prepared for investigations by the insurance companies. Do not sign statements without discussing your rights with an attorney. Be honest but be aware. The free ride has ended. The insurance industry has adopted the Regan credo, ” Trust but Verify” which has become Prove or Be Disbelieved.

As always,  note our legal disclaimer,  this blog is not legal advise but merely informative and for educational benfits. Legal rights are best protected by retention and following the advise of your legal cousel. 

East End Law

When last we blogged , Eliot Levine and Associates was looking to open an East End Workers’ Compensation and Social Security Disability intake center. After much discussion with medical professions in the east end and the slowing down of those making the trip east; we have decided to try other venues for client retention. We have viewed Dan’s Papers , the North and South Ferry’s from Shelter Island and are presently exploring additional options. We are still interested in providing legal services to injured workers throughout Suffolk County but,  have begun to focus on using our present facility , 1455 veterans’ Highway, Hauppauge, New York 11749 as a jumping off point.

As an update from information recently gleened from continuing legal education courses : all users of the new communications technology should be wary and be cognizant that your e-mail, social media and cellular communications are not necessarily private and may be subject to subpeona or discovery.  What this means in simple terms is that social blogging, transmitting pictures and the like to friends and the general world can and is being reviewed by others from defense counsel to a whole range of individuals and companies. The attorney client relationship no longer necessarily protects information transmitted when the instruments of transmission are not private themselves, , i.e., business servers, family joint passworded accounts,  etc. A word to the wise, if there is something you transmit that you might not want revealed to unintended recients do not transmit it.  Just for the moment, consider recent pictures of the royal couples vacation. Privacy is elusive.

As always , this blog is informational and not legal advise. A formal face to face retainer and personal discussion relating to your individual problem within the fields usually handled by such legal counsel is always best and is always subject to the locale, time and facts presented.

News item: What’s new at Eliot Levine and Associates?

Eliot Levine and Associates is exploring new options on the North Fork of Long Island. We are especially interested in representing workers who live or work in the Riverhead, Greenport, Southold and Mattituck areas. Such workers may be shopkeepers, sales or restaurant personnel or any employee who has or is working in the nearby marinas, farms, wineries, golf courses and construction sites. We are pursing a new campaign to assist claimants who have sort care from two East End Hospitals; Peconic Bay Hospital and Eastern Long Island Hospital. We are considering setting up a satellite intake office in or about Greenport to help service such sites. We will see how this develops?

We continue to limit our legal services to Workers’ Compensation, Social Security Disability and Personal Injury cases. Please refer to our web site for a more comprehensive discussion of our activities.

What is the Appeals process in NYS Workers’ Comp.

Once a case has been formally presented to the Workers’ Compensation Board, the losing party may appeal, ( i.e.,request review by a Panel of the WCB.) In other words, the case must be filed with the WCB which is an administrative court. After the case has been presented,  usually to a WCB hearing officer, a decision is rendered. This traditionally takes 30 to 60 days for said decision to be rendered and published. At that point,  an appeal can be processed to a panel of the WCB. Following the decision of a WCB Panel of Commissioners; an aggrieved party may,  depending on detailed procedural rights and requirements,  further appeal to the same panel by requesting Reconsideration or in some cases request Full Board Review of the panels decision.

There are four WCB Panels composed of three commissioners who ride circuit in the four districts of the State. The Full Board is composed of all 12 WCB Commissioners plus the Chairman of the WCB.  Their decision exhausts the administrative route. Further appeals can then be processed civilly to the New York State Supreme Court,  Appellate Division, Third Department who presides in Albany. The end of the line would be an Appeal to the highest court, The New York State Court of Appeals. The time period from inception of the case to publishing decisions by the Court of Appeals can take many years. It further appears theoretically,  Federal Questions could be pursued through the Federal Courts. This writer knows of no Workers’ Compensation case that has been further pursed Federally.

Most cases never go past the original trier of fact or one level higher to a WCB Panel reviewing the case. Of the cases appealed to this level;  there recently has been an increasing backlog of cases pending and this has caused delays in hearing process and the issuing of formal panel decisions. The present time associated with a decision, post appeal to a WCB Panel, has been approaching approximately one year from the time the appeal is filed. It appears the WCB is working on shortening this time period.

Practical application of Zamora decision

The Zamora decision by the Court of Appeals has left most of the bar questioning how these cases would play out in practice? In other words, what would the Compensation Board do now that there is no requirement that lost time, post classification, be held to have been caused by the previously classified condition? One WCB panel has found that such loss of work post classification is caused by the disability subject to rebuttal.  Hence this would leave some to believe,  although not required as a presumption,  each panel can and some have maintained such a presumption should be followed. The hope is that although not required, the rest of the wcb will follow suit.