The long awaited New York State Court of Appeals decision in the “Zamora” case has been issued and the Court of Appeals’ decision supported by a 4 to 3 majority opinion holds that the Workers Compensation Board “may but is not required to presume” that a claimants’ reason for not working post a formal determination of permanency, known as a finding of “permanent partial disability” ( PPD), is caused by said causally related condition. This now permits challenge as to why individual claimants are not working. Case law permits presentation of evidence on this issue. All claimants should consider verification of their non working or limited working status and confirm causally related ( c/r ) medical bases and proof of valid work searches consistent with said workers’ compensation disabilities.
Reimbursement for causally related prescription costs and mileage are available subject to limitations found in the WCL, WCB rules and case law. At the time of this writing, mileage reimbursements are payable at 55.5 cents a mile. Mileage reimbursement rates have changed over time and are controlled by the date of the service as documented in the rules and regulations of the WCL. You are permitted to receive such reimbursements for traveling to and from those health providers handling your case as well as for transportation costs associated with examinations conducted and set up by insurance companies monitoring your case. Transportation costs to and from the court or your attorney are not reimbursable.
Covered medical prescription costs may be reimbursable if you comply with the procedures set out in the act but primarily must be documented as “medically necessary”. Such products and devices must be requested by your health provider and are subject to challenge if not medically necessary. Routine procedures are detailed in the Medical Treatment Guidelines, WCL and WCB rules and regulations as well as procedures for obtaining such services but, may be reimbursable if approved by the insurance provider in advance or after board direction.
Health provider are not permitted to charge and receive payments for causally related medical services from workers’ compensation claimants. If any such payment is made, the payment is not reimbursable. If such a payment is made for a compensable claim, it is illegal and not enforceable.
If your employer has made advance payments for causally related care, reimbursements can be directed by the WCB. In addition, various payments made under contract or state law in certain circumstances and subject to contract documents may also be reimbursable to the entity making the payment. If a non-employer and non co-employee is negligent and the cause of the injury; then they could be found to be ultimately liable for all compensation costs in the case subject to the amounts contained in the negligent or malpractice action. This is known as a third party case. As such, the negligent party and its insurance provider can be compelled to reimburse the workers’ compensation provider who has already paid or create a credit to the benefit of the compensation provider to future obligations equal to the amounts contained in the third party case subject to case law regarding apportionment issues. Detailed discussion on these issues are contained in the “Kelly” and “Burns” cases and their progeny. ( See standard disclaimer as noted below.)
Under the present Rules and Regulations as promulgated by the WCB as exemplified by the latest Medical Treatment Guidelines ( MTG ) effective December 1, 2010 injuries effecting arms, knees backs and necks are described in a detailed 200 page document available to all individuals participating in the workers compensation system . This document tries to provide and permit standard medical practices for many types of medical conditions. When treatment or conditions are not found or fully handled in the MTG, the health provider may file a variance to the MTG and then procedural requirements exist to eventually resolve any dispute. The question arises as to how these variances should be evaluated. The present system permits either medical arbitration or WCL judges review. When the question goes to a law judge, the difficulty develops as to what is the medical basis that the judge can use to review and decide such issues. On a simplified approach the judges can rule based upon whether the health provider has met their burden of proof. When this means is there any evidence submitted then the judge has no problem making a decision. When the issue is comparing medical opinion on reasons for one type of medical form of treatment over another; a strong complaint can be made that the judge is not legally competent to give or evaluate such medical opinion. They should be able to hear the reasons presented but do not have the medical expertise to weigh one opinion over another. If the procedure is not prohibited by the guidelines and a health provider can explain why such a procedure is appropriate consistent with present medical custom and usage then only an impartial medical expert should be used to resolve the dispute not a law judge. This is the very nub of the problem with the medical guidelines as they presently exist., The issue gets murkier when only one side provides a medical opinion from a licensed medical provider. We’ll have to see how this develops as more cases are presented and litigated.
The Compensation Law, according to Legislative History, was designed to provide injured workers with relatively quick wage replacement payments and treatment for causally related injuries in exchange for giving up claims of negligence against the employer or coworker. It was expected that this would eliminate delays due to extensive litigation. Somewhere along the line of cases and applications of the law, contested cases became the norm on the very issues of compensabilty and medical care. This has been made more devastating by the Workers’ Compensation Board’s use of the Medical Treatment Guidelines effective December 1, 2010.
Recent statistic show more than 250,000 variance applications have been filed with the WCB, contesting the restrictions and interpretations of the Medical Treatment Guidelines. This contest has back logged the hearing process and presently clogs the system. Only so many cases can be heard and processed by the WCB at a given time. The State Legislature, as stated earlier in this blog, has been grappling with this problem and beginning last summer, has indicated a bill would reach the Governor’s desk soon. At this time, only the State Assembly has approved legislation limiting the retro-activity of the Medical Treatment Guidelines referenced above. We await further governmental action on this issue.
Our Primary emphasis is handling WCL cases in Nassau and Suffolk Counties for injured long island workers. Eliot Levine and Associates is a law firm that handles Workers’ Compensation cases on Long Island. We prefer to attend hearings on cases in Suffolk County and Eastern Long Island. Our Web page is longislandworkers.com. We accept clients who live in the surrounding areas of Hauppauge, Smithtown, Commack, KingsPark, Huntington, Huntington Station, Brentwood, Islip, C.I., Central Islip, Patchogue, Port Jefferson Station, Port Jefferson, Shirley, Ridge and Riverhead to name a few. We readily represent workers, before the Workers’ Compensation Board at all WCB hearing points on Long Island.This has taken us to Nassau, Suffolk and Queens Counties. Over the years, the WCB has maintained various hearing points in Hempstead, Bay Shore, Hauppauge, Medford, Patchogue, and Riverhead. Such hearing points are subject to change and we intend to continue covering all such hearing points as they present themselves. Whether you live in one of the above locations or not, we are interested in representing you on any New York State Workers’ Compensation case should you retain our firm. In special situations, we also represent uninsured employers before the WCB. In addition to the above, we represent injured or disabled workers who, because of a total disability, can not return to work for more than a year for claims under the Federal Social Security Disability Law.
In New York State , the WCL is the statute that gives exclusive jurisdiction over all workers’ compensation cases to the Workers’ Compensation Board. No civil court has the legal right ( jurisdiction) to determines the rights and responsibilities of the parties under or out of the the work place setting. In fact, case law requires such other legal bodies and courts to defer to the interpretations of the WCB unless a specific issue or claim is appealed to the Appellate Division of the New York Supreme Court , Third Department. These other bodies lack authority over these matters and any action to bring review before them are subject to dismissal for lack of subject matter jurisdiction. This is known as exclusivity of jurisdiction. In its’ simplest form, parties to the workers’ compensation case are the claimant, ( injured worker) and usually the employer who are permitted to obtain legal representatives to appear and represent their issues before the WCB. Additional parties may also be added, as required, due to complexity of issues presented.
Workers’ Compensation protects workers who develop medial or psychological difficulties or ailments from long time exposures derived from the workplace. Such conditions may develop into occupational diseases when they grow out of or from the work environment and usually occur over extended periods of time. This does not mean that just because you discover that you have a medical problem while you were at work that it is compensable. An occupational disease must be a condition that develops from the exposure at work and be normally associated with the specific type of job activity that you perform regularly over time, “nature of the work” is a term normally associated with such claims. One time exposures are normally considered accidents. Repetitive exposures create a basis for claims of occupational diseases.
Some occupational diseases are lung ailments derived from slow acting dust diseases, carpal tunnel conditions associated with typing, eye or neck problems caused by constant use of computer screens, knee injuries for carpet installer using kick devices. In short; to have a proper claim, the condition must be developed from repetitive activity, not a one time episode. If you notice a one time episode it is more readily established as being caused by the one time event at a specific time and place, hence an injury. Occupational diseases are more indefinite as to a specific time of the occurrence or time constraints but , filing for and establishing successful claims are still controlled by special time limitations as found in the WCL. Ultimately, regardless of the condition, evidence is still required to prove causal relation. Such exposure must be supported by medical / expert opinion to support the claim. Not all doctors readily associate the presenting symptom with a longitudinal exposure. Everyone can immediately understand that a back, leg or arm injury can occur from a slip and fall. It becomes more difficult to understand and appreciate the time line associated with underlining occupational exposures.
For these types of claims as in all Workers’ Compensation claims, it is best to consult a legal representative for detailed advise. Hence as stated throughout these discussions, no attorney client relationship is established by these blogs and all such discussion is limited by my Disclaimer found throughout these articles.
There is no reguirement under the WCL for you to be represented by a lawyer. You can represent yourself. Therefore, technically, you do not need a legal representative. The reality of the process illustrates that the insurance companies are either represented by lawyers or company hearing representatives who are trained to protect the rights and funds of the insurance company. The WCB is the trier of fact and interpreter of the law. When you are not represented, this becomes a one sided process. Even though the compensation law was set up for the judges to review facts presented and if possible give some balance to the case before them; time constraints and other realities of the hearing process along with the ever escalating rules and regulations existent in the Workers’ Compensation process prevent or retard unrepresented claimants from getting an equal chance. Some statistics have been presented that conclude that represented claimants obtain higher benefits then those individuals left without proper representation. The WCL has become a highly technical process and those individuals not fully informed and knowledgeable of its twists and turns (sinews) can suffer delays if not worse.
Under the Workers’ Compensation Law (WCL) there is a precise section of the law that permits final resolution of your claim for indemnity and medical benefits.This section is known as Section 32 of the WCL. It is a formal agreement, presented to the WCB where the parties resolve all issues and is not subject to an appeal by any side. ( ie., any party). In some but not all cases, all rights including medical responsibilities for future causally related problems / care are eliminated. Since the WCL was created as the exclusive forum to resolve and bring claims for on the job injuries or occupational diseases caused by the work environment; the WCL does not permit unintended waivers of the protections under the WCL. Since a section 32 settlement alters the parties rights; the WCB does not permit these rights to be waived or modified lightly.
Therefore, a section 32 claim is presented in writing and attested to by the parties before the WCB in a formal hearing setting. The Workers Compensation Board requires the claimant to be questioned about the content of their settlement and their understanding of same. The trier of fact , usually a law judge, has to determine whether the claimant and all parties understand the full implications of such an agreement. The law judges are given wide latitude in evaluating whether the claimants are fully aware ( cognizant) of the significance of the settlement agreement. The formal determination of the WCB requires a 10 day cooling off period after the presentation of the settlement to the trier of fact ( usually judge) before the agreement can be published and becomes final and binding.
At the present time, when you want to settle your case by way of sec 32, future medical costs based upon past treatment and prescription usage can be subject to review by the Federal Government for those individuals on Medicare or who are Medicare eligible within 30 months of the settlement. This review is known as obtaining CMS approval. Due to the back log of cases, such CMS review and approval has been taking more than 180 calendar days after formal submission for approval has been made to the agency authorized to make such approvals.
As stated throughout this blog all cases are different and require detailed discussion with your legal representative and therefore this blog should be read in such context and the Disclaimer found throughout. These discussions are just that , discussion for educational purposes on general areas and are not case specific.
Generally speaking, once your compensation case has been established, you can receive indemnity benefits and reopen virtually closed cases for 18 years from the accident or incident date and reopen for medicals benefits forever. This has been modified by wcl legislation effective for cases beginning 2007. These long term issues are subject to specific conditions and terms contained in the WCL. Some of these rights are dependent upon findings of permanency. If you have a permanent partial or permanent total condition, your indemnity benefits can continue subject to specific limitations found in the WCL. If you return to work, certain kinds of cases permit the WCB to grant a specified monetary award. These are usually known as schedule loss of use awards or awards for periods of time where wage loss occurs. In other cases, you may even be classified as having a causally related permanent condition which may entitle you to continuing indemnity and medical benefits subject to the modification made in 2007. If your case has not been established or properly filed, special time periods control. Generally, a case must be filed within two years from the date of the incident and notice of the incident must be given to your employer within 30 days from the incident. All cases require a causal connection exist before benefits of any type can be established. Evidence of such a causally connection is contained in the reports and opinions of a medical provider. The opinions of your health provider are contrasted with the opinions of health related witness for used by your employers’ benefit provider. This is usually their insurance provider
Please note my disclaimer found throughout these blogs. This blog is merely provided for educational and general discussion purposes. It is not specific legal advise on any specific case. For any formal advise; a retainer agreement and face to face representation should occur. All situations have nuances that are fact and law dependent and can only be truly reviewed in such a relationship
Eliot S. Levine & Associates Attorneys at Law 1455 Veterans Highway Islandia, New York 11749 Telephone: (631) 234-5484 Fax: (631) 234-5561
Email: e.levine@redsail2. , longislandworkers.com title, www.LongIslandWorkers.com/Disclaimer