Why does it take so long to get a hearing?

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.



Eliot S. Levine & Associates
Attorneys at Law
1455 Veterans Highway
Hauppauge, New York  11749
Telephone: (631) 234-5484
Fax: (631) 234-5561
Email: e.levine@redsail2.com
www.LongIslandWorkers.com
DISCLAIMER

Where does Eliot Levine and Associates Practice?

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 www.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.


Eliot S. Levine & Associates
Attorneys at Law
1455 Veterans Highway
Hauppauge, New York  11749
Telephone: (631) 234-5484
Fax: (631) 234-5561
Email: e.levine@redsail2.com
www.LongIslandWorkers.com
DISCLAIMER

Who has jurisdiction over a compensation case?

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.


Eliot S. Levine & Associates
Attorneys at Law
1455 Veterans Highway
Hauppauge, New York  11749
Telephone: (631) 234-5484
Fax: (631) 234-5561
Email: e.levine@redsail2.com
www.LongIslandWorkers.com
DISCLAIMER

What is an Occupational disease?

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.


Eliot S. Levine & Associates
Attorneys at Law
1455 Veterans Highway
Hauppauge, New York  11749
Telephone: (631) 234-5484
Fax: (631) 234-5561
Email: e.levine@redsail2.com
www.LongIslandWorkers.com
DISCLAIMER

Do I need a Lawyer?

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.

Sec 24 of the WCL, details how and under what circumstances your representative can be paid. No payment is ever permitted directly from the claimant to the representative. Fees are earned based upon results and subject to an evaluation of services rendered by the trier of fact ( usually a Judge) on a case by case basis. Under these circumstances, no payment for attorneys services can be made without WCB approval. Attorneys fees for representation comes out of and are deducted from successful awards of indemnity benefits. Claimants are equally not responsible for payment to health providers for causally related health related services. These services are also regulated by the WCL and the Medical Treatment Guidelines and their interpretations by the WCB and Court System. 

As stated before,  please note formal Disclaimer found throughout these discussions.


Eliot S. Levine & Associates
Attorneys at Law
1455 Veterans Highway
Hauppauge, New York  11749
Telephone: (631) 234-5484
Fax: (631) 234-5561
Email: e.levine@redsail2.com
www.LongIslandWorkers.com
DISCLAIMER

What is a sec 32 settlement?

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.


Eliot S. Levine & Associates
Attorneys at Law
1455 Veterans Highway
Hauppauge, New York  11749
Telephone: (631) 234-5484
Fax: (631) 234-5561
Email: e.levine@redsail2.com
www.LongIslandWorkers.com
DISCLAIMER

How long can I collect compensation?

Generally speaking, once your compensation case has been established,  you can receive indemnity benefits for 18 years and reopen your case for medicals benefits forever. 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. 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 with 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 your employers' benefit provider.

As continuously stated, 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
Hauppauge, New York  11749
Telephone: (631) 234-5484
Fax: (631) 234-5561
Email: e.levine@redsail2.com
www.LongIslandWorkers.com
DISCLAIMER

How much money do I get from my Compensation case?

Your indemnity payment for the condition causing your compensation injury or disease is dependent upon your earnings from the one year immediately preceding the date of your injury or occupational disease. This is used to establish what is known as your average weekly wage ( AWW) . Once this is determined the maximum indemnity weekly benefit under Workers'  Compensation in New York can be no more that 2/3 of that AWW. These maximum indemnity payments are limited to weekly maximums dependent upon the year of the injury. These rates have changed over the years and are specified in the statute. The maximum weekly benefit rate a disabled worker can receive presumes the worker is out of work and totally disabled. Once you go back to work or your causally related condition improves, your rate of indemnity per week can be reduced. This is usually resolved after evidence is presented and a formal decision is rendered by the Workers' Compensation Board., ( WCB).  If you are receiving benefits before or without a formal award, such payments are subject to the New York State Workers' Compensation Law and are somewhat voluntary. You are best protected by a formal decision of the WCB which relies upon medical evidence related to the case.

Under various situations, dependent upon the date of your compensible disability, your right to continuing benefits remains. Your right to medical care subject to the WCL continues but is limited by the Medical Treatment Guideline and their interpretations.  Your right to continuing indemnity payments continues subject to the type of case, condition and findings on the case. In some instances,  payments can continue forever but are limited by the requirements spelled out in the WCL and court cases interpreting the WCL. As stated throughout this blog, each case is different and all specific questions regarding your case should be discussed with your legal representative. ( see disclaimer) .


Eliot S. Levine & Associates
Attorneys at Law
1455 Veterans Highway
Hauppauge, New York  11749
Telephone: (631) 234-5484
Fax: (631) 234-5561
Email: e.levine@redsail2.com
www.LongIslandWorkers.com
DISCLAIMER

Is my comp taxable?

Generally speaking,  New York Sate Workers' Compensation Benefits are not taxable. There are situations where because you receive combinations of benefits, such as Social Security Benefits and New York State Workers' Compensation Benefits,  that may effectively create a taxable event.  If your other form of benefit is reduced by the compensation payment this can in some instances create a tax on the amount of the credited reduction. It is best to consult your tax adviser when considering tax questions.


Eliot S. Levine & Associates
Attorneys at Law
1455 Veterans Highway
Hauppauge, New York  11749
Telephone: (631) 234-5484
Fax: (631) 234-5561
Email: e.levine@redsail2.com
www.LongIslandWorkers.com
DISCLAIMER