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.

Does "Zamora" effect Permanent Partial Cases

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.


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

Are there any reimbursements in Compensation?

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.)


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 do I get my injuries treated ?

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.


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

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