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.

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