Governor Cuomo Proposes Major Budgetary Changes Affecting Workers’ Compensation

New York Governor Andrew Cuomo released the 2016 Executive Budget in January, which proposes both procedural and substantive changes to workers compensation law. These proposals, if adopted, would greatly impact the benefits and due process rights of injured workers.

One proposal eliminates the Aggregate Trust Fund (ATF) deposit requirement. Currently, the ATF allows permanently partially disabled workers to receive fair settlements, albeit lower than before a 2007 reform, by requiring insurers to deposit money into the ATF. If the proposed elimination of deposit requirements to the ATF is adopted, permanently disabled workers, widows, and dependent children will be greatly affected by the reduction of benefits.

Another budget proposal aims for major reform on how judges are assigned to workers’ compensation cases. Currently, claimants have the right to have their case heard before a single judge. Seeking to eliminate this, the new proposed budget would allow any judge in New York to decide claims whether the case was before them earlier in the proceedings or not.

An additional procedural change proposed concerns the appeals process. Currently, if a worker is denied a claim by the Workers’ Compensation Law Judges, the claimant may appeal to an appeals panel. The 2016 proposed budget will replace the panel with a single commissioner or attorney who would decide the appeal. This would deny claimants the due process right to have their appeal heard before multiple individuals instead of just one.

With budgetary demands, and possible legal reforms, the workers’ compensation system can be confusing and complex. Seeking the advice of an experienced attorney is essential to understanding your rights under workers’ compensation law. The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP handles workers’ compensation claims throughout the five boroughs of New York City, including Manhattan, Brooklyn, Queens, and the Bronx, in addition to both Nassau and Suffolk Counties on Long Island. For more information please call (866)-557-7500 or click here to speak with our office.

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Social Security Disability Insurance Becomes Subject of Reform

Small changes to Social Security Disability Insurance (SSDI) are expected, but are just not going to be enough, according to U.S. Senators James Lankford (R-Oklahoma) and Joe Manchin (D-West Virginia). In a letter they wrote last week, the alterations in the budget agreement constructed last year will only be like “band-aids” for the program’s fiscal problems. The senators argue that fundamental changes need to be made in order to provide a system that will help those in need.

Those in agreement with Senators Lankford and Manchin believe some of the issues with SSDI are fraud, overpayment, the weaknesses of the application process, and the relationship between SSDI benefits and other federal programs in place. Supporters of this view believe the remedies for these issues include the reorganization of the determination process to be more efficient and accurate, and recipients of SSDI could be given more support to find other sources of income and employment. Furthering this view, the Social Security Trustees stated that “reallocation of resources in the absence of substantive reforms might, on the other hand, serve to delay DI (Disability Insurance) reforms and much needed corrections for OASDI (Old Age, Survivor and Disability Insurance) as a whole.”

Others point to how the U.S. government has historically “borrowed” money from Social Security without paying it back. It is reported that former President George W. Bush withdrew approximately $708 billion from the Social Security Trust Fund while he was in office and it has not yet been replenished. Additionally, the trust fund is managed by the Department of the Treasury by investing in special issue government bonds. Some question if the government can make good on these bonds, which if cashed in, may lead to social security solvency.

Additional ideas on how to improve solvency with the Social Security Trust Fund include increasing social security taxes (from the current 6.2%), lifting the payroll cap (so that social security taxes apply to total income instead of the current $118,500.00), raising the retirement age (67 for people born after 1959), and a means-test phasing out retirees depending on their income.

The issue of probable insolvency is of concern to residents of New York in addition to the already daunting application process. Approximately fifty-seven percent of New York disability claims are denied by the Social Security Administration. Once there is a denial, an applicant in New York moves on to the hearing stage, directly bypassing a reconsideration request. In most states a reconsideration request is the first step after the initial denial. A “reconsideration” is a request for a claims examiner at Disability Determination Services to review the denial. This step has been eliminated in the state of New York. Having the hearing, though, typically takes between 274 to 612 days. The timeframe depends on the applicant’s filing location. For example, in Brooklyn offices, the average is 274 days, whereas, in the Bronx office, the average is 532 days. In Jericho it is 284 days and in Queens it can be 370 days.

Considering the fiscal constraints facing the program, along with the length of the application process, it has never been more important to have an attorney assist you with disability benefits applications from the time of filing. The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP handles social security and disability claims throughout the five boroughs of New York City, including Manhattan, Brooklyn, Queens, the Bronx, and Staten Island, in addition to both Nassau and Suffolk Counties on Long Island. For more information please call (866)-557-7500 or click here to speak with our office.

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Workers’ Compensation Claim Complexities

Maneuvering through the workers’ compensation claim process can be confusing. Seeking an experienced workers’ compensation attorney can assure you that recent laws and policies regarding claims are not overlooked.

In workers’ compensation cases, it must first be determined whether workers’ compensation law actually applies. The injured worker must fall into specific categories and meet the criteria needed to be considered an employee or an agent of the employer. As with many areas of the law, there are exceptions, such as clergy who are performing religious duties, volunteers at nonprofit organizations, certain foreign workers, employees who fall into an independent workers’ compensation system for their trade, and so on.

Additionally, there are several factors that must be taken into account in determining employee status, including the right to hire and fire the individual, whether there is a right to control (as in an employer-employee relationship), the character of the task performed, and the manner of employee compensation.

After it is determined that the worker is an employee of the company or business entity, multiple steps must be taken in a timely manner. The employee must notify his or her employer in writing about the injury, file a C-3 claim form and mail it to the Board District Office. There are also forms that the employer must submit to the insurance company and the Board within a certain timeframe.

Bennett v. Roman Catholic Diocese of Rockville Centre is an example of the complexities a workers’ compensation case may present. On January 25, 2010, an employee of the Roman Catholic Diocese of Rockville Centre fell from a ladder and suffered serious injuries. The employee was a maintenance worker and not performing religious tasks, so he qualified as an employee. The employee sought medical treatment soon after the injury, filing a claim for his left leg and back. Two years later the claimant started to have new pain in his neck and lower back and had an MRI of his cervical spine. After the MRI, it was recommended that claimant undergo surgery on his cervical spine. The Workers’ Compensation Law Judge found that surgery was barred because the claim arose after the two-year time limit and was only “casually-related” to the claims which were filed earlier on his left leg and back.

Workers’ Compensation Law § 28, requires that a claimant file within a two-year time period from the date of the accident. The MRI and recommendation for surgery occurred in March of 2012, past the two-year time limit. Additionally, the court reviewed the facts and the claimant’s testimony regarding the timely filings and the new pain, and found that they were only slightly related. The New York Supreme Court, Appellate Division for the Third Judicial Department, affirmed the lower decisions and found for the employer based on the procedural timeliness rule.

Bennett v. Roman Catholic Diocese of Rockville Center highlights the importance of following procedures to meet strict statutory deadlines. Employees may not know how future injuries will be categorized by Judges. Skillful workers’ compensation attorneys can better guide employees on which claims to file and how to link future related injuries to original claims. An attorney can help protect your rights and help preserve your coverage should further injury stemming from an accident become known later. The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP handles workers’ compensation claims throughout the five boroughs of New York City, including Manhattan, Brooklyn, Queens, the Bronx, and Staten Island, in addition to both Nassau and Suffolk Counties on Long Island. Call (866) 557-7500 for a consultation.

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