Workers’ Comp

Why do I need an attorney in a Workers’ Compensation claim?

Although you are not required to have an attorney, having someone who understands the legal proof necessary to establish a Workers’ Compensation claim is extremely helpful.
Our firm has successfully represented thousands of disabled claimants on both basic claims, before Workers’ Compensation Law Judges, as well as appeals to the Workers’ Compensation Board of Commissioners. We combine a complete knowledge of the law with an understanding of the requirements demanded by individual judges. We are available to discuss potential claims and there is no fee for a consultation.

Who is eligible for Workers’ Compensation payments?

Any worker in the State of New York if injured on the job, where such injury arose out of and in the course of employment, is entitled to claim payment of medical bills and cash payments, based upon the resulting disability. Occupational claims, such as repetitive stress injuries, cardiac claims, dust disease claims, and virtually every condition that can be caused by an on-the-job injury or exposure, would be potentially viable under the New York State Workers’ Compensation Law. The State Law covers every worker in the state except the Uniform Services of the City of New York, specifically Police, Firefighters, and Sanitation Workers. Civilian employees of the Police Department, Fire Department or Sanitation Department are covered under the New York State version of the law. New York City has its own separate version.

What are the rates in Workers’ Compensation?

Presently, the maximum rate an injured worker can receive is 2/3rd’s per week as an average weekly wage, prior to their injury.

Are the Workers’ Compensation payments guaranteed?

No. The determination of disability is an adversary process between yourself and the insurance company or self-insured employer or its servicing agent.

Total disability is two-thirds of your average weekly wage or $400, whichever is less. Then there are intermittent levels of partial disability characterized as “ mild”, “moderate” and “marked” disability. There is an active industry of doctors examining on behalf of insurance carriers for the purpose of describing your disability in a way that would cause a reduction in your payments and treatment and tests authorization.

This is one of the many reasons we strongly recommend you have an attorney representing your interests in proceedings before the Workers’ Compensation Board.

How long do I have to give my employer notice of injury?

The law gives you thirty days to give formal notice to your employer of an injury or illness which arises from, or you believe to have arisen from, your job duties. This requirement is often “excused,” where the lack of notice “did not prejudice the employer’s ability to investigate the claim.”

Is there a time limit for filing a claim?

Yes. Two years from the date of accident is the maximum delay that would still allow a claim to be viable. Some form of notice of claim must be given not to the employer, but to the Workers’ Compensation Board, within two years of the accident or onset of illness. In those types of illnesses which are slow starting, the statute of limitations is two years from when you knew or should have known that your illness arose out of or in the course of your employment. Giving notice of accident or injury to your employer does not mean you have a compensation claim.

What do I get for injuries to my arms, legs, vision and hearing?

The legislature has provided a “schedule” of benefits in the Workers’ Compensation Law, for injuries to your extremities (fingers, toes, hands, feet, arms, legs), and also for the loss of hearing and loss of vision. The “value” of each of these extremities is different, and is paid in “weeks of compensation.” For example, if your fifth finger is amputated, having a “schedule” value of 15 weeks of compensation for 100% loss of that finger, you would receive 15 weeks of compensation at your “rate of compensation,” or compensation for the actual time lost while disabled, whichever is greater.

Should I trust the insurance company?

In our opinion, absolutely not. The company may assign a “Nurse Case Manager,” who may contact you to go with you to your doctor, and in some cases, try to intimidate your doctor into reducing his requests for test and treatment. The Nurse Case Manager, while in theory being a title which is meant to offer you assistance, from a practical standpoint, such persons often act as investigators for the insurance company, and in our experience, often interfere with our client’s ability to obtain proper monetary and medical benefits. Likewise, the “Claims Examiner” is not your friend; he is a person hired by the insurance company to pay as little as possible within the limits of the law.

Must I sign forms and speak to investigators?

Absolutely not. We advise all of our clients not to talk to the carrier personnel, when it is the insurance carrier who has contacted them. There’s nothing wrong with a compensation claimant calling the insurance carrier to determine what happened to a check which is due, etc. But if the insurance carrier initiates the conversation, we recommend you refer them to your attorney, who in most cases, will not allow you to speak to them.

Likewise, any forms sent to you by the insurance carrier, should be filled out and sent to your attorney, so that your attorney can determine if there is a need for the carrier to have this information. This includes medical releases, job histories, family medical histories, and all forms they send you. Fill them out, if a signature is called for, sign it, and then send it to your attorney to determine if the insurance carrier should have the documents.

Are any injuries not covered by the Workers’ Compensation Law?

Yes, but examples are rare. Certain “psychic trauma” arising from personnel decisions at your company may not be covered. But for the most part, even psychic trauma is covered.

Is there a waiting period before I am eligible for benefits?

On initial periods of disability there is a one week waiting period before you are due money benefits. However, if you are out of work and disabled for more than two weeks, the waiting period is waived retroactive to your first day of medical treatment for disability. Medical benefits have no waiting period.

When does coverage begin?

Inside workers are covered from the time they arrive at work until they leave. If you are an outside worker, you may be covered “door-to-door,” from the time you leave your home until the time you enter your home in the evening. If you are on a trip for your employer, you are covered if you are injured or taken ill.

What happens if I die due to an on-the-job injury?

Should you die due to an on-the-job injury or illness from your employment, your widowed spouse and children who are minors may be entitled to a death benefit. Such benefits would be payable until the children are legal adults and until your spouse re-marries.

Who chooses the doctor I must see?

Except with certain employers who have an agreement with the Union to opt-out of the Workers’ Compensation entitlement to use any doctor, you may choose any doctor in the State of New York, who is authorized by the Workers’ Compensation Board to treat Workers’ Compensation cases. This includes most doctors in the State. Under special circumstances, you may be entitled to use specialists out of state or doctors in the locality where you live, should you move out of state.

What types of doctors may I see?

Medical doctors, osteopaths, chiropractors and certain psychologists are all authorized to treat under the Workers’ Compensation Law. A psychologist must be at least a PHD, and you must be referred to that person by one of your treating physicians, a medical doctor. Chiropractic is covered; Podiatry is covered; the services of a Physical Medicine and Rehabilitation Specialists (Physiatrist), etc. Any type of Specialist who accepts Workers’ Compensation patients is covered under the law. This includes Cardiologists, Pulmonary Specialists, and virtually every specialty in medicine is acceptable.

How long am I entitled to medical care?

Although certain cases are settled and your right to medical care is given up in exchange for a settlement from the insurance company, usually medical care is for life, for those parts of the body, “established” as covered by your Workers’ Compensation claim.

How is my attorney paid?

All fees are determined by the Workers’ Compensation Board. Your attorney will make an application to the Board for a fee, based upon services provided of the work done on the case, and the results obtained in terms of monetary compensation and medical care. The Administrative Law Judge, and ultimately the Workers’ Compensation Board, must approve any such fee.

What else do I need to know about Workers’ Compensation and filing a Workers’ Compensation claim?

There is literally too much information to be given to you to present it here.

The “ins and outs,” of the Workers’ Compensation Law are, in our opinion, best handled by attorneys or Licensed Representatives who have been trained to deal with the intricacies of the law. Virtually every decision of an Administrative Law Judge at a Workers’ Compensation hearing is appealable by the party unhappy with that decision.

The insurance defense industry makes a great deal of money fighting claims. This is what they do for a living. On the other hand, claimants counsel, such as our firm, make our living defeating the insurance carriers’ attorneys wherever possible and we only make money if we are successful in prosecuting your claim.

There is much more for you to know; about hearings; about what to do if the insurance company fights your case by denying that you are eligible for Workers’ Compensation. You need to know your rights for reimbursement for out-of-pocket medical and transportation expenses. You need to know that you should never pay a health provider or hospital for treatment in connection with an on-the-job injury or illness.

You need to know what to do if your head, neck, or back are injured. What if you have a heart attack or a hernia, or a stroke, or broken ribs, or other trunk-of-the-body ailments caused by your work?

You need to know the nature and quality of medical reports submitted in your case by your health care providers. You need to know the dangers of putting your job and “voluntarily withdrawing from the labor market;” something that could disqualify you for future benefits.

You need to know not to just, “retire,” from your job because of your injuries, but to do it in a certain way and manner, with the advice of your doctor and your attorney, so that your retiring does not, “withdraw you from the labor market.”
There is so very much more that comes up in almost every Workers’ Compensation case. What do you do when the insurance carrier assigns an investigator to follow you around; what do you do if the insurance carrier sends you to one of their defensive medical doctors?

These and many more issues represent the intricacies of the Workers’ Compensation Law and the prosecution of a claim.

It is, for this reason, we feel you should have an attorney with you on every claim, whether it is our firm or another.

Social Security

Why do I need an attorney in a Social Security Disability Claim?

Although you are not required to have an attorney, having someone who understands the legal proof necessary to establish a Social Security claim is most helpful. The fact is that Social Security Disability claims are, for the most part, initially denied.

Our firm has successfully represented thousands of disabled claimants on both the initial application, as well as Appeals, before Administrative Law Judges of the Social Security Administration. We combine a complete knowledge of the law with an understanding of the requirements demanded by individual judges. We are available to discuss potential claims and there is no fee for a consultation.

In what geographical areas do you practice?

Our practice covers Long Island and New York City for the most part, but we will continue to represent you should you move during dependency of your claim. Should you move to an area too far a field for us to litigate your case, we will recommend competent counsel in your geographic area.

Who qualifies for Social Security Disability Benefits?

As a general statement, we recommend not applying for Social Security Disability Benefits until you have been out of work for six months. At that point, if you have been gainfully employed for sufficient years and at sufficient funds, you may be considered eligible for SSDB. Your disability has to be severe enough to meet the criteria of the Social Security Administration, and we will advise you of your likely eligibility and potential for success in your claim.

If your claim is successful, you will become eligible for monthly cash payments and members of your family may also qualify. After two years of payments, you will also qualify for Medicare health insurance benefits.

Remember that your period of disability (out of work), must be expected to last at least 12 months, for your claim to be viable.

Is there an age requirement for receiving Social Security Disability Benefits?

No. Younger individuals may get Social Security Benefits based on the disability. If you have a history of working, but can no longer do the job because of an illness or injury, you may be eligible to receive Social Security Disability Benefits.

Is there a time limit for filing a claim?

No. As soon as you are convinced you’ll be out of work for a 12-month period, we suggest you contact us for an initial discussion; and at the point where you are out of work for six months, we will proceed with your claim if you wish.

Does every injury or illness qualify me for Social Security Disability?

No. To qualify for Social Security Disability Benefits, the Social Security Administration has defined the requirements as having a physical or mental impairment that keeps you from doing any substantial work for at least a year, or a condition or illness that is expected to result in your death.

If I am disabled under other benefit plans, such as Workers’ Compensation, does that mean I will qualify for Social Security Disability Benefits?

No. The definitions of disability are different between various government programs. Someone who has been “classified” as having a permanent, partial disability, under the Workers’ Compensation Law, may nonetheless be considered totally disabled, under the Social Security Disability Benefits law. This is why we so strongly recommend that you speak to an attorney, who practices in the area of Social Security Disability Benefits, to determine the viability of your claim.

Is there a time limit for applying?

No, but remember that the longer you don’t file, the more benefits you may lose by delaying.

How are you paid for your services?

Unlike some Social Security Disability law firms, we do not charge “up front” for taking your case or filing your claim. We take cases on a contingency basis. This means that unless we win your case, there is no fee. The Social Security Administration approves all attorneys’ fees and, in most cases, they approve a fee of 25% of any benefits due retroactively, up to a maximum fee of $5,300, whichever is less. The Social Security Administration will deduct our fee from your award and send it to us. Absent an error by the Social Security Administration, the client does not pay us directly.

What is the usual timeframe for processing a Social Security Disability claim?

It will usually be five or six months before the Social Security Administration decides on an initial claim, and then an additional six months to a year before there is a hearing before a Judge (if Social Security has denied your claim initially).
With an attorney, there is the potential for considerable shortening of the time periods on Appeal.

What will you do if my claim is denied?

We will file an appeal and request a hearing before the Social Security Office of Hearings & Appeals. Statistics issued by the government indicate you have a greater likelihood of winning your appeal, when you appear before the Judge with an attorney.

How long do Social Security Disability Benefits last?

If you are found to be eligible, your benefits will last for as long as you are unable to work and remain disabled, or until you become eligible for Social Security retirement payments. Your claim for Social Security Disability benefits will not deprive you of your old-age Social Security Benefits. If you are out of work prior to applying for old-age benefits, and do not prove that you are disabled while out of work, your later retirement benefits may be affected.

What else should I know about applying for Social Security Disability Benefits?

You should be aware that you can collect Social Security Disability Benefits, Workers’ Compensation benefits, and long-term disability payments from a long-term disability policy at the same time. You should be also aware that the long-term disability benefits provider may offer to help you with your Social Security application at “no cost”. However, sometimes they don’t ask for sufficient information due to the many complicated Social Security forms, and the Social Security Administration receives less than fully accurate information. This could ultimately jeopardize your entitlement at a later date to long-term disability benefits, or to Social Security Disability Benefits. You should have an attorney helping you.

Should I expect the finding of eligibility to be permanent?

Unfortunately, the Social Security Administration reviews most disability claims at three-year intervals to be satisfied that you remain disabled.

We continue to represent those clients who we have helped with their initial application at the time of such reviews.

There is never a fee for a consultation. Contact us for an interview to discuss your claim.

NYSLRS World Trade Center Presumption FAQ’s

Definition of Presumption

If an individual’s pre-employment records/medical records before 9/11 don’t have a diagnosis of a “qualifying condition” and if they worked at the World Trade Center disaster site-particular to the areas outlined below-NYSLRS can “presume” the individuals diagnosis stemmed from the work they did in the aftermath of 9/11.

World Trade Center qualifying locations, as defined by the NYS Comptroller’s Office:

  • The World Trade Center site (defined as the area below a line starting from the Hudson River and Canal Street bearing east on Canal Street to Pike Street, continuing south on Pike Street to the East River; and extending to the lower tip of Manhattan);
  • The New York City (NYC) morgue or any temporary morgue;
  • The Fresh Kills Landfill; and
  •  On the barges that ran between Manhattan and the Fresh Kills Landfill.

 

Do I still qualify if I worked at locations different from those in Question 1?

The guidelines to qualify for presumption benefits are based on:

  • qualifying locations and/or qualifying duties.
  • The length of time/period of time which duties were performed.

Per the NYS Comptroller’s Office, if an individual performed any kind of clean up duties during the first two-day period after the first plane crash, or worked a cumulative 40 hours from 9/11/01 to 9/12/02 at one or more of the locations in Question #1, they meet the qualifications for presumption. They also are eligible if specific duties were performed at particular NYPD, FDNY, or EMS locations during the first 24 hours of clean up operations, or fixed cars/equipment effected by debris, whether or not it was done at one of the locations in Question 1.

 

Does this cover accidental disability benefits?

The WTC Presumption Law only provides Presumption Benefits. However, if an individuals retirement plan has accidental disability benefits, and they were deemed permanently disabled, this law could make them eligible for WTC Accidental Disability Presumption. There is no deadline for the WTC Accidental Disability Presumption form (Form RS6047-W), as long as they file a World Trade Center Notice on/prior to 9/11/2018, as required by the NYS State Comptroller’s Office. If an individual has already retired with accidental disability benefits, they are not eligible for other benefits.

What is the filing deadline?

The deadline was recently extended to September 11th, 2018. An individual who wants to file for Presumption must fill out both the Presumption form (RS6047-W) and the Notice form (RS6047-N) by 9/11/2018.

What about individuals who retired before 9/11?

Those who retired prior to 9/11 are not eligible.

If I opt for a Partial Lump Sum payment, can I still file for a reclassification of benefits?

Yes.  Please take note an individual must pay back the Partial Lump Sum along with accrued interest, and that this only applies to accidental death benefits.

If an individual dies as a result of their condition, what does this provide for their beneficiaries?

Beneficiaries could potentially change disability retirement benefits into WTC accidental death benefits if the person they are a beneficiary of passes away within 25 years of the day they retired and if that same person filed a WTC Notice by 9/11/2018. This will depend on the policies in the respective individual’s retirement plan concerning their beneficiaries.