The Great Trade Off New York State Workers Compensation: An Overview

The Great Trade Off

New York State Workers Compensation: An

OverviewBy

Brian M. Mittman, Esq.

[email protected]

© Markhoff & Mittman, PC, 2011 www.markhofflaw.com 1

A Social Pact

• Employees - guaranteed medical care and

monetary benefits - they don‟t have to sue

and can focus on getting better and back to

work

• Employers - won‟t be sued, will improve

safety in the work place, will have clear idea

of their costs (insurance versus judgment)

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The Basics of a Claim

EXCLUSIVE REMEDY WCL Sec. 11 (the no fault provision)

EMPLOYER EMPLOYEE RELATIONSHIP Sec. 2 & 3 (if you look

like, smell like, taste like and employee you are one)

A.N.C.R: The Building Blocks of a Claim

• ACCIDENT WCL Sec. 10

• NOTICE WCL Sec. 17

• CAUSAL RELATIONSHIP WCL Sec 10 & 13


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ACCIDENT WCL Sec. 10

• OUT OF AND IN THE COURSE OF

EMPLOYMENT

• ACCIDENT

• OCCUPATIONAL DISEASEWhether you have had an accident is a question of fact for the trier

of fact (the WCL Judge) - incidents such as horseplay and heart

attacks have been found compensable


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NOTICE WCL Sec. 17

• TIMELINESS - should be in writing

within 30 days, but depending on the

“facts” oral or imputed knowledge is

often enough

• PREJUDICE - if employer has not been

prejudiced by failure to provide notice

then it will not be an issue


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CAUSAL RELATIONSHIP(How medical reports are supposed to be created and by home generally

goverened by Sections 13)

• THE DIAGNOSIS MUST MATCH THE

INJURY: The three most important parts

of a claim:– Medical

– Medical

– Medical

• IMPORTANCE OF MEDICAL

EVIDENCE - there has to be a link!


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AVERAGE WEEKLY WAGE(WCL SEC. 14)

• Once you have shown the building blocks of:– Employer-employee relationship

– Accident

– Notice

– Causal relationship

Then it is time to figure out the benefits - for monetary benefits you must know what the injured worker was making in order to figure out what benefit the worker will receive.


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BENEFITS

• WEEKLY INDEMNITY (2/3 AWW x Lost

Time and degree of disability)

• MEDICAL CARE (What do you need

and the new medical treatment

guidelines)

• DEATH BENEFIT (who collects and

how much)


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BENEFITS (ctd)

• SCHEDULE LOSS OF USE (Permanent injury to an extremity or listed body part)

• REDUCED EARNINGS (Back to work but earning less because of the injury)

• PERMANENT PARTIAL DISABILITY (Its not going away, entitlement to weekly benefits and caps)

• PERMANENT TOTAL DISABILITY (the worst)


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What does an injured worker

get paid?

• Rates of Compensation (Maximum)

– 7/1/1992 to 7/1/2007 $400 maximum

– 7/1/2007 to 7/1/2008 $500 maximum

– 7/1/2008 to 7/1/2009 $550 maximum

– 7/1/2009 to 7/1/2010 $600 maximum

– 7/1/2010 to 7/1/2011 $739.83 maximum

(rates from 7/1/2010 into the future will be

2/3rds of the State Average Weekly Wage)


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Wage Replacement Example

• Construction worker earns $1450.00 a

week.

• AWW = 1450.00 X 2/3 = $966.67

• Workers was injured on 8/1/2010 the

maximum rate was $739.83 per week

so the benefit rate will be $739.83 even

though 2/3rds of the AWW is more.


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HEARING PROCESS

• SECTION 20 - RIGHT TO A HEARING

• Although designed to be simple and no

need for attorney, the current WC

process dependent on filing various

forms, reviewing administrative

decisions and rulings, appearing at

actual hearings before a tribunal, taking

part in „quasi‟-trials and appeals


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HEARING PROCESS

• The best way to describe the hearing process

is to contrast it with the civil justice system. When you are injured and you sue someone your lawyer will build your case piece by piece to prepare for the ultimate day - your day in court.

• In the world of Workers Compensation there is not necessarily a day in court.


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HEARING PROCESS

• WC is a journey where you have many stops along the way, some set backs and some advancement. The ultimate goal is not one day in court at the end of the case, but rather attempting to get as healthy as possible, back to work and the benefits your entitld to along the way and if any, at the end.

• During the course of an injured workers claim you may have a series of hearings, mini trials, depositions and administrative reviews that will determine items such as degree of disability, amount of benefits, right to certain treatment and so forth.


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Types of hearings and

decisions

• Administrative decisions

• Proposed decisions

• Conciliation hearings

• Regular hearings

• Trials - lay testimony

• Depositions of medical experts

• The Medical Treatment Guidelines MG-2

Process!© Markhoff & Mittman, PC, 2011

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Types of decisions

• Notice of decision from regular hearing

or proposed decision from conciliation

and administrative decision

• Notice of Proposed Decision and

Orders of the Chair and Variance

Approvals and other nonsense

• Reserved decision

• Memorandum of board panel decision© Markhoff & Mittman, PC, 2011

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Settlements• Schedule loss of use for extremities


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• Permanent Partial Disability - the great

unknown.

Prior to March 14, 2007 if you had a neck,

back or other type of injury that was not

“schedulable” and you could not return to

work, or returned at reduced earnings then

you could be found to have a permanent

partial disability and entitlement to ongoing

weekly payments.

Settlements


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Settlements (ctd)

• Currently, if you have the same PPD

type situation then you can be found

PPD, but new law says we must

determine your loss of wage earning

capacity, and that will limit or cap the

amount of future indemnity (not

medical) benefits you will be entitled to.


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THE 2007 “BENEFITS CAPS”

• Loss of Wage Earning Capacity - under the 2007 Reforms, anyone found permanently partially disabled for accidents after March 14, 2007 will be subject to a limited weekly beneffit unless they have sustained greater than an 80% loss of wage earning capacity. The number of weeks an injured worker is entitled to is dependent upon the injured workers Loss of Wage Earning Capacity.


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Loss of Wage Earning Capacity

Compensation under this paragraph shall be payable during continuance of such permanent partial disability, but subject to reconsideration…all compensation payable under this paragraph shall not exceed”:

• 525 weeks for loss of wage earning capacity of greater than 95% (10.10 years)

• 500 weeks in cases in which the loss of wage earning capacity is greater than 90% but not more than 95% (9.62 years)





•


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Loss of Wage Earning Capacity (ctd)






• 225 weeks in cases in which the loss of wage earning capacity is 15% or

less (4.33 years)


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Loss of Wage Earning

Capacity• How is it determined - good question. As

noted before, medical evidence drives

everything in workers compensaiton. As of

this lecture the Medical Guidelines Task

Force charged by Insurance Department with

coming up with medical guidelines, while

working diligently, has yet to release its

findings, over two years since signing of the

law.


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ATTORNEY FEES

• Modified Contingent Please Give Me a Fee Rule– Fees must be approved by Law Judge

– Vary by work done, amount of benefit moving and so forth

– Cannot charge client fee and cannot charge expenses

• Currently, if you have the same PPD type situation then you can be found PPD, but new law says we must determine your loss of wage earning capacity, and that will limit or cap the amount of future indemnity (not medical) benefits you will be entitled to.


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Other Issues

• Social Security Disability - if paid into

system, worked 5/10 years, severe

medical condition and out of work or

expect to be out at least one year then

can apply. SSDB covers more than just

your work injury, but depending on your

benefit rate, SSDB could be offset by

what you receive in WC (the 80% rule)


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• NY State/City Retirement Disability

• Private or Group Long Term Disability

• Lawsuit

– Right to lien and credit

– Settle properly or give up future rights


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Return to Work

• Incentives

• Return to Work Programs

• Reduced Earnings

• Discrimination, ADA and EEOC


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Useful Resources

• www.wcb.state.ny.us

• www.nysif.com

• www.markhofflaw.com

• Order a Free New York State Workers

Compensation Consumer Guide at

www.hurtonthejobfeebook.com


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http://www.wcb.state.ny.us/

http://www.nysif.com/

http://www.markhofflaw.com/

http://www.hurtonthejobfeebook.com/

Documents

The Great Trade Off New York State Workers Compensation: An Overview