Lawyers in Syracuse, NY | Gary J. Valerino

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

What if My Injury Occurs Off Premises?

Posted by: William Crossett In: Workers Compensation 18 Dec 2015 Comments: 0 Tags: hurt at work, Injured Worker, New York Workers Compensation, syracuse attorney's, syracuse lawyer, syracuse workers compensation

The law providers for Workers’ Compensation benefits for all injuries or illness that arise from or occur during the course of employment. This does not mean that the accident or illness has to occur at any particular place. Many people don’t work in a factory or an office every day. Some work from their vehicles or at different sites each day, such as a home health aide, a construction worker, or a salesperson.

Portal to Portal
Certain employees are entitled to “Portal to Portal Coverage,” which is essentially door-to-door coverage. An example of this might be an exterminator who uses a company vehicle to pick up supplies once per week and then travels to customers from home during the remainder of the week. Under Portal to Portal Coverage, he would be entitled to Workers’ Compensation benefits if he was involved in an automobile accident on the way to a job.

Another example is a home health aide who travels from patient to patient and falls and breaks a hand in between visits on a snowy day. This person may be entitled to Workers’ Compensation benefits, as an argument can be made that the injury arose out of or in the course of employment.

Your employer or Insurance Company, however, is likely to argue that Portal to Portal Coverage does not apply. The Carrier may argue that there was a deviation for a personal reason that was outside the duties of the job. For example, if the home health aide on that same snowy day decided to check on a child and slips and falls on the sidewalk going into the school, the Carrier could argue that the injury did not arise out of or occur in the course of employment. Rather, the Carrier will argue the injury was the result of a personal act. Even for people who work in an office or factory, Workers’ Compensation benefits may extend to injuries that occur outside of the physical office. Often, this occurs in the context of parking. If your employer provides parking, and you are injured while you’re in the parking lot, this is generally covered under the Workers’ Compensation law. A similar situation arises if you work in a high-rise building and are injured in the lobby or elevator.

Cases of this type are very fact dependent. When considering to bring a Workers’ Compensation case arising out of an accident that occurs away from the workplace, it is best to seek immediate legal help. There may be other legal remedies, such as New York State No-Fault Benefits or a civil action against the owner or operator of the property where the injury occurred that must also be considered. See the Chapter on Third Party Actions.

William W. Crossett, IV
Partner

Phone: 315-471-1664

What is Workers’ Compensation?

Posted by: William Crossett In: Workers Compensation 15 Dec 2015 Comments: 0 Tags: hurt at work, Injured Worker, new york state workers' compensation, syracuse attorney's, Syracuse Injured Worker, syracuse lawyer

The New York State Workers’ Compensation Law is the exclusive remedy of an employee who is injured or made sick while at work in New York State.
“Exclusive remedy” means that, by law, you cannot sue your employer for an injury or illness that arises from your work. There are some very limited exceptions to this rule, such as where your employer has no Workers’ Compensation insurance. However, you can sue a third party whose negligence caused your injury.
Under New York State Workers’ Compensation Law, you are entitled to:
• Lost wage benefits, and
• Medical care.

The New York State Workers’ Compensation Law requires there be a direct connection or nexus between employment and injury or illness.
The law provides for two types of claims:
• Accidents and
• Occupational Diseases.

Accident
Accident claims generally arise from a sudden, unexpected event. Examples include a slip and fall, auto accident, or a fall from a ladder or other heights. Accidents also include injuries that arise from lifting, pushing, or pulling. Sometimes nurses and other health care professionals are injured while helping those they are caring for.

Occupational Disease
Occupational disease cases traditionally refer to injuries or illnesses that result over time. For example, occupational disease cases can include a secretary or clerk who develops carpal tunnel syndrome from typing or a baker who develops asthma from exposure to flour. Exposure to asbestos or other harmful substances and chemicals are included in this type of case.
Often, there is a thin line between what the law designates as an accident and an occupational disease. There are, however, some important differences regarding statute of limitations, burden of proof, and permanency that must be carefully considered.

William W. Crossett, IV
Partner

Phone: 315-471-1664

Is Workers’ Compensation Insurance Mandatory for Employers?

Posted by: William Crossett In: Workers Compensation 10 Dec 2015 Comments: 0 Tags: Injured Worker, New York Workers Compensation, syracuse attorney's, Syracuse Injured Worker

In short, yes. In New York State, anyone with an employee is required to carry Workers’ Compensation insurance. If you are a sole owner or stockholder of a company, you do not need insurance for yourself, although it is required for your employees. Additionally, the owners or stockholders are entitled to opt in or out of coverage.

Independent Contractor
Sometimes, people who do not want to be considered an employer try to create an “independent contractor relationship” with the people performing services for them. An independent contractor, if working by themselves, is not required to carry Workers’ Compensation insurance. Meaning that if you are injured while working as an independent contractor you are not entitled to medical and lost wage Workers’ Compensation benefits.

What defines an independent Contractor?
Simply because you are called an independent contractor does not mean that the court will accept this arrangement. This can be true even where there is a written contract calling you an independent contractor. Rather, the court looks at the level of control and other important factors to determine whether you are a true independent contractor. If, after considering all the factors, the Court finds that the relationship fails to meet the criteria of a true independent contractor, then the Court will deem an employee-employer relationship exists. Such a decision means that you are entitled to both medical and wage benefits under the Workers’ Compensation Law.

This typically occurs where the injured party is required to sign a contract stating that they are an independent contractor. The law looks at the bargaining power, the actual control over the worker, and other relevant factors in making their determination. This most commonly arises with drivers, delivery workers, hairdressers, care givers, and other personal service providers. Given the nature of some kinds of work, certain groups will try to avoid the Workers’ Compensation Law.

Uninsured Employers Fund
Under New York State Workers’ Compensation Law, if your employer does not have Workers’ Compensation insurance, a unique type of Workers’ Compensation case is commenced. The New York Law established the Uninsured Employers’ Fund to administer and pay both medical and lost wage benefits for these kinds of cases.

William W. Crossett, IV
Partner

Phone: 315-471-1664

What if I am Injured in an Auto or Truck Accident While Working?

Posted by: William Crossett In: Workers Compensation 02 Dec 2015 Comments: 0 Tags: hurt at work, Injured Worker, New York Workers Compensation, syracuse attorney's, Syracuse Injured Worker, syracuse workers compensation

If you are involved in a motor vehicle accident in the course of your employment, New York State provides No-Fault Benefits in addition to Workers’ Compensation Benefits. No-Fault Benefits are provided by the insurance company for the vehicle you are riding in. There are exceptions to this rule and other coverages may also apply depending on your particular circumstances.

Workers’ Compensation Is Primary
Workers’ Compensation benefits are primary. This means that the Workers’ Compensation carrier pays medical and lost wage benefits first. No-Fault Benefits are secondary. Typically, there is a little bit of additional money from the No-Fault carrier, because Workers’ Compensation pays 2/3 of your average weekly wage and No-Fault pays 80%. Typically, No-Fault policies have limits, which are exhausted before the Workers’ Compensation benefits.
Because an auto accident is often the result of the negligence of a “third-party” (not your employer or co-worker), the law allows you to bring a separate civil lawsuit against the negligence party. This is referred to as a “third-party action.”

Many third-party cases happen in automobile accidents. However, third-party cases may also arise from negligence of a third-party in the workplace or on sites that you may be working. New York State’s Labor Law provides for some very important protections for construction workers and those working from elevated heights. Again, this type of case is very fact-driven and may have additional, short statutes of limitations. Therefore, if you think your injury may fall into one of these categories, you should immediately seek legal assistance.

The law does not allow a double recovery, therefore, the Workers’ Compensation Carrier has a lien under Section 29 of the Workers’ Compensation Law against the monies paid in a third-party action. What this means is that the injured worker will have to pay from the proceeds of the law suit, the Workers’ Compensation Carrier for both the medical and lost wage benefits paid. There is a credit for the cost of the recovery. It is very important that the Workers’ Compensation Carrier consent to a settlement in a third-party action.

Why Do I Have To Obtain Workers’ Compensation’s Consent?
Because If you do not obtain consent and/or satisfy the lien, it is likely that you will have forfeited your rights to future benefits under the Workers’ Compensation Law. Meaning that you may no longer have medical care or be entitled to lost wage payments. This is especially true in cases involving Motor Vehicles as often the policy limits are much less than what is paid in a Workers’ Compensation Case.

It’s very important that you understand the rights and obligations when you have more than one action arising from the same injury. At MCV Law, we make a real effort to take a holistic approach to third party cases that arise from a work-related event to ensure that the claimant is getting the greatest benefit they can. This maximum benefit approach does not always involve bringing a third party suit, because of the lien provisions and the fees associated with third party actions.

William W. Crossett, IV
Partner

Phone: 315-471-1664

MCV Law: What if I had More than One Employer When I Was Hurt?

Posted by: William Crossett In: Workers Compensation 20 Nov 2015 Comments: 0

Many injuries cause workers to not only lose time from one job, but may also cause them to lose time from a second job. Under the law, the lost time from the second job is also compensable. This is known as “Concurrent Employment.” The place of employment where you were working when you actually got injured is referred to as the “Primary Employment.”

The first step is to amend your Average Weekly Wage (“AWW”) to include wages earned from your Concurrent Employment. This is calculated the same was as your Average Weekly Wage; by taking your gross earnings for one year prior to your injury and dividing them by the number of weeks or days worked in that year. For an in-depth explanation on calculating the Average Weekly Wage, see “Quick Answers by MCV Law: Just What is the Average Weekly Wage”.

If you are out of work from both jobs, the inclusion of your Concurrent Employment wages into your Average Weekly Wage will increase your weekly benefits, because your rate is based on your Average Weekly Wage.
Often times, injured workers are able to return to one employment and not the other. This generally occurs if your doctor has limited your hours or provided you with restrictions that one employer can accommodate but not the other. In that case, Reduced Earnings would apply. For help calculating your Reduced Earnings, please use our “Workers’ Compensation Reduced Earnings Calculator”.

The law says that if you are return to work but earn less because of your injury, you can collect 2/3 of the difference between your Average Weekly Wage and your current earnings. Entitlement to Reduced Earnings requires you to demonstrate two things: restrictions or a limitation on your work abilities from your medical providers and a loss in pay, which is generally shown through your payroll. Also, the Concurrent Employment must be “covered employment” under the statute.

To demonstrate how Concurrent Employment affects your Reduced Earnings benefits, consider this example. If your Primary AWW is $400.00 and your Concurrent AWW is $100.00, this results in a total AWW for your case of $500.00. If you are only able to return to work for your Concurrent Employer, you are losing $400.00 a week in wages. Thus, you could collect $266.40 in Reduced Earnings Benefits. The idea is that your injury is preventing you from your earning what you were earning when you got hurt, regardless of the employer.

Written By:
Bethany Nicoletti

Phone: 315-471-1664

Bethany Nicoletti is a graduate of Ithaca College where she earned her B.A. in Communication Studies. She graduated cum laude from University at Buffalo Law School in 2013 and was admitted to the New York State Bar in the Fourth Judicial Department in 2014.

What is Subrogation?

Posted by: William Crossett In: Subrogation 18 Nov 2015 Comments: 0 Tags: subrogation, syracuse attorney's, syracuse lawyer

If you have been involved in a car accident with property damage there is a chance that you have heard the term subrogation. You may not know what that means, or why someone is contacting you about the claim, but don’t be worried you are not alone. Subrogation is nothing more than an avenue to get a just resolution to a claim. It allows an insurance company to “step in the shoes” of their insured and recover payments they have made because of an accident.

Why am I Involved in a Subrogation Claim?
What does that mean to you? For many people, if they are ever involved in a subrogation claim it is related to an automobile accident. When you are involved in a motor vehicle accident and there is a question about who is at fault, your insurance company may choose to pay you under YOUR policy. However, if at a later point, your insurance company believes another person responsible for your damages, they can try to recover from them. No one wants to pay for something they are not responsible for, not even insurance companies.

Are There Benefits for Me if my Insurance Company Starts a Claim?
How does this help you? If you paid your deductible and your insurance company wins you may receive money back. You were able to get money back, and your insurance company did all the work, that’s a win for everyone.

Do I Have to Cooperate With My Insurance Company?
It is important to note that most insurance policies require you to cooperate with their subrogation claims. Check your individual policy for specific requirements.

Richard Derrick

Email: rderrick@mcvlaw.com

Phone: 315-471-1664

Richard Derrick graduated from Roger Williams School of Law in 2009 where he received the Public Service Award for his commitment to providing legal assistance to the community during his studies. He was admitted to the New York Bar in 2010 and Massachusetts Bar in 2009. He has been a member of Meggesto, Crossett & Valerino, LLP since August 2015.

Should I have Renter’s Insurance?

Posted by: William Crossett In: Real Estate 15 Nov 2015 Comments: 0 Tags: insurance, syracuse attorney's, syracuse lawyer

Yes! Everyone who rents an apartment or a house should have renter’s insurance. And yet, if you are like most people, you probably do not have renter’s insurance. Most people are under the illusion that any damages will be covered by their landlord’s insurance, however this is not true. A landlord’s insurance will only cover what a landlord owns, and will be limited to the land and the physical structures on the land. Any of your personal property, will not be covered by your landlord’s insurance company.

A little known secret of renter’s insurance is that it does not cost that much. An average policy cost $15 per month or $180 per year. If you go with a cash-value plan, which reimburses you for the current market value of any given item, you will pay a little less. If you have a replacement plan, which covers the entire cost of purchasing a new item, you will pay a little more.

Therefore, if you have a break-in or a fire, and you have renter’s insurance, you will be able to replace your belongings. In addition, if someone hurts themselves inside your home and claims you are responsible, renter’s insurance will cover your liability.

As you can see, renter’s insurance is well worth the cost.

Heather La Dieu

Phone: 315-471-1664

Heather R. La Dieu has been an associate in Meggesto, Crossett & Valerino, LLP’s Litigation Department since 2001. Ms. La Dieu focuses her practice primarily in personal injury cases involving motor vehicle accidents, premises liability, construction accidents, municipal liability, wrongful death and products liability. Ms. La Dieu also practices in the area of insurance law, contract law and criminal defense.

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

Ms. La Dieu is admitted to the New York State Bar, the U.S. District Court for the Northern District and the Supreme Court of the United States of America. Ms. La Dieu is a member of the Onondaga County Bar Association, New York Bar Association and Central New York State Women’s Bar Association. Ms. La Dieu also has arbitrated for the Syracuse City Court Arbitration Program.

What Does Renter’s Insurance Cover?

Posted by: MCVLawBlog In: Real Estate 13 Nov 2015 Comments: 0 Tags: renter's insurance, syracuse attorney's, syracuse lawyer

I recently discussed in the past on my blog that everyone who rents an apartment or a house should have renter’s insurance. A landlord’s insurance will only cover what a landlord owns, and will be limited to the land and the physical structures on the land. Any of your personal property, will not be covered by your landlord’s insurance company.

I would note that damage from an earthquake or flood will likely not be covered. In fact, any hazard that is not specifically mentioned, like water damage from faulty plumbing, if it is not specifically stated in your policy, will not be covered. In addition, if you own something valuable, like jewelry, artwork or antiques, you will need additional insurance specifically covering the special item.

People often ask how much renter’s insurance should they purchase. The answer depends on how valuable are your personal belongings. $2,000 would be sufficient for some people, while $100,000 would not be enough for others. You might want to do some research into how much your possessions are worth before you determine how much renter’s insurance you need. Some possessions, like antiques, may require an appraisal.

In addition, you may want to inventory your most valuable possessions. It would be helpful if you took photos and kept purchase receipts. The inventory should be kept outside your home so they are not destroyed by whatever happened to the rest of your belongings.

Renter’s insurance is well worth the cost should something happen to your home.

Heather La Dieu

Phone: 315-471-1664

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

The 3 Biggest Mistakes People Make in Their Social Security Disability Cases

Posted by: MCV Law blogger In: Social Security, ssdi 03 Nov 2015 Comments: 0

1. They don’t file an appeal or don’t timely file an appeal. The process is long and confusing and people get discouraged when they get a denial. People that have good claims get denied, expect to get denied, but don’t place to much credit upon the denial, file your appeal. Sometimes people are told to file a new claim. This is a mistake. Your second application is not likely to fare any better than your first application. Do yourself a favor and hire an attorney who handles Social Security cases to help you with your appeal. You only have 60 days from the date of denial to file the appeal.

2. They don’t seek treatment for their conditions. There are a lot of reasons people do not go for medical treatment. Examples include: the cost; my doctor told me there is nothing more he/she can do for my condition; the treatment doesn’t help or makes my symptoms worse. This is a mistake. This process is about your credibility to some extent. A judge may not believe your condition is as bad as you say if you are not getting medical treatment. The people who get benefits are those who continue to treat, even if the treatment is not very effective, and can point to a medical record showing they are following their doctors’ treatment recommendations and what has worked or hasn’t worked for you.

3. They don’t have a good doctor’s opinion on their restrictions. I talk to people every day who want to focus solely on their diagnosis. The burden of proving you are disabled is on you. You need medical evidence from a physician in the form of a diagnosis, treatment records, diagnostic test results, hospital records and a statement from your doctor describing your functional limitations.

Kimberly Slimbaugh
Partner

Phone: 315-471-1664

Kimberly Slimbaugh has been practicing law since 1992 and is a current partner at Meggesto, Crossett & Valerino, LLP. In addition to the New York State Bar, she was admitted to the Massachusetts State Bar in 1992. She is a member of the National Association of Social Security Representatives and regularly attends its national conferences.

Workers’ Compensation Hearing Loss Claims

Posted by: William Crossett In: Workers Compensation 09 Oct 2015 Comments: 0

Can I Receive Workers’ Compensation?

The New York State Workers’ Compensation Law provides for two types of hearing loss:
• Traumatic Hearing Loss, which is the result of a sudden, unexpected event, like an explosion
• Occupational Hearing Loss, which is the result of exposure to loud noise over a period of time

What is Covered?

• Your medical treatment, including hearing aids
• A schedule loss of use award, depending on the percentage of hearing loss

The Statute of Limitations

• For Traumatic Hearing Loss, the statute of limitations is 2 years from the date of the event.
• For Occupational Hearing Loss, the statute of limitations is 2 years and 90 days after the knowledge that the loss of hearing is or was due to the nature of employment.

The Process of a Hearing Loss Claim

By law, you have to be out of the harmful exposure for 90 days before your hearing loss can be measured. We recommend that you make arrangements to see an otolaryngologist (ear, nose, and throat doctor) after this 90 day period.
See an approved otolaryngologist. The Workers’ Compensation Board has a search tool that can be used to find a nearby otolaryngologist.
Be sure to give the otolaryngologist a history and description of employment, as well as the type of noise you were exposed to. Also note any noise exposure that you had prior to this job, or currently have in addition to this job.
The otolaryngologist will determine whether or not you have experienced hearing loss an complete a form regarding this. They will also file a C-4NARR or C-4 form.
Once you have medical evidence, it is important to file a claim using a C-3 form within 2 years of the injury. The Board will then assemble/index a claim. The C-3 form can be tricky and confusing to fill out
The insurance company representing your employer will then either accept or controvert the claim. If they controvert the claim, a hearing will occur to determine which issues need to be adjudicated.
If your claim is successful, you are entitled to medical equipment related to your hearing loss. You may also be entitled to a schedule loss of use award.
At MCV Law, we have developed a process which ensures claims the best chance of success. Don’t hesitate to schedule an appointment to review your claim.

William Crossett IV
Partner

Phone: 315-471-1664

William Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presents Continuing Legal Education programs.

Common Misconceptions of the Law

Posted by: William Crossett In: General, Personal Injury, Social Security, ssdi, Workers Compensation 05 Oct 2015 Comments: 0

Parents are responsible for the negligent acts of their children. While this statement may seem logical, it is untrue. Parents are not responsible for the consequences of their children’s negligent conduct. If, however, the parents own conduct is negligent, then the parent can be held responsible for their own actions.

As an example, the child finds a firearm in the woods and negligently discharges it, causing property damage or personal injury. A parent would not be responsible for those acts. However, if the same child found a loaded hand gun in their home that the parent negligently failed to secure and the child discharges that firearm, causing property damage or personal injury, the parent could be held responsible for their own actions in negligently failing to secure the firearm.

The same is true for automobile accidents. A parent is not responsible for the negligent conduct of their child if they cause personal injury or property damage in an automobile accident. However, if the parent owns the motor vehicle being operated by their child and it is being operated with the permission and consent of the parent, then the vehicle and traffic law in the State of New York imposes responsibility upon the owner of such vehicle. Therefore, responsibility would be imposed, not because of the parent/child relationship, but rather the ownership of the motor vehicle.

Liability or responsibility for negligent acts can most often be insured against and most homeowner’s policies include children of the named insured, provided that they are residents of the household. Automobile insurance policies have their own unique coverages, and parents should from time to time review their insurance coverages for their homeowner’s coverage and automobile coverage regarding the protection not only for themselves but for their children.
James Meggesto
Partner

Email: jmeggesto@mcvlaw.com

Phone: 315-471-1664

James A. Meggesto has been practicing as a trial lawyer for over 40 years. He is a graduate of Niagara University who served in the United States Navy during the Vietnam War prior to attending and graduating from Syracuse University College of Law.

Why is the State Insurance Fund Sending Me a Notice to Have an MRI?

Posted by: William Crossett In: Workers Compensation 01 Oct 2015 Comments: 0

STATE INSURANCE FUND CLAIMANTS – PLEASE IGNORE THIS LETTER

As of September 30th, 2015, a letter has been going out from the New York State Insurance Fund to its Workers’ Compensation Claimants. This unfortunately worded letter has caused a bit of a panic with claimants who are insured through the State Insurance Fund.

It is clear from the very first reading that this letter will cause compensation claimants to believe they need to schedule diagnostic tests such as MRI’s or CT Scans immediately, and schedule them at some out-of-state facility.

This is not the case at all.

This letter is nothing more than a list of the home offices of the carrier’s in-network diagnostic preferred providers. These are the main contact numbers for groups like One-Call Diagnostic, and Med-Focus, which many claimants will be familiar with from scheduling tests. These providers administrate the scheduling for diagnostic testing at local offices where your treating physician will send you for testing. These are preferred providers only and there is no requirement to use them in any capacity.

No insurance carrier can order a claimant to get diagnostic testing. As with any other medical testing, diagnostic tests are requested by your treating physician with your full knowledge and consent.

John M. Bellinger
Paralegal

Email: jbellinger@mcvlaw.com

This entry was written by John Bellinger, who is part of the Worker’s Compensation team at MCV Law.

8 Prescription Tips For The Workers’ Compensation Claimant

Posted by: William Crossett In: Workers Compensation 28 Sep 2015 Comments: 0

Know your medications (i)
Always keep a list of your current medications, and know which ones you are trying to fill. Be sure you know which medications you take are related to your compensation claim, and which are not.
Know your medications (ii)
Do not be afraid to ask your doctor what your medications are and what they are being prescribed for. Look them up on the internet. Be aware that doctors will prescribe medications for uses which are not considered as primary. For example, a doctor may prescribe a medication for nerve pain that is normally prescribed for seizure behavior. Medications not prescribed for their primary use can raise a red flag with the insurance carrier.
Know the prescribing doctor
Most often, when you have a medical appointment, you will see a nurse practitioner or physician’s assistant. If you do, try to be sure you know the name of the supervising physician who is signing off on your medical reports.
Fill prescription as early as possible
The more time you give the process, the better off you are.
Fill in the morning on a weekday, if possible, and avoid Friday, or days prior to a holiday
Once again, the more time the better – insurance adjusters often have heavy case loads, start their day early, and they are usually unresponsive after 4 PM. Most calls left with the insurance carrier come with an expected response delay of at least 24 hours. It is best to assume a 48 hour turnaround to resolve any prescription that is not being authorized. Avoiding Friday means lowering the chances of going through a weekend without medication.
Use the phone
Whenever possible, attempt to fill prescriptions by phone. There is no mileage reimbursement for trips to the pharmacy. If you are stuck waiting, it is better to wait at home.
Contact your attorney
If you are represented by an attorney, contact the legal staff with any issues filling medications. Adjusters will not speak with represented claimants. Your attorney and their staff are experienced at handling medication issues, and are the quickest road to resolution of any prescription-related problems.
Have your information handy
When you contact your attorney’s office for help with the prescription you should have the following information:
a. Date of injury
b. Body part for which medication is prescribed
c. Name of medication
d. New medication or refill?
e. Prescribing physician/office name and location
f. Name of the filling pharmacy
g. Phone number of filling pharmacy

John M. Bellinger
Paralegal

Email: jbellinger@mcvlaw.com

This entry was written by John Bellinger, who is part of the Worker’s Compensation team at MCV Law.

Can I Collect NYS Unemployment Insurance Benefits and Workers’ Compensation?

Posted by: William Crossett In: Workers Compensation 24 Sep 2015 Comments: 0

Yes – you can collect both NYS Unemployment Insurance benefits and Workers’ Compensation benefits at the same time. Your eligibility for both benefits will generally occur if you are being paid at a partial disability rate from Workers’ Compensation and are deemed ready, willing, and able to work by the Unemployment office. Alternatively, if your doctor’s opine you to be totally disabled and you are receiving Workers’ Compensation benefits at the total rate, you are likely not eligible for Unemployment benefits.

While you can collect both benefits at the same time, you cannot collect more than your Average Weekly Wage from both benefits. For example, if your Average Weekly Wage is set at $500.00 per week, your unemployment benefits will go down if you are collecting more than this from both Workers’ Compensation and Unemployment. Your Workers’ Compensation is set first and your Unemployment benefits are adjusted accordingly. Therefore, you must report your Workers’ Compensation earnings to the Unemployment office.
William Crossett IV
Partner

Phone: 315-471-1664

Getting Prescription Medications

Posted by: MCVLawBlog In: Workers Compensation 17 Sep 2015 Comments: 0 Tags: hurt at work, Injured Worker, New York Workers Compensation, syracuse attorney's, Syracuse Injured Worker, syracuse lawyer, syracuse workers compensation, workers' compensation

It is a fact of life in the world of New York State Workers’ Compensation that getting medication is not as easy as your everyday trip to the pharmacy to pick up a prescription. One of the main reasons for this is the number of parties involved, and the regulatory structure under which those parties do business.

We tend to think of the medications which we take as a private business between our doctors and ourselves. Although we are aware that our private health insurance has a say in what will and will not be paid for, the Doctor is well aware of those particular restrictions, and will prescribe accordingly, keeping the prescription machine flowing smoothly enough that being able to obtain a prescription is relatively easy.

For compensation claimants, there are not only more parties that stand between you and your medication, there is the additional regulatory filter of the New York State Medical Treatment Guidelines. These are guidelines that all parties involved must adhere to.

For the Workers’ Compensation claimant it may be better to think of a prescription as a request, rather than Doctor’s Orders. It is a request that has to pass through all parties involved in order to be granted.

Here is an overview of the general process:

Claimant sees the doctor and medications are prescribed.
The claimant has a medical visit with a doctor who prescribes medication that is related to the treatment of his injury. The prescribing of the medication or the continued use of the medication should be clearly spelled out by the treating physician in the medical narrative report. All medications should be written down at every medical visit. Do not hesitate to let your doctor know this.

The prescription is not enough.
Although your pharmacy will take your prescription and enter it into their system as a request, a prescription is not adequate documentation for the compensation insurance carrier to authorize the release of that medication to you. When you are first injured, you may get a one-time fill of medication which will be paid when the claim is accepted, or will be charged back to private insurance if the claim is not accepted. However, once past that first-time fill your prescriptions will go through the normal channels. From that point forward, the prescription will not be filled without clear medical evidence of the need for the medication. A prescription, therefore, is just a request without evidence or explanation.

The Third Party
There is a third party pharmacy administrator that stands between the pharmacy and the compensation insurance carrier. The third party administrator basically verifies all your prescription information and passes your prescription request on to the insurance carrier for authorization.

The Insurance Adjuster/Case Manager.
The insurance adjuster is the one who will receive the request from the third party administrator and authorize your prescription. Ongoing prescriptions that are clearly recommended by the guidelines will be the easiest to pass through the system. Prescriptions that fall outside the guidelines will require a secondary review, and will normally be rejected without a clear medical explanation of their necessity in the doctor’s medical reports. Often a separate Letter of Medical Necessity will be required.

Adjusters take vacations.
Compensation claimants need to be aware that insurance adjusters go on vacation, and “substitute” case managers are not always readily available, causing a delay in getting prescriptions. Contact your attorney with any issues.

Nurse Case Manager, Utilization Review.
Any prescription usage under New York Workers’ Compensation is subject to review by a medical professional, usually Nurse Case Managers. This is especially true with “chronic” users of medication who have been taking medications for extended periods (generally anything longer than 6 months). Any ongoing use of opiates and other narcotic medications is closely monitored. Requests falling outside the guidelines that are clearly indicated as necessary may be subject to Utilization Review.

Durable medical equipment requests (braces, canes, wheelchairs).
Durable medical equipment is treated as just another prescription, and is subject to the same processes and guidelines as any other medication.

Contact your legal representative.
If you are represented in your worker’s compensation claim, contact your attorney’s office with any prescription medication issues – Do not contact the insurance carrier directly.

John M. Bellinger
Paralegal

Email: jbellinger@mcvlaw.com

This entry was written by John Bellinger, who is part of the Worker’s Compensation team at MCV Law.

How Does Worker’s Compensation Affect My Social Security Disability Benefits?

Posted by: MCVLawBlog In: Social Security, ssdi, Workers Compensation 16 Sep 2015 Comments: 0

If you are receiving Worker’s Compensation benefits and file for Social Security disability benefits, you may not be able to collect the maximum amount of Social Security benefits based on your earnings record. Between Worker’s Compensation and Social Security Disability, you may only receive up to 80% of your average current earnings (ACE) in total. If the total of your Worker’s Compensation and Social Security Disability benefits exceed 80% of your average current earnings, your Social Security Disability benefit will be offset or reduced.
Take this example:

First figure out your average current earnings:
Your average current earnings is calculated either by averaging your highest consecutive 5 years of earnings or by taking the highest year of earnings in the last 5 years prior to your disability.
If your highest year of earnings in the five years before you became disabled was $40,000, then divide this number by 12 to get your monthly earnings of $3333.33.
Then multiply this number by 80 % (3333.33 X .80) to arrive at your average current earnings of $2666.66.

How much is your monthly Workers Compensation benefit?
Take the amount of your weekly Workers Compensation benefit and multiply by 52, then divide this number by 12, to get your monthly workers compensation benefit.
For example: Say you receive $400 per week in worker’s compensation.
Multiply this number by 52 ($400 X52) to get your yearly benefit of $20,800
Now divide this number by 12 to get your monthly Compensation benefit or $1733.33.
Now subtract your monthly compensation benefit from your ACE: $2666.66-$1733.33= $933.33. This number ($933.33) represents the highest amount of Social Security Disability benefits you could receive (using this example).
Remember that every case is different. It is very important to report all changes, in writing, in your Worker’s Compensation benefits to Social Security. It is also important to keep proof that you submitted the information to Social Security. You will also need to follow-up with Social Security to make sure they adjust your benefits as needed.

Kimberly Slimbaugh
Partner

Phone: 315-471-1664

MCV Law is Proud to Announce the Launch of its Very Own Job Search (C-258) Form Generator!

Posted by: MCVLawBlog In: Workers Compensation 15 Sep 2015 Comments: 0

Give it a try!

During the course of a New York Workers’ Compensation claim, numerous issues arise that injured workers must be aware of as they can have a significant impact on entitlement to lost wage benefits. The New York Workers’ Compensation Board can place obligations on injured workers. Not fully understanding these obligations and not complying with them can have consequences. One example is the obligation for partially disabled workers to remain attached to the labor market.

The obligation for an injured worker to seek employment within his or her light duty capabilities arises when either the claimant’s treating physician or the insurance carrier’s consultant (IME) indicates that the person has some work ability to work.

While an injured worker’s partial disability may prevent him or her from returning to their prior work, it does not necessarily prevent the injured worker from returning to all types of work. Generally, the law imposes an obligation on the injured worker to seek work consistent with his or her abilities. If the injured worker fails to do so, the insurance carrier may assert that the injured worker has voluntarily removed his or her self from the workforce, thereby allowing them to stop ongoing weekly wage benefits.

Sometimes injured workers believe that they do not have to remain attached to the labor market because they are on Social Security Disability (SSDI), collect Unemployment Insurance, have been told by their previous employer that they cannot go back to work because of their disability, or they have been terminated because of their disability.

While there are few exceptions to this rule, the exceptions are very limited. To protect yourself, we recommend that all injured workers with a Temporary Partial Disability or a Permanent Partial Disability take appropriate steps to show that they are sufficiently Attached to the Labor Market so as to prevent the insurance carrier from suspending benefits.
Injured workers demonstrate attachment to the labor market in three main ways: by performing an independent job search, by working with programs such as ACCES-VR, and by working with one stop career centers. Injured workers must provide evidence of their work search efforts.

There is case law to support the proposition that, if you are attending school FULL-TIME for retraining purposes, you are attached to the labor market. It is important that you also document your participation in a full-time program.

We recognize that this obligation is often difficult for an injured worker, but the idea is to prove that you are actively looking for work. We recommend that you use the form C-258.

MCV Law is proud to announce the launch of its very own Job Search (C-258) Form Generator to help injured workers more easily keep track of their work search efforts to avoid a suspension of benefits. The new fillable/printable form can be found here.

Christopher Stringham

Phone: 315-471-1664

Christopher Stringham graduated from Western New England College School of Law in 2010 and was admitted to the New York State Bar as well as the United States District Court, Northern District of New York in 2011. He is a member of the New York State Bar Association, Onondaga County Bar Association, and the Injured Workers’ Bar Association of New York. He has been a member of Meggesto, Crossett & Valerino, LLP since October 2010.

The Insurance Company is Paying Me “Without Prejudice”, Now What?

Posted by: MCVLawBlog In: Workers Compensation 10 Sep 2015 Comments: 0 Tags: hurt at work, Injured Worker, mcv law, new york state workers' compensation, syracuse attorney's, Syracuse Injured Worker, syracuse workers compensation

Many times, the carrier will issue payments to you without prejudice. This means that the carrier is taking advantage of Section 21-a of the NYS Workers Compensation Law. Section 21-a allows the carrier to pay you without accepting your case. In other words, the carrier is asserting that the mere fact that they are issuing payments to you cannot be deemed an acceptance of liability for your claim. Rather, they are agreeing to issue payments to you while the record continues to develop or while they await further information.

This does not mean you will have to pay back the awards in the event that the carrier later asserts it is not liable. It simply means that the carrier is not accepting liability by making payments. The carrier may make payments without prejudice for up to one year. Unless the Carrier sends a notice of termination within the year, the payments are deemed an admission of liability.

Sometimes, the carrier may also grant certain treatment without prejudice. This usually pertains to treatment for body sites that are not presently established in your case. The insurance carrier is again saying that, while it is agreeing to pay for certain treatment, it is not accepting the liability for those body sites until the record is further developed. Again, you will not be responsible for the treatment in the event that the carrier later disputes liability for the body site.
Bethany Nicoletti

Phone: 315-471-1664

Social Security’s 80th Anniversary

Posted by: William Crossett In: Social Security, ssdi 14 Aug 2015 Comments: 0 Tags: kim slimbaugh, mcv law, social security, social security disability, social security disability benefits, syracuse attorney's

Today marks the 80th anniversary of the Social Security program. The program was signed into law by President Roosevelt in 1935 and was intended to provide “some measure of protection to the average citizen and to his family against the loss of a job and against poverty-ridden old age.” The program has served our nations workers ever since. Please continue to encourage our lawmakers of the need to protect and strengthen the program.

Kimberly Slimbaugh
Partner

Phone: 315-471-1664

State of New York Commission on Quality Care and Advocacy for Persons with Disabilities, Surrogate Decision-Making Committee Panel.

Every Injured Worker Needs a Vacation

Posted by: William Crossett In: Workers Compensation 13 Aug 2015 Comments: 0

Yes, I said it – every injured worker needs a vacation; just like their coworkers, bosses, and friends. Injured workers deserve a break from medical appointments, physical therapy, disputes over medication, and from the worry and stress that comes after an injury or illness. Injured workers need time away from all of this stress to figure out exactly how they are going to move forward.

Every injured worker that Meggesto, Crossett & Valerino, LLP represents wonders “Will I get better? Will I be able to return to my old job? What happens if I can’t go back to the only work I know how to do?”

Injured workers also wonder “When will I be paid? Will my check arrive regularly to I can pay my bills? What happens if I do not receive my check? Why is the amount of my check increasing or decreasing?”

These are all fair questions and concerns that we, as attorneys, strive to answer for our clients every day. We often find that injured workers get caught up in the immediate, short-term battles, such as attending medical appointment and comprehending the amount of their benefits, and could really use a break from it all.

When the attorneys and staff at Meggesto, Crossett & Valerino, LLP talk to our clients and try to answer these questions, we stress the importance of being in control of their situation. We consistently remind our clients that they are the “Masters of their Own Density.” In doing this, we recommend courses of action and strategies that will maximize benefits in the short run, while keeping in mind that we must protect both injured workers and their families in the long run.

When you change your daily routine by waking up in a different place, and where the only decision you have to make is whether to go swimming or fishing, you give your mind a chance to clear itself. Perhaps even day dreaming while enjoying the sun, or an afternoon spent outside, would held put your mind at ease. You might find that, when you least expect it, a thought or answer might pop into to your head that you were too busy or anxious before to realize.

Now, I know it is not easy; you may not have the money to enjoy a vacation nor the freedom to delay medical procedures or treatments. But, we strongly recommend clearing a week or two in your schedule to just get away, even if only to a public park, to clear your head and relieve the stress every injured worker experiences.

Before summer turns to fall, take my advice and find some time to get away. Who knows – maybe you will have a flash of inspiration. Even if you do not, simple acts such as shutting the television off, moving your medical appointments, or simply having a change of scenery, can be an easy but important step on the path to becoming the “Master of your Own Density.”

William W. Crossett, IV
Partner

Phone: 315-471-1664

Watch Your Speed! Troopers Ramping Up For “Speed Week Campaign”

Posted by: William Crossett In: Traffic 07 Aug 2015 Comments: 0 Tags: mcv law, speed week, speeding, syracuse attorney's, syracuse lawyer, ticket, traffic, traffic ticket

Across New York State, the State Police are currently in the midst of their annual “speed week” campaign, which runs through Tuesday, August 11th. According to the State Police, speed is a contributing factor in one out of every three motor vehicle accidents across the state.

“Our goal during this campaign… is to get dangerous drivers off New York roads”, says superintendent Joseph A. D’Amico.

Troopers will be using both marked and unmarked vehicles in their effort to make New York’s roadways safer. In addition to speeding violations, the Troopers will be ramping up their attention to distracted driving, as well as any non-compliance with seat-belt and “Move-Over” laws.

Here are the current fines for speeding in a 55 or 65 mph zone:

First Conviction
– 10 mph over limit: minimum $45 maximum $150
– 11-30 mph over limit: minimum $90 maximum $300
– 31+ mph over limit: minimum $180 maximum $600
Second Conviction
– 10 mph over limit: minimum $45 maximum $300
– 11-30 mph over limit: minimum $90 maximum $450
– 31+ mph over limit: minimum $180 maximum $750
Third Conviction
– 10 mph over limit: minimum $45 maximum $525
– 11-30 mph over limit: minimum $90 maximum $675
– 31+ mph over limit: minimum $180 maximum $975
Court Surcharges
– Town or Village: $93
– Other Courts (City/Traffic): $88
Violation Points
– 1 to 10 mph over limit: 3 points
– 11 to 20 mph over limit: 6 points
– 30 to 40 mph over limit: 8 points
– 40+ mph over limit: 11 points (this triggers suspension)

Please be careful on the road, this week and every week.

If you have a traffic ticket, call Gary Valerino at MCV Law (315-471-1664) for help.

Gary Valerino

Partner

Phone: 315-471-1664

Gary Valerino, Esq. is a 1998 graduate of Syracuse University Law School. Mr. Valerino is admitted to practice in all New York State Courts, the Federal Northern District of New York, and the Supreme Court of the United States. He has been practicing law since 1989 and has been with Meggesto, Crossett & Valerino, LLP his entire career. He is a member of the Association of Trial Lawyers of America (ATLA) and the National Association of Subrogation Professionals (NASP). He is also an approved subrogation counsel for many of the major insurance companies.

Announcing MCV Law’s Mileage And Transportation (C-257) Form Generator

Posted by: William Crossett In: Workers Compensation 06 Aug 2015 Comments: 0

Filling out the C-257 mileage form used to be a long, tedious process. Luckily, MCV Law has made it easier with our new Mileage and Transportation Form Generator! With the ability to copy previous entries, filling out the C-257 is now a breeze. Simply click the link below and give it a shot.

Give a try!

What are the advantages of a Medicare Set-Aside?

Posted by: William Crossett In: Workers Compensation 28 Jul 2015 Comments: 0 Tags: mcv law, New York Workers Compensation, syracuse attorney's, Syracuse Injured Worker, syracuse lawyer, syracuse workers compensation, workers' compensation

In order to settle the medical portion of a Workers’ Compensation claim, we are sometimes required to take into account Medicare’s interest. This requires us to obtain a Medicare Set-Aside. While this may seem confusing and unfamiliar, there are many advantages to settling your medical with a Medicare Set-Aside.

First, a Medicare Set-Aside is managed by you. This means that you no longer have to get pre-approval for your treatment and no longer have to wait for pre-approval from your adjuster at the pharmacy for your scripts. You can also treat at your leisure and are not required to follow the Medical Treatment Guidelines. Many of our clients find it easier to leave New York and get to warmer weather when they are in charge of their treatment. Often times, claimants find difficulty getting treatment out of New York State, and a Medicare Set-Aside fixes that problem. The money goes with you – and you use it as you see fit.

The second advantage to a Medicare Set-Aside arrangement assures that you have medical coverage for life. When the Centers for Medicare Services approves the amount of your Medicare Set-Aside, they are agreeing to pay your treatment, subject to their rules, once the monies in the set-aside are exhausted. This way, you have coverage for life, whether it comes from your Medicare Set-Aside monies or directly from Medicare.

During early settlement discussions with our clients, many are confused by the Medicare Set-Aside process, but quickly realize that it has many advantages and is actually quite simple. Given the advantages discussed above, many of our clients are happier using a Medicare Set-Aside than relying on the Carrier to manage their treatment.
Bethany Nicoletti

Try Our Workers Compensation Benefits Calculator!

Phone: 315-471-1664

Announcing MCV Law’s Workers Compensation Benefits Calculator

Posted by: William Crossett In: Workers Compensation 22 Jul 2015 Comments: 0 Tags: hurt at work, Injured Worker, mcv law, new york state workers' compensation, New York Workers Compensation, syracuse attorney's, Syracuse Injured Worker, syracuse lawyer, syracuse workers compensation, workers' compensation

How much will I get? This question is usually one of the first things a client asks us when discussing a Workers Compensation case. Previously, to answer this, we would have to get the necessary information from the client, then calculate the weekly benefits, and then finally contact them again so they could hear the result. Now, we have made it much easier! The only thing you have to do is follow the instructions on the calculator page and it will give you an estimate of the benefits you will receive!

United States Senate Considers Cuts To SSDI To Help Fund Highways

Posted by: MCVLawBlog In: Social Security, ssdi 20 Jul 2015 Comments: 0 Tags: kim slimbaugh, mcv law, social security, social security disability, social security disability benefits, syracuse attorney's, syracuse lawyer

This week the United States Senate will take up legislation to fund the nation’s highway system. Most of us think this is a good thing. However, we have learned that one or more of the amendments to the legislation would cut Social Security Disability Income (SSDI) to help fund the highways. Specifically, the proposal talks about cutting benefits for people who receive SSDI and Unemployment Insurance (UI).

Typically, the UI overlay is because SSDI beneficiaries have attempted to work, as the law encourages, but lost their job to no fault of their own.
The National Association of Disability Representatives (NADR) has encouraged us to write to our New York State Senators Chuck Schumer and Kirsten Gillibrand urging them to oppose this and other amendments to the Highway bill.

Here is a sample letter from the Consortium for Citizens With Disabilities for your consideration. Please share your concern with our State Senators, whose email addresses are shown below.

Senator Chuck Shumer: robert_gardner@schumer.senate.gov
Senator Kirsten Gillibrand: karina_cabrera@gillibrand.senate.gov

Quick Answers By MCV Law: Just What Is The Average Weekly Wage?

Posted by: MCVLawBlog In: Quick Answers, Workers Compensation 15 Jul 2015 Comments: 0 Tags: Accident, bill crossett, hurt at work, Injured Worker, mcv law, new york state workers' compensation, New York Workers Compensation, syracuse attorney's, Syracuse Injured Worker, syracuse lawyer, syracuse workers compensation, workers' compensation

The Average Weekly Wage (AWW) is one of the most important issues in your case. The AWW determines how much you will be paid in the event that you are out of work for a work-related injury. The higher the AWW, the higher your rate of pay. At MCV Law, one of the first things we look at is whether the AWW has been calculated correctly.

The Average Weekly Wage is just that – an average. It is calculated by taking your total earnings for the 52 weeks prior to your injury and dividing that by the number of days worked, giving you the average daily wage. The average daily wage is then subjected to a multiplier depending on the number of days worked, as provided for by Section 14 of the New York Workers’ Compensation Law. For example, Section 14 provides that a seasonal worker’s AWW should be calculated by multiplying the average daily wage by 200, whereas the AWW of an employee who works 6 days per week is calculated using a 300 multiple. However, the vast majority of employees work 5 days per week, and, thus a 260 multiple is generally used. There are various other arguments that can be made to increase an AWW. At Meggesto, Crossett & Valerino, LLP (MCV Law), we work to support the argument that is likely to produce the highest AWW.
The law also accommodates injured workers who had a second job at the time of their accident. This is referred to as “concurrent employment.” The assumption is that, if your injury prevents you from earning wages at another job, those wages should also be replaced. The concurrent employment must be “covered employment,” meaning that the concurrent employer must carry Workers’ Compensation insurance. Your total earnings from your concurrent job are added to your earnings at your primary employment. Just like the primary AWW, arguments can be made to maximize the concurrent AWW.

Section 14 of the law also accommodates minors. Under the Workers’ Compensation Law, the age of majority is 25. If you are injured at work before reaching the age of 25, a “Minor’s Wage Expectancy” calculation is assessed to determine what you would have been making at the age of 25. A Minor’s Wage Expectancy determination applies at the time of permanency. The determination is made by analyzing the injured worker’s performance reviews and potential for promotion, as well as looking at what other employees in the same field are earning. For many, this will substantially increase their AWW.

Lastly, the law sets forth maximum and minimum rates depending on the date of accident. Below is a chart demonstrating the maximum rates since 2009. The current minimum rate is $150.000.

Date of Accident	Maximum Rate
July 1, 2009 – June 30, 2010	$600.00
July 1, 2010 – June 30, 2011	$739.83
July 1, 2011 – June 30, 2012	$772.96
July 1, 2012 – June 30, 2013	$792.07
July 1, 2013 – June 30, 2014	$803.21
July 1, 2014 – June 30, 2015	$808.65
July 1, 2015 – June 30, 2016	$844.29

3 Reasons Why You Should Have an Attorney

Potential clients often ask us whether or not they need an attorney. The short answer to this question is no, injured workers are not required to have an attorney. However, there are 3 key reasons why we believe injured workers should have an attorney.

1. Your Rights – Injured workers need someone on their side. The insurance company will have an attorney representing their rights, so it is important to have someone looking out for your rights. The insurance company does not work for you. In fact, their main goal is to save money. A common misconception is that the insurance company must explain what they are doing to you, but this is not true. The insurance company has no obligation to inform you of your rights or even explain the law to you. Additionally, the Judge does not work for you. While the Judge’s role is to administer justice, the Judge has no obligation to fight for your rights. As claimants’ attorneys, we are on your side and it is our role to see that you receive every benefit you are entitled to under the law.

2. The Paperwork – The Workers’ Compensation system has over 50 forms for injured workers to use for various reasons. In addition to the forms designated for you, there are numerous other forms designated for insurance carriers. If this is not enough, injured workers often receive paperwork from the Workers’ Compensation Board pertaining to their case. This creates a lot of mail and can be very overwhelming for an injured worker simply trying to get better. Also, much of the paperwork can be very difficult to understand. At MCV Law, we help our clients understand the paperwork they receive and help them decipher what is important and what is not.

3. Medical Care – Although most injured workers trust their doctors, many of them are confused by what their doctor is saying in their medical reports. As attorneys, we work to help clarify what is in your medical reports and how it will impact your case. For example, if your doctor has you at 75% temporary disability, he or she is saying something about your ability to return to work.

Although you can Google the law, call the Workers’ Compensation Board, read Blogs, etc., this is not the same as working with a team of dedicated attorneys, client advocates, paralegals, and other important staff that are focused exclusively on representing your interests. Every case is unique and our attorneys strategize, plan, and execute based on the particular facts and circumstances of each case – something the other sources cannot do for you.
Bethany Nicoletti

Phone: 315-471-1664

Quick Answers By MCV Law: Just What Is New York Workers’ Compensation Law?

Posted by: William Crossett In: Quick Answers, Workers Compensation 08 Jul 2015 Comments: 0 Tags: hurt at work, Injured Worker, mcv law, new york state workers' compensation, New York Workers Compensation, syracuse attorney's, Syracuse Injured Worker, syracuse workers compensation, workers comp, workers' compensation

New York’s Workers Compensation Law is an employee’s only remedy for injuries arising “out of or in the course of employment”. This means that if you are injured or hurt while at work or develop a sickness or disease that is caused by your employment, you are entitled to Workers Compensation benefits. In most cases, the Worker’s Compensation law prevents you from suing your employer, with the exception being an intentional act by the employer, such as an assault.

If your injury, sickness, or disease is a result of the negligence of a third party who is not a co-employee, you may have the right to bring an action in addition to your Workers Compensation case. This is commonly referred to as a third party action.

Some examples of third-party actions are:

An action against a property owner who has a statutory duty to provide a safe place to work. This usually occurs on construction sites, particularly regarding falls from elevated heights.
An action against an owner of an automobile or truck that caused a serious injury to an employee driving in the course of employment.
An action against the manufacturer of a machine or device that caused injury due to a defect or lack of warning.

If a recovery is made in the third-party action, the Worker’s Compensation carrier is entitled to be reimbursed for what was paid in the Workers Compensation case.

In New York, Workers’ Compensation benefits include lost wage benefits and medical care that is causally related to the injury, sickness, or disease.

For a more in depth look at workers compensation, click here.

Disclaimer: Quick Answers by MCV Law is provided by the attorneys and Meggesto, Crossett and Valerino, LLP. The content contained in this post, as well as on the website as a whole, is provided for informational purposes only and should not be construed as legal advice on any matter.

My Two Cents on Respect and Our Mission

Posted by: William Crossett In: Workers Compensation 24 Jun 2015 Comments: 0 Tags: bill crossett, Injured Worker, New York Workers Compensation, Syracuse Injured Worker, syracuse lawyer, syracuse workers compensation, workers' compensation

INJURED WORKERS DESERVE RESPECT

Recently, a significant part of the national conversation has been about respect. Respect for Black and Hispanic lives, respect for those accused of crimes, and respect for police and law enforcement officials. Certainly, this conversation is important and overdue.

Also overdue, in my opinion, is the conversation about respecting the men and women who are injured every day at work. Injuries occur in every line of work without discrimination. Certain injures, however, seem to garner more respect. Is that because certain lives are more important than others or because certain injures are undoubtedly going to result in a permanent disability?

I think not. Rather, I suspect that we perceive certain circumstances as repugnant. No one asserts that an on-the-job injury is desirable. However, an acute injury is more likely to be accepted than an injury that is not readily apparent.

Time and time again an injured worker tells us that they thought their back pain would go away in a couple of days or over the weekend, or that they did not want to report their injury due to fear of being labeled a complainer, a bad employee, or a person on compensation. Injured workers commonly tell us that they need to work, that they like their job, or are unsure of what was wrong and just wanted to see their doctor first.

Why don’t employers value the word of their employees? Have they hired cheaters? I doubt it. Rather, I believe that there is a stigma attached to both the injured worker and employers – a stigma that both want to avoid.

No one seeking to get ahead wants to be an injured employee collecting compensation to support their family instead of working and earning real wages. The lifestyle of spending days and nights in pain, trekking from medical appointments, to therapy, to court, just to stay above water is far from appealing.

No employer wants to have to report that something went wrong and an employee was injured, specifically if the injury resulted from one of the employer’s own processes. Nor do employers want to incur additional costs and expenses associated with an injury.

Despite this, it eludes me as why conversations about this topic rarely take place – a conversation in which both parties respect each other’s perspective and a realistic plan is formulated.

Instead, the process often starts with no respect. For example, employers often challenge that an injury even occurred, especially if it was not immediately reported or witnessed. Typically following this is litigation, where the employer challenges both the underlying circumstances and the medical treatment needed thereafter.

While I do believe the recent procedural, regulatory, and legislative changes were well-intended, they have had unforeseen consequences that have made medical treatment harder to find and understand. These consequences have resulted in even more litigation, and delays in the injured worker’s recovery, which adds costs to both sides. This results in a further lack of respect for the injured worker.

At MCV Law we strive to understand the issue posed above, and to ensure that our clients are respected not only by us, but by their employers, insurance carriers, and the Workers’ Compensation system.

Just what is Medical treatment and how do I find it?

Posted by: William Crossett In: Workers Compensation 19 Jun 2015 Comments: 0 Tags: bill crossett, Injured Worker, New York Workers Compensation, Syracuse Injured Worker, syracuse lawyer, syracuse workers compensation, william crossett, workers' compensation

The law says that an injured worker is entitled to causally-related medical treatment. This simply means medical treatment related to an injury or illness that occurred at work. In the real world, this means that you can see a doctor or medical provider, such as a chiropractor or a physical therapist, who accepts New York State Workers’ Compensation insurance, has been approved by the Workers’ Compensation Board to treat injured workers, and completes the required forms.

It is often difficult to find medical providers to treat injured workers. In fact, many family doctors and internists have elected not to treat injured workers even if they generally provide them with routine medical care. Thus, conservative care for a back or extremity injury that was once offered by a family doctor is now referred to the big orthopedic practices, which are set up to handle Workers’ Compensation. In other specialties such as lung, heart or hearing loss cases, familiarity with the forms and procedures is limited, because these injuries are rarer. A list of board authorized medical providers can be found here: http://www.wcb.ny.gov/hps/HPSearch.jsp.

The medical providers are paid according to a fee schedule prescribed by the Board and are required to complete special forms. The forms are referred to as the “C-4 family” and can be found here: http://www.wcb.ny.gov/content/main/forms/Forms_HEALTH_PROVIDER.jsp.

Many medical providers have opted out of the Workers’ Compensation system because they believe that the fee schedule is inadequate, especially given the time and effort that is required to complete the forms. While a new fee schedule was proposed, it was withdrawn and is now being reworked to encourage more universal acceptance.

Consequently, injured workers with injuries to their back, neck, upper, or lower extremities, will most likely find themselves at an orthopedic practice shortly after their injury. Treatment for these sites is now subject to the Medical Treatment Guidelines. The Guidelines lay out acceptable treatments, as well as the sequence and duration for such treatment. If your doctor or medical provider wants to vary from the Guidelines, a variance must be filed and authorization must be obtained. A link to the Guidelines can be found here: http://www.wcb.ny.gov/content/main/hcpp/MedicalTreatmentGuidelines.

The Guidelines also require pre-authorization for more complicated treatments, such as fusion of the vertebrae of the low back. This process brings further requirements for doctors to follow. Specifically, doctors must complete and properly file a C-4AUTH form and wait 30 days for the Carrier to respond. The Carrier may approve or deny the request. To properly deny, the Carrier must provide evidence to support their denial, such as an opinion from an Independent Medical Examiner. Although a denial can be challenged in court, the process is still complicated and lengthy.

Are you paying out of your pocket for treatment for your comp case?

Posted by: William Crossett In: Community, General, Personal Injury, Workers Compensation 17 Apr 2015 Comments: 0 Tags: Accident attend bill crossett carriers doctor crossett & valerino degree of disability disability Doctor exaggerate hurt at work Illness IME IMe's Injured Worker injured workers insurance insuranc, mileage, rate, reimbursement

Are you paying out of your pocket for treatment for your comp case?
Can I get my co-pays for the doctor back?
Can I get reimbursed for mileage to and from the doctor?
Can I get reimbursed for my medications?

At Meggesto, Crossett & Valerino, LLP, we make sure our clients do not pay out-of-pocket for costs associated with their claims and that they receive the reimbursement they are entitled to.

Medical professionals, doctors, hospitals, and facilities treating you in New York State for your Workers’ Compensation injuries cannot bill or charge you for any costs. All billing is to be sent to the Insurance Company responsible for your claim. This is the law of New York State.

Sometimes, especially at the start of a claim, it may be unclear who your Workers’ Compensation insurance carrier is, or how they should be billed. If you happen to pay for any treatment, keep your receipt for reimbursement. Injured workers are not responsible for co-pays.

Likewise, if you are prescribed medications and the pharmacy is unable to bill the insurance carrier, you can be reimbursed for any costs you incur as a result. We encourage you to keep a receipt of such costs in order to be reimbursed.

In addition to the above reimbursements, you are also entitled to reimbursement transportation costs. This includes mileage reimbursement to and from your doctor visits. If you use a private vehicle to get to your appointments, the current reimbursement rate is $.56 per mile as of 1/1/2014. Below is a table of mileage rates for the past 5 years A complete listing of mileage rates is available and linked here http://www.wcb.ny.gov/content/main/SubjectNos/sn150_18_1.jsp

1-1-10	50
1-1-11	51
7-1-11	55.5
1-1-12	55.5
1-1-13	56.5
1-1-14	56

Mileage is paid round trip from the location you departed to attend the appointment to the point you returned to. Generally, this includes mileage from your home to the doctor or therapist and back home again. If you use public transportation or pay for parking or tolls, you should keep those receipts too for reimbursement purposes.

There is no required form to claim mileage or other out of pocket costs for reimbursement. A reimbursement request must be sent to the insurance carrier and must include the date you traveled, the location you went to, and the mileage to and from that location. Form C-257 can be used to submit mileage to the insurance carrier. That form can be found at located here: http://www.wcb.ny.gov/content/main/forms/Forms_CLAIMANT.jsp#C257

Also many times your medical providers can supply you with a listing of the dates and locations you attended treatment.

At Meggesto, Crossett and Valerino, we recommend that you submit requests for reimbursement promptly, going back no longer than six months from the date of your appointments. Older and lengthy requests take longer to be processed for payment by the insurance companies and often become the subject of a dispute. Please note that mileage not associated with treatment is not generally reimbursed, this includes mileage to hearings, the pharmacy, or your attorneys’ office. Mileage to an IME is reimbursable.

We also recommend you keep a copy of any submission you make to the Insurance carrier, including forms and receiptsand also make a record of when you send in such paperwork. If you haven’t received a response within 60 days, you should contact your attorney for assistance in following up on the request.

For more information on workers compensation, click here.

What can I do when I am on Workers’ Compensation?

Posted by: William Crossett In: Workers Compensation 10 Apr 2015 Comments: 0 Tags: Accident, degree of disability, injured at work, permanent disability, syracuse attorney's, Syracuse Injured Worker, syracuse lawyer, syracuse workers compensation, workers' compensation

Some typical questions include:

Should I stay inside?

Can I go to the grocery store?

Can I drive?

Can I watch my grandchildren?

Can I mow my lawn?

Should I cancel my vacation?

At Meggesto, Crossett & Valerino, LLP, we advise injured workers to pursue their normal activities as much as their condition allows, and to use common sense when doing so.

Injured Workers’ activities should be consistent with their doctor’s restrictions and degree of disability. Doctors and other medical providers, will usually make recommendations of which activities to avoid or suggest limitations, not only regarding work, but also regarding activities of daily living. If the medical provider does not make such recommendations, be sure to ask for them and obtain them in writing whenever possible.

Most often after a traumatic injury or a surgical procedure, medical providers will opine that an injured worker has a temporary total disability. In these instances, it would be inconsistent to undertake activities such as lawn mowing, snow shoveling or physical, recreational activities. For example, we would not recommend that a claimant go bowling, skiing or dancing. We would also recommend refraining from strenuous hobbies, such as homecare and car repair. However, if you recently underwent surgery, it would not necessarily be inconsistent to take a planned vacation south to recover.

The question of “What can I do when I am on Workers’ Comp?” becomes particularly troublesome when your doctor suggests a partial degree of disability. Many times when this happens, the employer will not allow an injured workers to return to work, with restrictions. Nevertheless, Workers’ Compensation benefits may be reduced as a result of the partial disability and many wonder if looking for work elsewhere will jeopardize their Workers’ Compensation benefits.

When your doctor suggests a partial degree of disability, it becomes particularly important to understand exactly what restrictions your doctor recommends. At MCV law we recommend that our clients discuss their abilities, including their activities of daily living, with their doctor. We recommend that the injured worker obtain written restrictions so as to avoid any misunderstanding. Some medical providers use a functional capacity evaluation to assist in setting restrictions and limitations.

Additionally, we encourage injured workers not to exaggerate their injury or disability and to be candid with their doctors and Independent Medical Examiners about their activities of daily living, including any hobbies and volunteer activities. Importantly, we encourage injured workers to use common sense to avoid an allegation that the injured worker has committed fraud under Section 114 of the Workers’ Compensation Law.

Section 114(a) is essentially a fraud provision that imposes both mandatory and discretionary penalties for claimants who violate this provision. Typically, a Section 114(a) violation will result in a suspension of benefits. False statements made to doctors or Independent Medical Examiners are often the basis for a Section 114(a) violation. Therefore, is very important to be candid with your doctors and Independent Medical Examiners about your condition and daily activities.

In conclusion the answer is, use your common sense. Be candid and open with your Medical Providers, document the restrictions or limitations suggested and do not exaggerate or over play your degree of disability. For more information on workers compensation, click here.

Is it Disability, Compensation or Something Else?

Should I file for Disability, NYS Workers Compensation or something else?

Often people call MCV Law requesting help with a “Disability Case. “ They are injured, unable to work and looking for help to pay the day-to-day bills. The first thing the Attorneys and Staff at MCV Law do is listen.

We carefully listen to your story. We’re listening for particular facts and circumstances that will help us determine what remedy or remedies may be available to you. We ask targeted questions, to determine where you may or may not be in the process of making a claim.

Generally we are trying to determine whether or not you have one of the following:

A New York State Disability Case.
A New York Workers’ Compensation Case.
A No Fault Motor Vehicle Accident Case.
A Personal Injury Action.
A Private Short or Long-Term Disability Case.
A Social Security Disability Case.

Sometimes, there is more than one type of case arising from a single event. For instance if you’re involved in a Motor Vehicle Accident, while Working you have both a Workers Compensation claim and a No Fault Motor Vehicle Accident case. If the Accident was caused by a third-party you may also have a Personal Injury Case. If the injury is life changing you may have a Social Security Disability Case as well.

Of course, every type of case has different rules, the most important of which is the Statute of Limitations. That is the time in which the injured person must act to protect their rights. Often, especially in cases dealing with municipalities or other quasi-government entities, the statute limitations is extremely short. Therefore it is important to seek legal advice shortly after your injury or injuries. MCV Law does not charge you for the initial consultation.

At Meggesto, Crossett & Valerino, LLP, we pride ourselves on being able to assist the injured person with regard to all of the cases listed above. Instead of looking only for one type of case, we look at the injured individual as a whole. We work to craft a legal strategy that is most likely to produce the best result for you, in a timely and cost-effective manner.

Be sure to click here for further information on workers compensation, and here for a more in depth look at social security disability.

6 Things to Know about Independent Medical Exams

1. Do I have to attend? Yes, the insurance carrier is entitled to have you examined by their doctor. If you do not attend it will harm your case. Your benefits may be stopped, and your treatment and prescriptions suspended.

2. What is the purpose of the exam? Generally the carrier is seeking another opinion on the nature and extent of your injuries, your need for treatment, and your level of disability.

3. What can you expect at the exam? An IME is not like a visit to your doctor – the IME is not treating you. The exam is likely to be very quick and focused on your degree of disability or the need for treatment or prescriptions. You may be asked to complete a questionnaire prior to the exam. Answer the questions carefully, and be sure you tell the doctor about any prior injuries or new injuries. Do not exaggerate or overstate your injury.

4. What is the IME looking for? The IME doctor will look for any inconsistencies in your behavior. This could include simple observations or may involve video surveillance. The carrier often has an investigator record video of you the day before the exam, the day of the exam, and the day after the exam to try to find inconsistencies. Be frank with the IME and your doctors about your activities of daily living. Also let the IME know of any side effects of your medications.

5. What occurs after the exam? The IME exam generates a report that is sent to all parties generally within 10 days. The report may or may not agree with your doctor and often will vary, especially in assessing your degree of disability. When the carrier receives the report, they will typically request a hearing to change the level of benefits paid. If the dispute cannot be resolved, litigation will start.

6. What is the role of your attorney when you have an IME? Your attorney is aware of your IME. It is best to talk to your attorney before you attend. Your attorney will also work with you to obtain evidence to counter the IME’s conclusions before a hearing.

5 Things Every Newly -Injured Worker Should Know

5 Things Every Newly-Injured Worker Should Know

New York Workers’ Compensation

1. The New York Workers’ Compensation System is driven by medical evidence.

2. If you are injured at work, see a doctor right away, and continue to see the doctor while you are out of work.

3. Give a complete, consistent, and accurate history of your injury or illness.

4. The New York State Workers’ Compensation Law has a two-prong Statute of Limitations. You have 30 days to notify your employer that you were injured on the job or have a work-related illness. You then have 2 years to file a claim for Workers’ Compensation benefits.

5. Having a “Carrier Case Number” does not mean that you have a New York State Workers’ Compensation case. The Workers Compensation Board assembles cases when they have both a claim and medical evidence to support a work-related injury or illness.

7 Predictions for New York Workers’ Compensation in 2015

Posted by: William Crossett In: Workers Compensation 02 Jan 2015 Comments: 0 Tags: bill crossett, crossett & valerino, hurt at work, mcv law, mcvlaw, meggesto, new york state workers' compensation, syracuse attorney's, syracuse workers compensation, william crossett, workers' compensation, workers' compensation 2015

The Team at MCV Law and I have put together our predictions for New York Workers’ Compensation in 2015.

In 2015 injured workers /claimants will see:

1. Confusion over lost wage payments – we all miss the Form C-8 that has been eliminated by the Board. Keep track of your payments or at least your stubs.

2. Reliance on electronic forms – which seek standardized answers to complicated issues, especially for degree of disability. If your disability is less that Temporary Total try to obtain specific written restrictions regarding your employability.

3. Chaos over the implementation of the Non Acute Pain Guidelines that became effective in December of 2014. Discuss with your doctor potential limitations on the medications prescribed.

4. More challenges from insurance companies and Special Funds Conservation Committee regarding long term pain medications. Understand your long term medications and discuss with your doctor how they help you work or complete the activities of daily living.

5. Fewer primary care doctors accepting Workers’ Compensation – we think the fee schedule should be changed so as to encourage participation by all medical providers.

6. Challenges from the Business Council to the Schedule Loss of Use (SLU) portion of the law. MCV Law will continue to work with the Injured Workers Bar Association and the Workers Compensation Alliance to protect your rights.

7. Aggressive pursuit on the part of insurance companies to stop lost wage payments by argument a claimant’s failure to remain “Attached to the Labor Market.” Work with and documents your efforts with the “One Stop Centers”, Keep an active Job search using the Boards form C-258 and participate with Acces-Vr.

William Crossett and the Disability team at Meggesto, Crossett & Valerino, LLP.

Email: crossett@mcvlaw.com

Phone: 315-471-1664

Understanding Social Security

Posted by: William Crossett In: Social Security 02 Jan 2015 Comments: 0 Tags: disability, kim slimbaugh, kimberly slimbaugh, permanent disability, social security, social security disability, social security disability benefits, social security retirement, syracuse lawyer

If you are planning to take Social Security Retirement Benefits before full retirement age, are you doing this because you want to stop working or because you have an illness or injury that is forcing you to stop working?

If you are taking early retirement due to an illness or injury, you should consider filing a claim for Social Security Disability Benefits. You can do both, meaning you can collect your Reduced Retirement Benefit while you are waiting for a decision on your Social Security Disability Claim. If Social Security approves your disability claim, Social Security will pay you the difference between your Disability Benefit and your Reduced Retirement Benefit for the months that you are eligible for both. Thereafter, you will continue to receive your Disability Benefits.

-Kimberly Slimbaugh

Email: kslimbaugh@mcvlaw.com

11th Annual Evening of Cuisine to benefit Charity for Children

Posted by: MCV Law blogger In: Community 04 Nov 2014 Comments: 0

Please join us at the 11th Annual Evening of Cuisine to benefit Charity for Children on November 10th, 6:00 PM at Drumlin’s Country Club.

Call us at 315-436-4822 for ticket info.

We hope to see you there!

Some brief tips and reminders for buying/selling your home by Christopher Stringham

Posted by: MCV Law blogger In: Real Estate 02 Oct 2014 Comments: 0

We are right in the beginning of home buying/selling season and for those of you who have bought/sold your home, you know it can be a hectic process with all of the paperwork, coordination, and confusion that can take place. Following are some tips and reminders that can help eliminate some of the confusion for those of you who will be buying or selling your home.

First, if you are planning on hiring your an attorney to assist you with your real estate transaction, it is always a good idea to have a conversation with him/her prior to signing the purchase contract. It is generally an unpleasant surprise for a signed purchase contract show up at your attorney’s office without having discussed it first. Discussing the transaction prior to signing the contract can streamline the process whether it be a buy or a sell. More importantly, there are very quick deadlines for attorney approval, usually 3 business days. If that time passes, then the contract is generally deemed approved and an attorney will have a difficult time amending any terms, if he/she is able to do so at all.

Another helpful tip to make the process go more smoothly if you are selling your home is to try and locate your abstract of title and survey. If you cannot easily locate it, then your attorney should be able to help you with this.

For home buyers, you will want to remember that a pre-approval is different than an actual mortgage commitment. Your pre-approval is something that you will want to have prior to looking for a home and enlisting the help of a real estate agent. The mortgage commitment is something that you get from your lender once you know what home you will be purchasing. It generally has a number of contingencies that must be completed before the lender will clear you to close.

In general, sellers must be moved out of their home on or before the date of closing. This means that all personal items are out of the home and the home is in “broom swept” condition. All hazardous materials must be out of the house as well, this generally includes old paint.

The seller will also want to make sure that they do a water/electrical meter reading before vacating the property. The buyer will want to be sure to change the utilities to their name on the day of closing.

The buyer will want to do a final walkthrough of their new home as close to the closing as possible, I usually recommend within 24 hours of the time of closing.

Hopefully these tips come in handy and help your buy/sell go as smoothly and stress-free as possible.

Christopher Stringham

Phone: 315-471-1664

Most Health Clubs Must have a Defibrillator on the Premises: Heather La Dieu

Posted by: MCV Law blogger In: General 18 Sep 2014 Comments: 0

Health clubs with 500 or more members must have an Automated External Defibrillator

(“AED”) on the premises pursuant to the General Business Law and the Public Health Law. An

AED is a portable medical device for delivery of an electroshock to restart normal heart rhythm.

In addition, health clubs with 500 or more members must have at least one individual

with training in AEDs and CPR on the premises during business hours. It should be noted that

any individual who uses the AED will have limited liability through what is commonly known as

the Good Samaritan Law. The Good Samaritan Law provides that any person who voluntarily,

and without the expectation of compensation, renders aid will not be liable for damages unless

the injuries were caused by gross negligence.

Unbelievably, the Courts are currently divided as to whether the person trained to use

the AED has an affirmative duty to actually use the life saving device on a person having a heart

attack. Certainly, the law was meant to ensure a higher level of safety for people who belong to

health clubs. It is undisputed that the likelihood of cardiac arrest increases in health clubs where

people engage in physical exertion and that there is a decrease in fatality rate with the immediate

use of an AED and CPR. However, the presence of an AED will be of no benefit unless it is

actually used.

Heather La Dieu

Phone: 315-471-1664

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

Problems at Closing: Chris Stringham

Posted by: MCV Law blogger In: Real Estate 05 Sep 2014 Comments: 0

Problems at Closing

The closing is scheduled. Finally, there is a light at the end of the tunnel. If you are selling your home then this means that you are likely in the process of packing up all of your junk belongings that have accumulated over the years. If you are buying a home then you have survived jumping through all of the hoops to ensure you have the funds present on the big day.

By the time the closing day arrives then any issues regarding the home or title of the home should have been addressed long ago so that the only thing left to do is sign your life away if you are the buyer or collect your proceeds if you are the selling party. Most closings do indeed function this way. However, very often an issue arises that needs to be addressed at the actual closing.

Generally, the problems that arise at the closing involve issues with the actual house (i.e. broken window, lawn not mowed, rug stain, etc.). These problems are things that arose after or were not addressed by the home inspection and are usually found at the time of the final walkthrough. On a side note, buyers should always schedule their final walkthrough as close to the actual closing as possible to avoid any surprises.

Any issues that are discovered after the home inspection should be disclosed to your attorney immediately. The last thing that any of the parties involved in the transaction want is to be surprised by issues at the closing. The more time in advance the issues are known and disclosed to all parties, the more time there is to come up with a solution that all the parties can agree to.

A common solution to deal with a problem at closing may be for the buyer to hold back a portion of the proceeds in escrow until the problem is resolved. For instance, if an electrical problem is disclosed by the seller at the final walk through, it may be reasonable for the buyer to hold back some money until it is determined exactly what the electrical problem is and get an estimate for how much it will cost to fix the problem.

Many, many issues can arise near closing, the most important thing that you can do, especially as a buyer, is alert your attorney as soon as the issue is known so that it can be addressed immediately. Once the buyer signs the papers, fixing the problem can become exponentially both time consuming and expensive

Christopher Stringham

Phone: 315-471-1664

What should I do if I have been in a motor vehicle accident and I have suffered an injury? : Heather La Dieu

Posted by: MCV Law blogger In: Traffic 13 Aug 2014 Comments: 0

What should I do if I have been in a motor vehicle accident and I have suffered an injury?

You must notify your insurance company that you have been in an accident as soon as possible. Personal injury protection, also known as No-Fault, is mandatory on every insured vehicle in New York State. No-Fault provides you with lost wage and medical payments, with certain limitations, up to $50,000 regardless of who is at fault for the accident. More coverage may be available if you purchased additional No-Fault coverage beyond the statutory minimum of $50,000.

A No-Fault application will be sent to you after you notify your insurance company of the motor vehicle accident. It is important to note that most insurance companies generally require you to fill out a no-fault application within 30 days from the date of the accident or the insurance company may deny coverage. If you do not have the application within 30 days, it is recommended that you write to your insurance company regarding the details of the accident and submit a copy of the police accident report.

If you were a passenger in another person’s vehicle, you apply for No-Fault benefits from the insurer of the auto in which you were riding. Also, your No-Fault benefits would come from the vehicle that struck you if you were a pedestrian or bicyclist. If you do not know the name of the insurance company, obtain a copy of the police report, and the insurance code on the report will give you the proper name.

It is important to remember that No-Fault does not reimburse you for pain and suffering or any permanent disability as a result of your motor vehicle accident. In order to make a claim against another driver for damages beyond No-Fault, you will need to prove that you have met the serious injury threshold. If you believe that you are entitled to damages beyond No-Fault, it is strongly recommended that you consult with an attorney.

Heather La Dieu

Phone: 315-471-1664

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

New York Workers Compensation…it is more than forms: Family of C-4’s: William W. Crossett

Posted by: MCV Law blogger In: Workers Compensation 18 Jul 2014 Comments: 0

While the New York Workers Compensation Law requires prompt medical treatment, injured workers often find their medical treatment anything but prompt. In the last few years the New York Workers Compensation Board implemented rules and regulations supposedly aimed at improving the process, however these rules have only made the process more difficult.

In the greater Syracuse area, where Meggesto, Crossett & Valerino, LLP concentrates its practice, most family practice doctors have declined to treat injured workers, even if they are long standing patients. The doctors primarily complain of cumbersome reporting requirements, insufficient payment, and the lack of respect given to doctors within the Workers’ Compensation system.

Despite the difficulty in obtaining treatment, injured workers are still required to provide medical evidence of their injury, including the treatment they require, their degree of disability, and their doctors’ recommendations. Traditionally, the Workers’ Compensation Board required medical providers to report injuries on a form know as a C-4. The medical provider was supposed to file this form with the Workers’ Compensation Board within 48 hours of treatment and then follow-up with another C-4 after the next visit. Generally, reports were required to be filed every 30-45 days thereafter.

However, the Workers Compensation Board recently updated the forms they require of doctors to a “family of C-4’s.” Now, not only are doctors still required to file the initial C-4, but they are now required to file a C-4.2 for each visit until permanency. At permanency, doctors are required to report their findings on a form called the C-4.3. And the forms went from one page to four pages!

In addition to requiring more forms, the Workers’ Compensation Board issued new Medical Treatment Guidelines in 2010, which set forth requirements for doctors to follow when treating injured workers. Of course, the guidelines require doctors to file certain forms before performing particular types of treatment. And, if a certain treatment falls outside the guidelines, the doctor is required to file a Variance in order to obtain authorization for such treatment.

At Meggesto Crossett and Valerino, LLP we understand the problems injured workers have finding medical treatment, obtaining permission and fighting variance denials. Our staff and attorneys understand the forms and the guidelines, and know what it takes to get a Variance granted. We also recommend that you discuss your medical needs with an attorney and be sure you have a strategy that will allow you to get the medical treatment you need to recover.

William W. Crossett, IV
Partner

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

How can I protect myself if I cooperate with the government in exchange for leniency? Heather La Dieu Answers

Posted by: MCV Law blogger In: General 27 Jun 2014 Comments: 0

Federal prosecutors will typically require an individual to make a “proffer” of any information he or she will provide in exchange for leniency. Any statements made during plea negotiations with the government are generally inadmissible under Federal Rules of Evidence 4101 and Federal Rules of Criminal Procedure 11(f)2.

However, the reality is that any statements offered to the government are usually governed by a proffer agreement and typically are not complete immunity agreements. Most proffer agreements contain language that will allow the government to impeach you with your statement if your subsequent testimony is inconsistent with your proffered statement. Moreover, the government can use the information you gave to conduct further investigations and the information obtained as a result of those investigations may be used against you in other charges.

Therefore, due to the limited protection available, great consideration should be given prior to speaking with prosecutors. It is highly recommended that you consult with a lawyer prior to making any statements to the government.

Heather La Dieu

Phone: 315-471-1664

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

When is my closing?! : Christopher Stringham

Posted by: MCV Law blogger In: Real Estate 11 Jun 2014 Comments: 0

When a new real estate purchase contract shows up on my desk I review it for approval and take note of some important dates that are found in the contract. These include when the contract needs to be approved by, when the home inspection and any other tests need to be completed by, when the buyer needs his/her/their mortgage commitment letter by, and finally, when the all-important closing is supposed to take place.

Generally, depending on any number of circumstances (type of financing, other contingencies, etc.) the closing date gets set a month or a month and a half after the contract date. In my experience all the parties involved in the transaction (buyers, sellers, realtors, attorneys) try their best to get everything set to close as close to the contract date as possible. However, inevitably some unforeseen circumstance or problem arises that makes scheduling the closing for the contract date impossible.

What most people do not realize is that most residential real estate contracts call for a closing “on or about” a certain date. This means that the closing does not have to be scheduled on the exact closing date found in the contract. Rather, it gives a time frame that usually means 10-15 days on either side of the date listed. This is done so that if a problem arises or if the buyers have not been cleared to close by their lender, then all of the parties have some flexibility. The other type of closing date that can be set is called a “time of the essence” clause. This means that the closing must take place on or before the specific date set in the contract. These types of clauses are not generally found in residential real estate contracts as the default contract is “on or about.”

Here are a few helpful reminders when entering into a real estate transaction and setting a closing date:

Don’t schedule the movers too far in advance

Don’t schedule a vacation too close to the closing date

Be flexible

When buying or selling a home, you need to have a little flexibility when it comes to scheduling the closing. Remember, everyone is generally trying to reach the same goal in a real estate transaction, but issues arise and the closing date may need to be moved. If you factor in a little flexibility then everything should go a lot smoother.

Christopher Stringham

Phone: 315-471-1664

New York Workers’ Compensation . . . it is more than forms. William W. Crossett Explains

Posted by: MCV Law blogger In: Workers Compensation 30 May 2014 Comments: 0

In the last few months, the attorneys at Meggesto, Crossett & Valerino, LLP have noticed that more injured workers are arriving at our office with multiple forms that they have received. Some of the forms are sent directly by the New York State Workers’ Compensation Board to the injured worker, while others are sent from employers and insurance companies. Some of the forms have come from the Workers’ Compensation Board web site.

I am sure that most injured workers fill out the forms hoping that doing so will speed up the process and move their case along. While this may be true, it is important to understand the questions asked on the forms and the impact the answers may have on your case.

The most important form completed by an injured worker is the Employee Claim form, also know as the C-3. The C-3 is the equivalent of a Complaint in a civil action in New York Supreme Court. This form carries high significance within the Workers’ Compensation system and care must be taken when completing this form. Completing this form hastily often leads to problems later on in a case.

An important point to consider when completing this form is that, when a Judge or attorney review the C-3 form, they assume it was completed by a thoughtful, rational person who understands the questions and the consequences of the answers. They are not reading the form from the mindset of an injured worker who is quickly scribbling answers while in pain and waiting for medical care. They are also not reading the form from the point of view of an angry injured worker answering questions late at night because they are mad that they did not receive their check!

The most common area that an injured worker gets into trouble when completing this form is the question pertaining to any prior injuries. The question on the C-3 form asks whether the injured worker remembers a prior injury to the same body site. Surprisingly, many people make a crucial mistake answering this question, because, they either do not recall a past injury, they think it was to a slightly different body part, or they are afraid that answering yes will somehow hurt their case.

A forgetful answer, a mistake, and, of course, a false answer can lead to a determination that an injured worker has violated the fraud provisions of Section 114-a of the Workers’ Compensation Law. A violation of this provision is likely to cost you all money benefits, both past and future. At Meggesto, Crossett and Valerino, LLP we recommend that you err on the side of caution and that you speak with an attorney before completing the C-3 form in order to protect your right to Workers’ Compensation benefits.

William W. Crossett, IV
Partner

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

Can I get Social Security Disability Benefits if I suffer from Guillain Barre Syndrome? : Kimberly Slimbaugh

Posted by: MCV Law blogger In: Social Security 23 May 2014 Comments: 0

Guillain Barre Syndrome (“GBS”) is a very serious autoimmune disorder that causes your immune system to attack your nervous system. GBS results in widespread tingling and weakness of extremities which can lead to pain and even paralysis. The symptoms of this condition may include:Weakness and tingling sensation in the legs often spreading to the arms and upper body. The symptoms can increase in intensity to the point that the muscles cannot be used at all. This can become very severe causing the person to become paralyzed; in this case Guillain-Barre Syndrome can become life threatening. Paralysis could interfere with breathing, blood pressure, and/or heart rate.

Some people are lucky and their symptoms go away after a few weeks of treatment. Sometimes the symptoms last longer; this is especially true if you suffer from some other condition in addition to GBS. If your symptoms are severe and long lasting, it may prevent you from working and you may qualify for Social Security Disability Benefits.

The Social Security Administration’s (SSA) blue book explains how the SSA evaluates different conditions to determine your eligibility for benefits. The symptoms caused by Guillain Barre Syndrome can be evaluated under a number of different listings. If your GBS has been caused by another condition, such as lymphoma, AIDS, or lupus, you may qualify based on the requirements for these conditions.

However, there are severe symptoms commonly caused by GBS that have their own listings, such as:

• The major dysfunction of a joint – You may qualify for SSD benefits if Guillain Barre Syndrome has caused damage or discomfort in a major joint, making it difficult for you to walk or use your arms or hands to complete tasks.

• Chronic respiratory insufficiency – If GBS has caused respiratory problems, significantly limiting intake of oxygen, you may be eligible for benefits.

If you can’t find a listing that matches any of your specific Guillain Barre Syndrome signs or symptoms, you may still qualify for SSD benefits if you can provide evidence thatyour condition makes it impossible for you to perform the functions that would be needed to do any type of job.

When applying for SSD benefits for Guillain Barre Syndrome, you must submit detailed medical documentation that provides evidence of the severity of your symptoms, including:

• A note from your Doctor detailing your symptoms and prognosis

• The history of the treatments you have received and your response to those treatments

• Imaging reports, such as x-rays or CT scans, showing damage to major joints

• History of hospitalizations related to your GBS symptoms.

Guillain Barre Syndrome can severely limit an individual’s ability to function, but many people suffering from this condition are denied Social Security Benefits. If you are unable to perform any type of work as a result of your GBS symptoms you should contact an experienced Social Security Attorney to review your case.

Kimberly Slimbaugh
Partner

Phone: 315-471-1664

State of New York Commission on Quality Care and Advocacy for Persons with Disabilities, Surrogate Decision-Making Committee Panel.

If I have been in a Motor Vehicle Accident, can I file a claim against the other driver for my injuries? : Heather La Dieu

Posted by: MCV Law blogger In: Traffic 05 May 2014 Comments: 0

In New York State, in order to make a claim against another driver, one of the elements that you will need to prove is that you have met the serious injury threshold. New York Insurance Law Section 5102(d) defines serious injury in nine categories. Therefore, you must satisfy at least one of the nine serious injury standards before you can pursue a lawsuit. Accordingly, you will have met the serious injury standard if you sustain a personal injury that results in:

• Death;
• Dismemberment;
• Significant disfigurement;
• Fracture;
• Loss of a fetus;
• Permanent loss of use of a body organ, member, function or system;
• Permanent consequential limitation of use of a body organ or member;
• Significant limitation of use of a body function or system; or
• A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Consequently, the serious injury threshold makes it more difficult for you to file a claim for additional damages beyond No-Fault. It is obvious that Legislature intended to keep what they consider to be minor personal injury cases out of Court. Therefore, it is important for you to have an attorney that will fight hard to protect your right to be compensated for your injuries.

Heather La Dieu

Phone: 315-471-1664

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

Most Health Clubs Must have a Defibrillator on the Premises : Heather La Dieu

Posted by: MCV Law blogger In: Personal Injury 22 Apr 2014 Comments: 0

Health Clubs with 500+ Members Must Have AED

Health clubs with 500 or more members must have an Automated External Defibrillator (“AED”) on the premises pursuant to the General Business Law and the Public Health Law. An AED is a portable medical device for delivery of an electroshock to restart normal heart rhythm.

In addition, health clubs with 500 or more members must have at least one individual with training in AEDs and CPR on the premises during business hours. It should be noted that any individual who uses the AED will have limited liability through what is commonly known as the Good Samaritan Law. The Good Samaritan Law provides that any person who voluntarily, and without the expectation of compensation, renders aid will not be liable for damages unless the injuries were caused by gross negligence.

Unbelievably, the Courts are currently divided as to whether the person trained to use the AED has an affirmative duty to actually use the life saving device on a person having a heart attack. Certainly, the law was meant to ensure a higher level of safety for people who belong to health clubs. It is undisputed that the likelihood of cardiac arrest increases in health clubs where people engage in physical exertion and that there is a decrease in fatality rate with the immediate use of an AED and CPR. However, the presence of an AED will be of no benefit unless it is actually used.

Heather La Dieu

Phone: 315-471-1664

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

Who is allowed to look at my medical information? : Heather La Dieu

Posted by: MCV Law blogger In: General 26 Mar 2014 Comments: 0

In my last blog, I talked about the Health Insurance Portability and Accountability Act of 1996 (HIPAA) that gives you rights over your health information. With a few exceptions, you have the right to inspect, review and get a copy of your medical records and billing records.

Of course, you have the right to look at your own medical information. Yet, who else is allowed to look at your medical history? Generally, no one is allowed to look at your health information without your permission. However, there are some exceptions where, by law, your medical information may be used and shared for specific reasons. For example, your health information may be used for reporting as required by state or federal law. There are federal and state laws that require reporting when the flu is in your area for instance. In many cases, you may be entitled to know who has looked at your health information.

Fortunately, these exceptions are limited. Generally, your health information cannot be seen or used without your permission. Your doctor may not give your health information to marketing and advertising agencies without your prior written permission for example. In addition, family members cannot obtain information about their relative without the patient’s consent. Similarly, under the New York State Mental Hygiene Law, a patient’s consent is generally needed before disclosures to family members can be made.

However, it should be noted that HIPPA does not prevent your employer from requesting information about your health if your employer needs the information to administer workers’ compensation, health insurance or sick leave. Nonetheless, your health provider may not give your employer your health information directly without your permission. If you believe your HIPPA rights are being violated, you should contact an attorney to protect your rights.

Heather La Dieu

Phone: 315-471-1664

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

Do I Have the Right to get a Copy of My Medical Records? : Heather La Dieu

Posted by: MCV Law blogger In: General 19 Mar 2014 Comments: 0

Yes! The Health Insurance Portability and Accountability Act of 1996 (HIPAA) gives you rights over your health information. With a few exceptions, you have the right to inspect, review and get a copy of your medical records and billing records. If you would like a copy of your medical records, you may have to put your request in writing and pay the cost of copying. Pursuant to the New York Public Health Law, a provider may impose a reasonable charge to make a copy of your medical records, but it may not exceed 0.75 cents per page. In addition, a provider may not deny you a copy of your records because you have not paid for the medical services.

It is important that you review your medical records and make sure the information is accurate. If you believe there has been a mistake, you can request that the health care provider or health plan amend the record. The health care provider or health plan must respond to your request. If there has been an error, the record must be amended. If the health care provider or health plan does not agree there has been a mistake, you still have the right to have your disagreement noted in the file. The record should be updated within 60 days in most cases.

Health information is private and should be protected. In my next blog, I will talk about federal and state laws that protect who may look and receive your health information.

Heather La Dieu

Phone: 315-471-1664

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

MCV Law is proud to be a sponsor of the American Heart Association’s Syracuse Heart Walk.

Posted by: MCV Law blogger In: Community 06 Mar 2014 Comments: 0

The event is on Saturday the 22^nd of March at the Onondaga Community College Campus. Registration begins at 8:00 am in the SRC Arena. The walk itself is two laps around the campus. Meggesto, Crossett & Valerino, LLP is sponsoring the Social Media Booth. Participants in the walk may take a photo with both the Heart Walk and MCV LAW logos to share on Facebook, Twitter and other social sites, using the hashtag #SyrHeartWalk.

We invite you to join with us in supporting this important cause and to consider supporting the MCV Law Team.

For information on how you can help please follow this link to our Heart Walk Page: http://heartwalk.kintera.org/faf/donorReg/donorPledge.asp?ievent=1076617&supid=380702387

On behalf of all the Attorneys and Staff of Meggesto, Crossett & Valerino, LLP. I thank you.

William W. Crossett, IV
Partner

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

Can I still get a home inspection if buying home “as is”? : Christopher Stringham

Posted by: MCV Law blogger In: Real Estate 03 Mar 2014 Comments: 0

An issue that frequently arises early on in real estate transactions is when the seller wants to sell their home “as is” and the buyer wants to have a home inspection. More often than not these seemingly adverse positions can lead to the contract needlessly falling apart. Having been on both sides of this conundrum I am here to tell you that the home can be sold “as is” by the seller and the buyer can have a home inspection too.

Generally, a home inspection is always a good idea for prospective buyers. When home buyers are not permitted to get a home inspection more often than not the deal will fall through because the buyer wants to know what he/she/they are spending their life savings on. Also, buy not allowing the buyer(s) to get an inspection, it makes it appear as though the seller has something to hide.

Just because a home inspection shows some problems with the house does not mean that prospective buyers will back out of the deal. They can then weigh their options and their finances against how much they want to buy that specific house.

The “as is” part of the deal comes into play because the seller does not need to remedy the problems or give the buyer(s) any credits or reduction in purchase price because a home inspection comes back as unsatisfactory.

Ultimately, a revealing home inspection may help the seller in the long term for two reasons. First, if a major problem is shown to exist, the seller may need to adjust the asking price to take into account the defect. Second, the seller may be able to save hundreds of dollars in inspection costs if they are able to obtain a copy of the buyer’s inspection report.

Christopher Stringham

Phone: 315-471-1664

Where is my abstract!? : Christopher Stringham

Posted by: MCV Law blogger In: Real Estate 07 Feb 2014 Comments: 0

Being able to locate your abstract of title and survey can save you hundreds of dollars when it comes time to sell your home. The abstract of title is a bound packet of documents that show the chain of title for your property. When you sell your house it is generally required that you produce the original abstract. If you do not have the abstract then a new one must be created which can cost hundreds of dollars.

For most of us, buying and selling our home is something that does not happen very often and may only occur once or twice in our lifetimes. This can make it difficult to locate important documents when it comes time to sell the home 10, 20, or 30 years down the road.

When buying a home, there is generally another entity (i.e. attorney or bank) that will walk guide you through the process making sure that all the pieces of information get gathered. At the end of the home buying process the new home owners will get a packet of important information. Besides bank documents (copy of note & mortgage, etc.) there may be a copy of the deed, survey, and abstract of title. If you kept the packet of documents in a safe place and you remember where the safe place is, then great you get a gold star.

However, if you do not have a copy of the abstract all is not lost as you may not have been given the abstract to hold. One trick for locating your abstract is to review the documents from the closing. The lender likely had a title insurance policy (and maybe you had an owner’s policy) and some documents (HUD-1 or Statement of Sale) may have the title company’s name on it. It is a good bet that they would have the abstract. Also, if you had an attorney then your attorney may have a copy of the abstract as well. A copy of the survey is also helpful and can save time and money because if there were no significant changes to the property then all you may need is for the survey to be re-certified rather than completely reconstructed. This can also save a few hundred dollars and help you realize the full value of your home at sale time.

Christopher Stringham

Phone: 315-471-1664

Subpoenas – What are they and what are my rights? : Gary Valerino

Posted by: MCV Law blogger In: General 31 Jan 2014 Comments: 0

Many people have heard of subpoenas before, but few know their legal effect. A subpoena is a legal document that orders a person to comply with certain requests. Subpoenas can be either judicial, issued by a judge, or non-judicial, a subpoena not issued by a judge, clerk, or officer of the court. Generally, there are two types of subpoenas: a subpoena for a person and a subpoena for a document, which is formally known as a subpoena duces tecum. A subpoena for a person requires the attendance of that person to give testimony, whereas a subpoena duces tecum requires the production of books, papers, and other things.

Now that you know what a subpoena is, you must know your legal rights when dealing with a subpoena. The first thing you may be wondering is: if I receive a subpoena must I comply with it? The short answer is yes. A party in an action, through the use of a subpoena, may compel the opposing party or a non-party to the action to comply with its requests. If a person fails to comply with a judicial subpoena, that person may be held in contempt of court based solely on their failure to comply. Whereas, if a person fails to comply with a non-judicial subpoena, that person cannot be held in contempt until the court issues an Order to compel compliance.

Now that you know you must comply with a subpoena, you may be wondering if you are entitled to a fee for your time. When dealing with a subpoena for persons, any person whose attendance is compelled is entitled to fifteen dollars a day in fees. Each person may also receive travel expenses of twenty-three cents per mile, if traveling outside of the city in which that person was served. Furthermore, if you are not a party in the action, and are required to attend the trial, you are entitled to an additional three dollars in fees each day. When dealing with a subpoena duces tecum the party issuing the subpoena is required to defray the costs of document production if the person subpoenaed is a non-party in the action.

Although the fees paid to a layperson are relatively low, an expert in a specific field is entitled to negotiate for his/her compensation. In New York, an expert witness cannot be compelled to give testimony, but may contract to do so for fair compensation.

Since subpoenas can sometimes be complicated, if you ever receive a subpoena it is in your best interest to contact a local attorney who can offer you their assistance.

Gary Valerino

Partner

Phone: 315-471-1664

Gary Valerino has been practicing law since 1989 and has been with Meggesto, Crossett & Valerino, LLP his entire career. He is a member of the Association of Trial Lawyers of America (ATLA) and the National Association of Subrogation Professionals (NASP). He is also an approved subrogation counsel for many of the major insurance companies.

What to do if your minor child received a speeding ticket and pleaded guilty without your knowledge : Gary Valerino

Posted by: MCV Law blogger In: Traffic 16 Jan 2014 Comments: 0

Question: My teenage daughter just got her license two months ago, received a speeding ticket and did not want her parents to know so she went to court and plead guilty to the ticket. I subsequently found out about it. Is there anything I can do at this time to help her and myself, since she is covered under my auto insurance?

Answer: There are a number of issues involved in this but the short answer is yes, there is something you can do. Your daughter receiving and pleading guilty to a speeding ticket is a conviction. If she has only had her driver’s license for a few months in all likelihood the conviction is during the probationary period as set forth by the New York State Department of Motor Vehicles. This could result in a suspension or revocation of her driver’s license depending on the severity of the speeding ticket.

If you have not already added her to your auto policy as an extra driver within your household then you should do so. Doing so will increase your insurance rates as it is an increased risk to the insurance company. In all likelihood if the insurance company becomes aware of the conviction for the speeding ticket your rates may even go up higher.

While we all want to teach our children a lesson and let them suffer fair and reasonable punishment for their mistakes, in cases such as this it is not in your or your daughters best interests to allow a speeding conviction to stay on her driver’s license. Therefore, a motion should be made as soon as is possible to vacate her conviction. This type of motion is commonly known as a Coram Nobis Motion.

The Coram Nobis Motion is made through the court where the guilty plea and conviction was entered. In sum and substance, the Coram Nobis asks the Judge to vacate the conviction based upon your daughter, the defendant, being unrepresented by an attorney and being ignorant and not knowing the ramifications of her guilty plea to the charge. This motion should be made as soon as is possible as the more time that passes the more difficult it is to have the Judge grant the motion and the impact of the conviction with regard to fines, penalties, surcharges, increased auto insurance rates, etc. to take effect.

If the motion to vacate the conviction is successful then this does not conclude the final disposition of the case. The conviction being vacated simply places the defendant in the same position as she was prior to her entry of the guilty plea. However, this gives the opportunity to negotiate a plea disposition for a dismissal or a lesser charge, which would not have the same penalties and ramifications with regard to her driver’s license. For example: if the speeding ticket was reduced to a charge which was a no-point non-moving violation then it would not have the same penalties and ramifications with regard to your daughters driver’s license, court fines, points on her license, and potential increase in insurance rates.

The best advice is that if anyone you know receives a ticket for a moving or point violation that it is recommended that they retain the assistance of an attorney to obtain a reduction of the charge. The end result is that the cost for the attorney will probably be less than the overall cost and expenses, which may result from a conviction of the original charge, when taken into consideration all fines, penalties, surcharges, and increase in insurance rates over the course of time.

Gary Valerino
Partner

Phone: 315-471-1664

What will happen if I drive a car without liability insurance and I am in a car accident? : Heather La Dieu

Posted by: MCV Law blogger In: Traffic 08 Jan 2014 Comments: 0

We have discussed in this blog what you should do if there is going to be a lapse in your car liability insurance. However, do you know what will happen if you are in a car accident and you are driving a car without liability insurance?

If you are in a car accident while driving a car without liability insurance, your driver’s license and vehicle registration will be revoked for at least one year. If someone else is driving your uninsured vehicle and is in a car crash and is convicted of operating without insurance, your license and registration will still be revoked for at least one year.

In addition, to get your license back after revocation, you will have to pay the DMV an additional civil penalty of $750. Furthermore, there may be a high traffic court fine for driving without insurance or allowing someone else to drive your uninsured vehicle.

Of course, the other major concern is that you may be personally liable for any damages that occurred if your vehicle is in an accident and there is no insurance. In addition, you will not have an insurance company to retain a lawyer to represent you in any lawsuits that are filed against you for any personal injuries and property damages that occurred. Certainly, if this occurs, it is highly recommended that you retain your own lawyer to represent your interests.

Therefore, it is very important that you keep your liability insurance up to date.

Heather La Dieu

Phone: 315-471-1664

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

What should I do if there is going to be a lapse in my car liability insurance? : Heather La Dieu

Posted by: MCV Law blogger In: Traffic 12 Dec 2013 Comments: 0

You should surrender your vehicle plates to the Department of Motor Vehicles (DMV) immediately. If you do not turn in your plates, your registration will be suspended for the same number of days that you did not have insurance coverage and failed to give your plates to the DMV. If the number of days is more than 90 days, your driver’s license will also be suspended for the same number of days as the registration. In addition, to reinstate your driver’s license, you must pay a termination fee. Please note that even if your vehicle is taken off the road and not driven, you must still surrender your plates, or face registration and license suspensions.

Your insurance company will notify the DMV if you cancel your liability insurance. If you receive a letter from the DMV that states your insurance has lapsed, it is important that you follow the instructions in the letter promptly. Contact your insurance company as soon as possible. If you are having an issue with your insurance company, it is important that you turn in your plates while the issue is worked out. It is important that you keep the receipt showing that you turned in your plates. When the problem is corrected you can get your registration back and new plates. If you get insurance through a new company, make sure the new company notifies the DMV electronically.

You may also have the option of paying a civil penalty instead of turning in your license plates to the DMV. However, if you insurance coverage lapse is more than 90 days or if you have used the civil penalty option for registration suspension within the previous 36 months, then the civil penalty is not available. Therefore, if you surrender your vehicle plates to the DMV before your insurance lapses, you can prevent the suspension of your registration and driver’s license.

Heather La Dieu

Phone: 315-471-1664

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

MCV Law Supports Charity for Children : William W. Crossett

Posted by: MCV Law blogger In: Community 14 Nov 2013 Comments: 0

This past Monday, November 11^th 2013, was Veteran’s Day. Not only did our firm salute our clients, co-workers, family and friends who have served our Nation, we also used the evening to attend the annual Charity for Children Event, “Evening of Cuisine”.

The Charity for Children is a local charity that helps families of children with serious illnesses. Charity for Children often helps with those indirect expenses that so many families struggle with. Additionally, the First Duds Program provides needy newborns with a set of new clothing.

Meggesto, Crossett & Valerino, LLP, is pleased to have supported the Efforts of the Charity for Children Organization for the last 9 years. Indeed, we are often referred by the Charity as their partner, and serve as the Premiere Sponsor of the evening. In my capacity as the spokesperson for the Premiere Sponsor, I made the following remarks to those gathered for the event.

Good evening, I am William Crossett. On behalf of the Charity for Children and the Law Firm of Meggesto, Crossett & Valerino, LLP, I welcome you to tonight’s event. I trust you have enjoyed the food, the shopping, and the chance to help those whose needs often fall thru the cracks.

We all know that, at the toughest of times, it is the littlest things that get us through. That is how we at MCV Law think of the Charity for Children: As a provider of the little things.

None of us can cure disease, and none of us alone can afford to pay a family’s living expenses while treatment is being had far from home, but each of us can, and often do, lend a helping hand to a person or family when we know there is a need to fill. Even today, in the sometimes too-connected world, the needs of the less fortunate often escape our notice. The Charity for Children works to connect those in need to those willing to help; the Charity lets us make those connections, helping to multiply our efforts in ways we could not dream of.

Nina, and those who work with her, take our modest donations, bundle them up, and make someone’s day brighter. Whether it is transportation money, living expenses, or simply a new set of baby clothes, someone’s day is made better – often in ways that anyone one of us would struggle to do on our own, without the help of groups like Charity for Children.

The recipients, as grateful as they are, cannot hope to thank all those who make the gifts possible. Tonight, I take the liberty of speaking on behalf of the recipients. I want to thank each and every one of you who take Nina’s calls; I want to thank each and every board member who spends hours planning events over pizza and wings in our conference room. These are the things that make the Charity’s work possible. Most importantly, on behalf of those who have benefited from the Charity’s works, I thank each and every one of you for your contributions – direct and indirect – and pray that you will continue your good deeds as long as there are children in need of your consideration and kindness.

William W. Crossett, IV
Partner

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

How Worker’s Compensation Affects My Social Security Disability Benefits – by Kimberly Slimbaugh

Posted by: MCV Law blogger In: Social Security 08 Nov 2013 Comments: 0

If you are receiving Worker’s Compensation benefits and file for Social Security disability benefits, you may not be able to collect the maximum amount of Social Security benefits. Between Worker’s Compensation and Social Security Disability, you may only receive up to 80% of your average current earnings (ACE) in total. If the total of your Worker’s Compensation and Social Security Disability benefits exceed 80% of your average current earnings, your Social Security Disability benefit will be offset or reduced.

Take this example:

First figure out your average current earnings:

Your average current earnings is calculated either by averaging your highest consecutive 5 years of earnings or by taking the highest year of earnings in the last 5 years prior to your disability.

If your highest year of earnings in the five years before you became disabled was $40,000, then divide this number by 12 to get your monthly earnings of $3333.33.

Then multiply this number by 80 % (3333.33 X .80) to arrive at your average current earnings of $2666.66.

How much is your monthly Workers Compensation benefit?

Take the amount of your weekly Workers Compensation benefit and multiply by 52, then divide this number by 12, to get your monthly workers compensation benefit.

For example: Say you receive $400 per week in worker’s compensation.

Multiply this number by 52 ($400 X52) to get your yearly benefit of $20,800

Now divide this number by 12 to get your monthly Compensation benefit or $1733.33.

Now subtract your monthly compensation benefit from your ACE: $2666.66-$1733.33= $933.33. This number ($933.33) represents the highest amount of Social Security Disability benefits you could receive (using this example).

Remember that every case is different. It is very important to report all changes, in writing, in your Worker’s Compensation benefits to Social Security. It is also important to keep proof that you submitted the information to Social Security. You will also need to follow-up with Social Security to make sure they adjust your benefits as needed.

Kimberly Slimbaugh
Partner

Phone: 315-471-1664

State of New York Commission on Quality Care and Advocacy for Persons with Disabilities, Surrogate Decision-Making Committee Panel.

The Patient Protection and Affordable Care Act (ACA) – by William W. Crossett

Posted by: MCV Law blogger In: Workers Compensation 01 Nov 2013 Comments: 0

With enrollment now open, I have been asked why the New York State site https://nystateofhealth.ny.gov/ requests information about Workers’ Compensation claims.

While the ACA is new law, the principle that Workers’ Compensation is the primary payer is not.

What this means is that the compensation carrier has the responsibility for paying medical related to your Workers’ Compensation case. Thus, no other payer, including your private insurance, is required to pay those costs.

It is my opinion that this principle will continue to control, despite the thought that compensation claims will be treated as “preexisting” conditions. Now, it is unknown what will happen if the compensation carrier is relieved of liability for medical treatment. I suspect, however, that it will depend on how the compensation case is ultimately resolved.

Presently, when both the Medical and Indemnity (lost wages) portions of a compensation case are settled under Section 32 of the Workers’ Compensation Law, provisions are made to allocate a portion of the overall settlement as money for future medical care. In cases where the Injured Worker is receiving Medicare, approval of a Medicare Set Aside (MSA) is typically obtained. The idea is that the Injured Worker uses the MSA to pay for future medical cost. If the MSA sum is exhausted, Medicare then steps in and pays pursuant to Medicare’s rules. I believe that, as time marches forward, a similar situation will take hold under the ACA.

It is also my opinion that the question relating to Workers’ Compensation coverage under the ACA may relate to more than one issue. That is, if you already have a source of payment for a particular injury, the carrier under the ACA will not have to pay for that condition, thereby eliminating the premium for such coverage. However, if the Workers’ Compensation case was resolved in some other manner, it is likely the premium will be calculated depending on the resolution. I suspect that there may be other actuarial reasons as well.

William W. Crossett IV
Partner

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

What documents should I keep after buying my home? – by Christopher Stringham

Posted by: MCV Law blogger In: Real Estate 24 Oct 2013 Comments: 0

Thinking of buying your first home? Just finished buying your first home? Well, there is a huge difference between the two.

In the first instance the person/people are full of hope, excitement, and a whole host of other, mainly positive feelings. The second group, those who have just finished with the process of purchasing their first, second, or third home, may be feeling a bit different. Probably tired, frustrated, and a bit relieved. Certainly, if the second group hired an attorney, they may be a bit less tired and frustrated, and a bit more relieved. One of the last things on most people’s minds after the sometimes lengthy process is what documents are important enough to keep in a safe place for a long time.

Anyone that has purchased a home before knows that there is a lot of paperwork involved. If you are getting a mortgage through a lender, then the paperwork can be overwhelming from the start to the finish. It can seem like eons before the closing takes place, and that is if everything goes smoothly. If a bank is involved, the closing will involve a stack of papers to sign.

At every closing that I have been to where a mortgage is involved, the bank attorney gives the home buyers a package that contains an original copy of important papers. This package will include a copy of 2 very important documents, the Note and the Mortgage. The Note is the homebuyers’ promise to pay the loan back to the lender, and the Mortgage is the lender’s security interest in the property if the home owner fails to pay the loan back.

There are some other important documents that home buyers should be aware of as well. These include copies of the deed, survey, statement of sale, HUD-1, and the abstract of title. The survey and abstract are important to hold on to and should be able to be located in the future in the event that the home is sold. By being able to locate these documents at the time the home is being sold, people selling their home can save themselves hundreds of dollars by avoiding the need for a new survey or creating a new abstract.

Christopher Stringham

Phone: 315-471-1664

Did You Know You May Text In Your Car While at a Red Light? – by Heather La Dieu

Posted by: MCV Law blogger In: Traffic 11 Oct 2013 Comments: 0

I am sure no one has missed the new signs on the highway flashing that you may not text and drive or risk high fines and 5 points on your license. And certainly, there is good reason for the law. However, did you know that as long as your car is not in motion, it is not against the law to text? Specifically, paragraph 1 of Section 1225-d of the Vehicle & Traffic Law states that no person shall operate a motor vehicle while using any portable or electronic device while such vehicle is in motion.

The same is true of making a call. Section 1225-c of the Vehicle & Traffic Law prohibits operators of a motor vehicle to use a mobile telephone unless it is hands free. However, the law only requires operators of a motor vehicle to have a hands free device while such vehicle is in motion.

It should be noted that there are new regulations coming out at the end of October that operators of commercial vehicles may not make a call without a hands free device or text irrespective of whether the vehicle is in motion.

Therefore, as long as you are not operating a commercial vehicle, you are not breaking the law if you are stopped at a red light and send a text or make a quick call.

Heather LaDieu

Phone: 315-471-1664

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

Thoughts on independent doctor exams – by William W. Crossett

Posted by: MCV Law blogger In: Workers Compensation 23 Sep 2013 Comments: 0

I am often asked my thoughts on independent medical exams. I question how any doctor can be considered “independent,” so it is necessary to discern what independent means.

Independence is most often defined as being free from outside control and, in the economic sense, self-supporting. However, assuring that one is free from outside control is always difficult, as independent doctors are asked to render an opinion based on a standard formulated by someone else and paid for by someone else.

In New York, the insurance carrier’s doctor is labeled as an Independent Medical Examiner (IME), but, unfortunately, they are far from independent. Indeed, independent doctors are employed primarily for the purpose of conducting exams at the direction of insurance carriers/employers. Many of the doctors working as independent medical examiners have a very limited private practice or are semi-retired but perform occasional independent exams. Others have set up a practice that derives a significant income from doing “Industrial” exams, as well as IME’s. Accordingly, independent doctors certainly bring a bias to the exam to perpetuate a stream of revenue.

In the past, but on rare occasions, the Workers’ Compensation Board (“WCB”) has directed that an “Impartial Specialist” examine the claimant, instead of an independent doctor.

In my experience, the WCB has had difficulty finding a physician to fill the role, especially in Central New York where I practice, as we simply do not have many specialty doctors.

In May of this year, the WCB sought applications for Impartial Specialists, but has not yet announced the results of this search. The semantics of Independent versus Impartial make me chuckle, because the carrier still pays for the exam, and at a higher rate for an impartial exam than for an independent exam. Moreover, the impartial doctor is still bound by the standard set by the WCB.

To conclude, I doubt that a truly Independent or Impartial exam exists. It is my opinion that the system is better served if each party’s doctor were required to defend their position.

William W. Crossett IV
Partner

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

Reduced Retirement Benefits and Social Security Disability – by Kimberly Slimbaugh

Posted by: MCV Law blogger In: Social Security 12 Sep 2013 Comments: 0

Recently I spoke with an individual who had opted to take their reduced old age benefit upon turning 62. Subsequently, this person developed a debilitating condition that prevented them from working. The question was can the individual now apply for SSDI benefits even though they were receiving their reduced retirement benefit. Yes, you can, provided you apply up to six months prior to your full retirement age. For individuals born 1943-1954, the full retirement age is 66.

The downside in this scenario is that if the individual is found disabled after he took his early retirement, his disability benefits are reduced by the number of months that he received the reduced retirement benefits. This reduction remains in effect even upon reaching full retirement age.

Likewise, if you are younger than 62, and have an application pending for SSDI, you may, at age 62, take your early retirement benefit while your claim is pending. If SSA finds you disabled before you took early retirement, you will get your full retirement amount as your disability benefit. For the months you collected your reduced retirement benefits, you will get the difference between your disability benefit and the reduced retirement benefit. Thereafter, you will receive your disability benefit.

If SSA finds you disabled after you started receiving your reduced retirement benefit, your disability benefit will be reduced by what SSA calls the reduction factor, which means you would collect less than your full retirement benefit.

If SSA finds you are not disabled, you will continue to collect your reduced retirement benefit even after reaching your full retirement age.

The decision to take early retirement has dramatic financial implications and you should consult with a financial planner to review your particular circumstances.

Kimberly Slimbaugh
Partner

Phone: 315-471-1664

State of New York Commission on Quality Care and Advocacy for Persons with Disabilities, Surrogate Decision-Making Committee Panel.

Did you know that you are not allowed to file a personal injury claim against a City or a School District unless you first serve a notice of claim? by Heather La Dieu

Posted by: MCV Law blogger In: Personal Injury 04 Sep 2013 Comments: 0

Before you can file a personal injury claim against a public corporation, you must first serve a notice of claim. A public corporation includes, among other entities, a City, County, Town, Village, Fire District, and School District. A notice of claim must ordinarily be served within 90 days after the claim arises. The claim arises on the date the accident occurs. Of course, there are exceptions to this general rule. For example, a notice of claim in a wrongful death action must be served within 90 days of the date of the appointment of a representative of the decedent’s estate.

The purpose of the notice of claim is to enable the public corporation to investigate and gather evidence while the claim is still fresh. The notice of claim must be in writing, sworn to by or on behalf of the claimant, and must set forth: (1) the name and post-office address of each claimant, and of his or her attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable.

A notice of claim must be served personally or by registered/certified mail on an individual that is designated by law to accept service. For example, if the notice claim is against a School District, one of the proper individuals that may accept service is a school officer. A school officer is defined in the Education Law Section 2.13.

If a notice of claim is not served within 90 days from the date the claim arises, it is possible to make an application to the court for leave to file a late notice of claim. However, this application must be made within 1 year and 90 days from the date of the incident and there is no guarantee that the court will grant your application.

As you can see, the rules are extremely complicated and it is strongly recommended that you consult an attorney. Furthermore, since there are so many exceptions and pitfalls, this blog should not be solely relied upon to serve a notice of claim against a public corporation.

Heather LaDieu

Phone: 315-471-1664

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

Considering a Section 32 Settlement? by William W. Crossett

Posted by: MCV Law blogger In: Workers Compensation 04 Sep 2013 Comments: 0

The biggest decision you will have to make in your case is whether or not to accept a section 32 settlement, which usually means a one-time lump-sum payment, as opposed to ongoing weekly payments. Typically, a Section 32 agreement will end both the carrier’s obligation to make lost wage payments and end their responsibility for medical coverage; although sometimes the Section 32 agreement is limited to lost wages, leaving the medical portion of your claim open.

When considering accepting a one-time payment, instead of ongoing payments, you must weigh many factors, including how long your lost wage benefits are likely to continue, and the cost of your likely future medical needs, including prescriptions.

In March of 2007, the law was changed by placing limits or caps on how long lost wage benefits are paid. The duration of the payments is determined by your Loss of Wage Earning Capacity (LWEC), in combination with either (a) your reduced earnings (if you are working) or (b) your level of impairment (if you are not working). The LWEC determination is either reached by agreement or found by the presiding Judge.

If you are on Social Security Disability Income (SSDI) at the time of settlement, that will carry some weight regarding your degree of impairment. However, collecting SSDI is not equivalent to a finding of a 100% LWEC for purposes of New York Worker’s Compensation.

As federal law prohibits a transfer of your medical care from the Workers Compensation carrier to the federal Medicare system, a monetary provision for your medical needs must be made in the Section 32 settlement if your medical is concluded. This is referred to as a Medicare Set Aside (MSA). The MSA is a sum of money that you are required to hold/use for your future medical care and treatment. The idea is that if you exhaust the MSA monies, Medicare will then pick up the cost of care, subject to its rules.

The entire settlement process can be very complicated because it requires both good faith projections as to your future lost wage benefits and medical care, as well as serious negotiations with the carrier, who may or may not be interested in a section 32 agreement. Typically, Section 32 settlements involve non-schedulable cases such as Back and Neck injuries. However, Schedulable cases such as Hand(s) and Knee(s) injuries may also be the subject of Section 32 Agreements.

Because of the complicated nature of a Section 32 agreement, your interests are best served by working with a local attorney who has experience with the process, and who can offer advice and strategy that works best with your particular situation and goals.

William W. Crossett IV
Partner

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

SUM Coverage; The best auto insurance coverage you’ve never heard of : Gary Valerino

Posted by: MCV Law blogger In: Traffic 27 Aug 2013 Comments: 0

There are probably more advertisements for auto insurance on television than there are for most any other product. This is probably because the majority of adults in the United States both own and operate automobiles. While those advertisements usually concentrate on price, very few of them concentrate on coverage.

It is common knowledge that insurance on an automobile is a legal requirement, and that the most common type of insurance is liability insurance, which will protect the owner or operator in case they are held liable for accidental damages or injuries arising out of the use or operation of a motor vehicle. However, there is another available coverage under your insurance policy, which protects you and any other insured parties (as defined in the insurance policy) for injuries sustained as a result of an auto accident that is due to the fault of another.

The coverage that I am referring to is supplementary uninsured/underinsured motorist coverage, commonly known as SUM coverage. SUM coverage is a bodily injury protection that covers you if you are injured as a result of an accident involving an uninsured or underinsured vehicle or one involving a hit and run driver. This coverage also protects you if there is an accident with a car that carries a bodily injury liability insurance limit that is less than the SUM insurance limits that you have on your own car.

In general, SUM coverage protects you, family members who live with you, and someone in a car you are operating. Under the SUM coverage, you may make a claim against your own insurance policy for bodily injury that is legally due to the negligence of either an uninsured or an underinsured driver. The maximum benefit paid will be the limits of the SUM coverage you have purchased. If the negligent party has insurance, then said limits shall be reduced by the amount of the insurance of the negligent party.

The mandatory uninsured motorist coverage under your insurance policy will provide coverage as a result of an accident involving an uninsured vehicle or hit and run driver. However, this coverage only applies to bodily injury resulting from accidents occurring in New York State. The SUM coverage also covers accidents occurring outside of New York, and would provide coverage to make a claim against your own insurance company for the negligence of another motorist with an uninsured or underinsured vehicle.

SUM coverage may be purchased through your auto insurance carrier. However, as a general rule, the SUM coverage limit you choose cannot be higher than your bodily injury liability limit. Based upon the cost of auto insurance, it is not uncommon for the youngest drivers, as well as drivers with a poor driving history, to have the lowest available insurance coverage, as an increase in coverage would result in an increase in the policy premium to be paid.

In summary, it is important that you protect yourself and your family in case of an auto accident by purchasing an appropriate amount of SUM coverage through your insurance agent or insurance carrier.

To learn more about New York auto insurance coverage and laws or to schedule a consultation, please contact MCV Law LLP today.

Gary Valerino
Partner

Phone: 315-471-1664

3 Years with the Medical Treatment Guidelines: Has it Gotten Any Better? by Christopher Stringham

Posted by: MCV Law blogger In: Workers Compensation 14 Aug 2013 Comments: 0

Commentary by Christopher Stringham, Esq.

On December 1, 2010, the NYS Workers’ Compensation Board instituted Medical Treatment Guidelines for the neck, back, shoulders, and knees. The intent of the treatment guidelines was to have all parties (doctors, attorneys, insurance carriers, and injured workers, etc.) be on the same page when it came to treatment parameters, and to make the treatment authorization process both streamlined and more efficient.

Initially, as all the interested parties became familiar with the treatment guidelines and all of the required forms, a large number of disputes arose as the guidelines only seemed to address new, acute injuries, along with the necessary immediate treatment rendered to one of the covered body sites. There was no way to address ongoing and palliative care for injured workers who required pain management, either from ongoing therapies (i.e. chiropractic, physical therapy, acupuncture, etc.) or from the prolonged use of medications.

The practical effect of the guidelines was that injured workers who had been dependent on this palliative care had their medical treatment cut off due to the new requirements that placed the burden of proof on doctors to show that the ongoing treatment was effectively making their patient “better” and not just alleviating pain. This same set of circumstances arises with newly injured workers who exhaust the care that is prescribed by the guidelines, but who still require some treatment to address ongoing, or even permanent, pain issues.

In order to request the review of a treatment denial, injured workers must ask for review by a Law Judge. This is done by checking the appropriate box on the form MG-2, the same form that the treating doctor used to make the variance request. (The form can be found here)

As of today, the Medical Treatment Guidelines that became mandatory in late 2010 are still in effect and are still being utilized to bring an end to ongoing treatment. However, the Workers’ Compensation Board has recently (March 2013) revised the guidelines so that an ongoing maintenance care program (10 Chiropractic/Physical Therapy treatments per year) will be authorized for those injured workers who have both reached maximum medical improvement and been classified with a permanent disability. The Board is also working to institute chronic pain guidelines.

The Medical Treatment Guidelines were not a positive addition to the Workers’ Compensation system from the perspective of the injured worker. They have been used as the basis to deny an untold number of treatment requests from treating physicians and made it much more difficult for injured workers with serious injuries and the desperate need for chronic pain management to get the treatment that they require. However, I am hopeful that the Board’s review of the last three years and its intent to institute chronic care guidelines will lead to a rebalancing of the way in which treatment is rendered to injured workers in the future.

Christopher Stringham

http://www.wcb.ny.gov/content/main/SubjectNos/sn150_18_1.jsp

Phone: 315-471-1664

Christopher Stringham graduated from Western New England College School of Law in 2010 and was admitted to the New York State Bar as well as the United States District Court, Northern District of New York in 2011. He is a member of the New York State Bar Association, Onondaga County Bar Association, and the Injured Workers’ Bar Association of New York. He has been a member of Meggesto, Crossett & Valerino, LLP since October 2010.

New York Worker’s Compensation – Medication and Transportation Reimbursement (C-257) : William W. Crossett

Posted by: MCV Law blogger In: Workers Compensation 01 Aug 2013 Comments: 0

For Meggesto, Crossett, and Valerino claimants with an existing New York State Worker’s compensation case, Compensation Law provides for the reimbursement of certain Medical and Transportation costs that are directly related to the injury of record.

Reimbursable expenses include mileage for transportation to and from Doctor’s visits, as well as out-of-pocket medical expenses for prescriptions and for durable medical equipment such as crutches and braces.

Below is the link to the mileage reimbursement rates.

Below is the link to our C-257 form generator, which is the form to be used for submitting Medical and Transportation expenses.

http://mcvlawblog.com/practice-areas/workers-compensation/medical-and-transportation-expense-c-257-form-generator/

This form is very straightforward. Be sure to fill in all the necessary information at the top of the form, including name, WCB case Number, Social Security number, and address. On the bottom half of the form, as well as on the second page, are spaces for you to fill in your expense information. If you are going to ask for reimbursement of both mileage and medical expenses, it is best to use separate forms in order to keep the mileage and the medical separated.

When calculating mileage, under “Nature of Expense” put the name and address of the Doctor you are visiting. In the second column goes the date of the visit, and in the third column goes the “round-trip” mileage to the Doctor and back to your place of residence. A trip to the pharmacy to pick up prescriptions is not a covered expense. Parking and toll expenses are, however, covered, with copies of original receipts. Do not try to “pad” the mileage with extra driving, because the examiner will already have an approximation of the miles involved, and discrepancies will slow or stop the reimbursement process. Be sure to inquire if your carrier offers any home deliveries on prescriptions – more and more carriers are offering such programs.

When applying for Medical reimbursement, under “Nature of Expense,” put the name of the prescription or the type of medical equipment that you are seeking reimbursement for, the date you made the purchase, and the amount spent out-of-pocket. Please note that the carrier will not reimburse for out-of-pocket copays for medication. The carrier will also not reimburse for any prescription or medical equipment without a copy of the original receipt.

When you have completed the form, forward it to your Compensation insurance carrier for reimbursement. There is no statutory time limit for the reimbursement process, and there is no penalty for late payment of medical and transportation expenses, but allow at least a window of 60-90 days to receive payment. If you have not heard anything in 60 days, contact the offices of Meggesto, Crossett, And Valerino, and we will be glad to contact the carrier on your behalf. It is important for all parties involved that you keep a copy of your submission, in the event that payment is incorrect or delayed.

Tips:

o Make sure the form is complete.

o Neatness counts – a sloppy or incomplete form will cause delay.

o Try to submit no more than 6 months’ worth of expenses at a time. If you try to submit several years at once, payment will be delayed, and there is no guarantee that the insurance carrier will be able to go back and pull all the necessary records.

o If you receive mileage and not all of it is paid, it is possible that the medical records of your visits are not yet available to the carrier. Those records must be matched with your mileage submission. No payments are made until the matching medical reports are filed.

John M. Bellinger
Paralegal

jbellinger@mcvlaw.com

Mr. Bellinger is part of the Worker’s Compensation team at Meggesto, Crossett and Valerino. This entry was written by Mr. Bellinger under the direction and approval of Attorney Crossett.

William W. Crossett IV
Partner

Phone: 315-471-1664

Debilitated by Sjögren’s Syndrome? by Kimberly Slimbaugh

Posted by: MCV Law blogger In: Social Security 25 Jul 2013 Comments: 0

Sjögren’s Syndrome is an autoimmune disease where an individual’s white blood cells attack moisture-producing glands. The disease was highlighted last year in the national sports spotlight as Venus Williams had to withdraw from the US Open after being diagnosed with the disease.

Typical symptoms of Sjögren’s include dry eyes and dry mouth, but may also affect the functioning of other organs and the central nervous system. Individuals may also suffer from fatigue and joint pain. Sjögren’s may be present in conjunction with another autoimmune disorder and may not be readily diagnosed.

While some people experience mild symptoms, others may suffer debilitating symptoms that affect their ability to function in their day-to-day lives, including an inability to work.

Individuals suffering from Sjögren’s Syndrome maybe eligible for Social Security Disability if a rheumatologist has diagnosed their condition. In addition, under Social Security Listing §14.10, if the medical evidence establishes:

A. Involvement of two or more organs/body systems, with:

One of the organs/body systems involved to at least a moderate level of severity; and
At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) or

B. Repeated manifestations of Sjögren’s syndrome, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:

Limitation of activities of daily living.
Limitation in maintaining social functioning.
Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.

If you are suffering from Sjögren’s Syndrome or other autoimmune disorder that seriously impacts your ability to work, you should contact an attorney to discuss whether you might be eligible for Social Security Disability.

Kimberly Slimbaugh
Partner

Phone: 315-471-1664

State of New York Commission on Quality Care and Advocacy for Persons with Disabilities, Surrogate Decision-Making Committee Panel.

I am still disabled. Why do I have to look for work? by William W. Crossett

Posted by: MCV Law blogger In: Workers Compensation 17 Jul 2013 Comments: 0

Many injured workers find themselves in the dilemma of being unable to return to their prior work, but without medical evidence to support the proposition that they have a temporary or permanent total disability. In this instance, the New York State Worker’s Compensation Law requires that the injured worker/claimant demonstrate that they are attached to the workforce.

Failure to demonstrate an attachment to the workforce may result in a temporary or permanent suspension of lost wage benefits.

Sometimes, this argument is made by asserting that the claimant has voluntarily removed themselves from the workforce because the claimant has not taken steps to seek work within their abilities. A finding that the injured worker is entitled to Social Security Disability is not a protection from this defense.

Most times attachment to the labor market is raised when the injured worker has been at a partial level of disability for an extended period of time or there’s been a finding a permanent partial disability. Nevertheless, whenever the injured worker is at a partial level of disability it is best to take steps to demonstrate attachment to the workforce, before the issue is raised by the carrier or the employer

There are three simple things that can be done to demonstrate attachment to the workforce:

Demonstrate you are working with ACCES- VR.
Register with New York State One-Stop centers.
Conduct independent job search and record the information Board form C-258.

ACCES VR stands for adult career and continuing education services – vocational rehabilitation. ACCES-VR offers a full range of employment services for persons with disabilities. Generally, the process is commenced by an orientation session and then an application and evaluation. We encourage all participants of ACCES-VR to document their involvement and to obtain written confirmation of what can and cannot be offered by ACCES-VR. For more information visit http://www.acces.nysed.gov/vr/

New York State Department of Labor operates career centers across the state of New York, often referred to as “one-stop”. The centers assist both disabled and unemployed citizens in finding appropriate work. Again, we recommend that all participants document their efforts with the One-Stop Center and to continue involvement until the case has been resolved. For detailed information click on this link http://www.labor.ny.gov/careerservices/special-services.shtm.

Lastly an injured worker with a temporary or permanent partial disability should maintain an ongoing job search. The search should include both part and full time employment consistent with the claimant’s documented restrictions and/or limitations. We recommend that the efforts be documented on the New York State Worker’s Compensation Board form C-258, to be downloaded at this link http://www.wcb.ny.gov/content/main/forms/c258.pdf . It is our recommendation that independent job search be done in conjunction with participation in ACCES-VR and the New York State Dept. of Labor’s One-Stop centers.

William W. Crossett IV
Partner

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse

Can I get Social Security Disability if I have Fibromyalgia? – by Kimberly Slimbaugh

Posted by: MCV Law blogger In: Social Security 11 Jul 2013 Comments: 0

Social Security disability cases based on fibromyalgia alone are generally difficult to win, and are always easier to win if other impairments are involved. Regardless of whether you are applying for disability based solely on fibromyalgia or alleges several impairments, in a case involving fibromyalgia, you must have the diagnosis in your records. It is always better that this diagnosis is made by a Rheumatologist. If your primary care physician or mental health provider diagnoses you with fibromyalgia, try to get referred to a Rheumatologist for confirmation of the diagnosis, as the specialists’ opinion will carry more weight.

Social Security doesn’t have a disability listing for the condition known as fibromyalgia (Social Security’s disability listings provide the approval criteria for a number of different impairments, ranging from amputations to seizure disorder), but the Social Security Administration (SSA) recently published a ruling giving guidance to disability claims examiners and administrative law judges (ALJs) on how to assess fibromyalgia cases. Even with this new guidance for evaluating Fibromyalgia, many claimants will continue to be denied benefits. If you are denied benefits, you shouldn’t give up, but should pursue your disability claim through the appeals process.

Why is proving disability due to Fibromyalgia so difficult? Social Security evaluates your claim using a 5 step sequential evaluation. In the first step, you must show you have a medically determinable impairment that has prevented or will prevent you from working for at least 12 months. A medically determinable impairment cannot be established on the basis of symptoms alone. Traditionally, a claim for fibromyalgia alone was given little weight due to the subjective nature of the condition, meaning there were no definitive diagnostic tests to confirm the diagnosis, and thus denials were based upon an individual not proving they had a medically determinable impairment. This is why it is important to have a specialist diagnose your condition.

To address this issue, Social Security issued Ruling SSR 12-2p, effective in July 2012, explains when fibromyalgia should be found as a medically determinable impairment (MDI). The ruling directs claims examiners and judges to rely on criteria issued by the American College of Rheumatology (ACR), to determine whether an individual has fibromyalgia, and thus, have a medically determinable impairment. There are two alternatives in ACR criteria that can be used in determining whether you have fibromyalgia; either one will suffice.

The ACR requires the following for a diagnosis of fibromyalgia:

Evidence of chronic widespread pain, including pain in the back, neck, or chest
Evidence that shows your doctor ruled out other diseases that could cause the same symptoms (the symptoms of fibromyalgia often overlap with those of lupus, hypothyroidism, and multiple sclerosis), such as lab tests and examination notes, and

One of the following:

Tender point sites in at least 11 of 18 tender point areas of the body, with tender points occurring on both sides of the body and both above and below the waist. A list of the tender points can be viewed in the SSA’s recent ruling on fibromyalgia. In testing tender points, your doctor should apply the approximate amount of pressure needed to blanch his or her own thumbnail. Or,
Repeated manifestations of six or more fibromyalgia symptoms, signs, or conditions that often occur with FM, particularly fatigue, non-restorative sleep, cognitive or memory problems (“fibro fog”), depression, anxiety, or irritable bowel syndrome (IBS). Other possible symptoms include headache, muscle weakness, abdominal pain, Raynaud’s Phenomenon, seizures, and dizziness.

How does SSA consider subjective complaints to be taken as “medical signs” in the case of fibromyalgia? When a symptom is an abnormality that can be documented by clinical diagnostic techniques that have been accepted by the medical profession, such as found in the definition established by the ACR, the SSA allows this as sufficient evidence. It will be important for your doctor to provide how your impairment affects your ability to function, the treatments that you have received and the effect on your symptoms.

Once you have established you have a medically determinable impairment, your claim will the proceed to be evaluated through the remaining steps of the sequential evaluation.

Whether you are suffering from fibromyalgia or other illnesses or injuries that prevent you from working, you should contact an attorney familiar with Social Security claims to discuss your particular circumstances.

Kimberly Slimbaugh
Partner

Phone: 315-471-1664

State of New York Commission on Quality Care and Advocacy for Persons with Disabilities, Surrogate Decision-Making Committee Panel.

Do I need my own Title Insurance policy? – by Christopher Stringham

Posted by: MCV Law blogger In: Real Estate 03 Jul 2013 Comments: 0

So you’ve just finished putting your John Hancock on a pile of documents about five inches thick after what seemed like an eternity from when you first set eyes on the house of your dreams. It is also likely that the Truth in Lending Statement that the bank is required to produce so you can see how much that “dream house” is actually going to cost over 30 years, is burned into your memory.

At this point your attorney may lean over and ask if you are interested in purchasing a title insurance policy for your home and shows you yet another document with a lot of big words in tiny font, and of course a place for your signature as well as another opportunity for you to write a check. You may think to yourself, “wait, didn’t I see a statement in that pile of papers that showed a title policy that I paid for?” The answer is yes you did, however, that is your lender’s title policy. Before we get ahead of ourselves, let’s first answer the burning question of what exactly is a “title insurance policy.”

A title insurance policy in a residential real estate transaction is a type of indemnity insurance that insures against defects in title for real property that may arise in the future, or to state another way, an insurance policy that will protect against any future claims by parties that they have an interest in your property. The policy will defend against lawsuits from persons or entities that claim to have a right to the property and will reimburse the insured for any actual monetary loss incurred.

It is a 100% certainty that if you needed a loan to purchase your new home and that loan came from a bank, the bank required a title insurance policy and it was added to your closing costs. So why would you then need to purchase another title insurance policy?

The policy that was purchased was the lender’s title policy and protects the bank’s interest in the property. Your attorney is asking if you would like to purchase an owner’s policy that protects your interest. Chances are at this time your financial interest in the property is fairly small as most home buyers only put a fraction of the purchase price down. However, as time goes on and your equity in the house grows, your financial stake in the property increases. An owner’s title insurance policy would protect this interest.

So, is it a good idea to whip that checkbook out and write yet another check in the pursuit of home ownership? The answer is that it depends on the circumstances. Almost all title issues are cleared up prior to the closing or else the bank would not release the funding and the title company would not insure the property. However, it is important to remember that a title insurance policy will insure against many hidden defects that even the most thorough title review would not reveal (i.e. deeds executed by minors or mentally incompetent persons, forged instruments, corporate instruments executed without the proper corporate authority and errors in the public records).

Christopher Stringham

Phone: 315-471-1664

Missing Important Deadlines after a Car Accident may Result in Loss of Medical and Wage Benefits – by Heather La Dieu

Posted by: MCV Law blogger In: Traffic 27 Jun 2013 Comments: 0

It is difficult to think about deadlines after you have been injured in a car accident, however the alternative is you could lose out on medical and wage benefits.

As you already know from reading this blog, after you have been injured in a car accident, your car insurance must pay your medical bills and lost wages, with certain limitations, through New York no-fault benefits.

However, it is important to note that most insurance companies generally require you to fill out a no-fault application within 30 days from the date of the accident or the insurance company may deny coverage. 30 days is not a lot of time when you are injured and trying to deal with all the other issues that come with being in a car accident, including property damage to your vehicle, filing a police accident report, talking to your employer about missing work and attending medical appointments.

In addition, most car insurance companies generally require that they receive any medical bills within 45 days from treatment. You must notify your doctor that they need to bill your car insurance for any treatment related to the car accident. If you have been treated with this doctor prior to the car accident, you should verify that the doctor is billing the proper insurance company. Many times a doctor’s office will have a separate billing department and they will bill the insurance company they have on file. And since billing usually takes time, by the time you realize that the doctor office has billed the wrong insurance company, the 45 days may have passed and your car insurance may deny paying the bill as untimely. This ultimately may result in you being responsible for the bill.

It is important to pay attention to deadlines after a car accident, because you could be responsible for your medical bills and lose out on lost wages.

Heather LaDieu

Phone: 315-471-1664

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

I Have Been Hurt at Work. What Do I Do First? – by William W. Crossett

Posted by: MCV Law blogger In: Workers Compensation 21 Jun 2013 Comments: 0

The short answer to this all-important question is: Report Your Injury.

The Worker’s Compensation law has a two part statute of limitations.

The law requires the injured worker give notice of the injury within 30 days of knowing or within 30 days of when he should have known that the injury was related to work.
The law provides that the claim must be filed within two years of the date of accident or disability in occupational disease claim.

Notice:

It is important to give notice of the injury or occupational disease to a person in a supervisory capacity. Giving notice to your coworker is unlikely to satisfy the requirements under the statute. Oral notice will work, but written notice is better. Many employers require written notice and actually have a rather harsh policy if notice is delayed.

Many times injured workers do not recognize the true nature or extent of the injury when the event occurs. I cannot tell you how many clients have explained to me that they knew they hurt themselves, but thought it would get better overnight or maybe over the weekend, only to find that the next day they couldn’t get out of bed. Sometimes formal notice is delayed because the supervisor is absent, sometimes because of the injured workers pride, and sometimes notice is delayed because of the worker’s fear of losing their job. All valid reasons in equity, but equity rarely carriers the day in a statutory system. If you’re hurt tell your supervisor immediately.

In cases of occupational disease the notice provision can be very confusing as the law actually provides a different analysis based upon the Date of Disability. The Date of Disability may or may not be the day that the injured worker learns of the occupational disease. Instead it may be the first day of lost time, which could be days, weeks, or even years after knowing that you have a disease or illness caused by your employment. However, it is best to give notice as soon as you know that you have an occupational disease.

Filing a Claim:

The Workers Compensation Board has many forms. While the law does not require a specific form be filed to commence a claim, it is likely that the Worker’s Compensation Board will not act until either a C-2 or a C-3 is filed.

The C-2 Form “Employers Notice of Injury” is required to be filed by the Employer. However, this form is not always filed, especially if there is no immediate lost time.
The Injured Worker may also initiate the claim by filing a C-3 “Employees Notice of Injury”. While the filing of a C-3 within two years of the date of injury will ordinarily satisfy the second prong of the Statute of Limitations, this form should be completed with care. In my opinion this form should be completed with assistance of legal counsel, as it is binding and may be used against you.
It is also likely that the Board will decline to take action unless there is medical evidence to support the proposition that an injury or illness has occurred.

Once the board has all the information they will “Index” the case. “Indexing” starts the formal clock running for the employer or insurance carrier to decide whether to accept or to controvert (deny) your Worker’s Compensation case. Sometimes, when the Board believes they do not have all the information they need, they may only “Assemble” the case, meaning that the Board has assigned a workers compensation board number (WCB#) but the clock does not start running against the employer or their insurance company. Generally speaking, if the case is “Indexed” the employer or the insurance carrier must make a decision within 25 days to accept or controvert the case.

William W. Crossett IV
Partner

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

Can I get Social Security Benefits due to Back Problems? – by Kimberly Slimbaugh

Posted by: MCV Law blogger In: Social Security 07 Jun 2013 Comments: 0

Back impairments are the most common disabling condition we see in our practice. Back pain can be caused by a number of different spinal conditions; some are the result of an injury or may happen normally with age. Chronic conditions causing back pain include degenerative disc disease, osteoarthritis; rheumatoid arthritis; spondylitis; spinal stenosis, nerve root compression, herniated discs; scoliosis, or spondylolisthesis.

To be eligible for disability benefits, Social Security requires you to have a medically determinable impairment that has lasted or will last for at least one year. This means that x-rays, MRIs, or at least your doctor’s notes after a physical examination must show that your back pain is caused by some physical abnormality of the spine or spinal canal. If you have back pain without a documented physical impairment that would normally be expected to produce pain symptoms like you experience, you’re unlikely to win disability benefits.

How Social Security Evaluates the Severity of Your Back Pain

Social Security sees many disability claims for back pain, but will approve only the most severe cases that meet one of the listed impairments. Most people suffering with back pain will not meet a listed impairment. In these cases, the individual must prove that their impairment, with the resulting functional restrictions, preclude returning to work. While Social Security will consider how you say your condition limits your ability to work, it is very important to have medical documentation to substantiate your claim.

Social Security will evaluate your ability to do exertional activities such as lifting, carrying, sitting, standing, walking, pushing and pulling

They will also evaluate your ability to do non-exertional activities such as manipulative restrictions, stooping, climbing, crouching or crawling; the ability to concentrate and focus; understanding and remembering; whether you are likely to miss work due to symptom flare-ups. Limitations in these activities may be due to side effects from medication or the result of a mental impairment such as depression or anxiety.

It is important to have medical evidence to support your impairment as well as a detailed statement from your doctor as to your limitations. You should contact an experienced disability attorney to determine if you might be eligible for benefits.

Kimberly Slimbaugh
Partner

Phone: 315-471-1664

State of New York Commission on Quality Care and Advocacy for Persons with Disabilities, Surrogate Decision-Making Committee Panel.

Am I eligible for Social Security Disability Benefits if I have PTSD? – by Kimberly Slimbaugh

Posted by: MCV Law blogger In: Social Security 22 May 2013 Comments: 0

Post-Traumatic Stress Disorder (PTSD) is an anxiety disorder triggered by experiencing or witnessing a traumatic event. Some individuals may develop the disorder after a person close to them experiences danger, is seriously injured, or dies suddenly.

Some people experience symptoms right after the event or trauma, but for others, symptoms may not appear or become a problem until much later.

Symptoms may include: repeatedly thinking about the trauma; nightmares or flashbacks; being constantly on guard; feeling anxious; feeling irritable or easily angered; an inability to concentrate; avoiding people or places that you associate with the trauma; loss of interest; keeping to yourself; panic attacks; physical symptoms; difficulty functioning in your daily life; abuse of alcohol or drugs; relationship problems and depression.

Treatment for post-traumatic stress disorder can involve counseling, cognitive-behavioral therapy, psychotherapy, antidepressant drugs, antipsychotic medications, or a combination of one or more of these treatments.

The effects of this condition can make day-to-day functioning difficult. Sometimes the symptoms are so severe that they interfere with an individual’s ability to work, in which case, they might be eligible for Social Security Disability Benefits.

In order to be eligible for Social Security Benefits, you will have to have detailed medical records of your condition. The records should describe a typical PTSD episode, the frequency and duration of any panic attacks and what causes your symptoms to become worse. It is also important for your doctor to comment on how your PTSD symptoms affect your ability to function at home and at work.

If you or someone close to you is suffering from PTSD, whether from military service or other traumatic injury or event, you maybe eligible for Social Security Benefits. You should contact an attorney to discuss your specific circumstances.

Kimberly Slimbaugh
Partner

Phone: 315-471-1664

State of New York Commission on Quality Care and Advocacy for Persons with Disabilities, Surrogate Decision-Making Committee Panel.

To Attorney or not to Attorney, that is the question… by Christopher Stringham

Posted by: MCV Law blogger In: Real Estate 17 May 2013 Comments: 0 Tags: Real Estate

A common question I get asked all the time by friends or family is whether or not they need to hire an attorney to represent them for a real estate transaction. The short answer is no that they do not “need” to hire an attorney and that the bank/lender involved in the transaction will provide an attorney that they can also use. The problem with this situation is that the bank’s attorney represents the interests of the bank first and yours second.

In almost all other areas of law it is actually considered unethical for an attorney to represent two parties in a single transaction due to a conflict of interest. For instance, a criminal attorney cannot represent two defendants in the same criminal trial because the two defendants have interests that may be competing and it would be nearly impossible for a single attorney to “zealously” represent both defendants.

Real estate provides an exception to this general rule as the transaction taking place is usually amicable and not adversarial in nature. So why hire an attorney? There are a number of reasons why hiring your own attorney to handle your real estate transaction is strongly recommended.

First, it is a good idea to hire an attorney right from the start so that he or she can review and approve your purchase/sale contract. While most purchase agreements are fairly standard and real estate agents are well versed in in the additional terms, it is still a good idea to have an attorney review and approve the purchase agreement to make sure you understand all the terms. Generally, once all the parties have signed the agreement, the time for attorney approval runs very quickly (i.e. 3 business days). Once the contract is set firm then a breach in the contract by either party may result in monetary loss.

Another good reason to hire your own attorney is because you want to have someone representing only your interests. As I stated before, the bank’s attorney is the banks attorney, and if push comes to shove, the bank’s attorney is going to act in the best interests of his or her client, the bank/lender.

Finally, you may want to hire your own attorney so that you have access to information. If you have questions or concerns and need answers fast you may have a hard time getting those answers from the bank/lender or their representative. However, if you have your own attorney working on your dime, you are more apt to have an open line of communication to have your questions or concerns answered, which is something that can give you piece of mind, especially for you first time home buyers.

Christopher Stringham

Phone: 315-471-1664

How much car insurance do I need? by Heather La Dieu

Posted by: MCV Law blogger In: General 08 May 2013 Comments: 0

Many people are aware that if they are in an accident that is their fault, they have car insurance to cover injuries that are sustained by the other driver. But what if you are in a car accident that is the fault of another driver and that driver only has the minimal insurance limits of $25,000/$50,000? How is it fair that you pay for insurance that covers $100,000 or $300,000, but if you are injured you may only be covered for $25,000?

That is where Supplementary Uninsured/Underinsured Motorists (SUM) Coverage comes into play. New York law requires insurance companies to offer SUM Coverage which provides coverage for accidents caused by negligent motorists who have no insurance or limits of insurance below those you carry on your policy. You may select SUM coverage in limits up to the Bodily Injury Liability Limit on your policy.

It is worthy to note that New York law requires insurance companies to provide Statutory Uninsured Motorist Coverage which provides insurance coverage to you for injuries received if you are in a car accident with a negligent motorist who has no insurance at all. Yet, that coverage is only $25,000 per person/$50,000 per accident for bodily injury and $50,000 per person/$100,000 per accident in the event of death. Your policy will automatically include these limits. However, Statutory Uninsured Motorist Coverage is very limited, not only because of the low coverage, but because the coverage only applies if the car accident happens in New York State.

It is also worthy to note that SUM Coverage is not automatically provided. It is the recommendation of this writer that you purchase SUM Coverage to adequately protect yourself if you are in a car accident. Please call your auto insurance provider to check your coverage and if necessary, obtain additional coverage.

Heather LaDieu

Phone: 315-471-1664

Heather LaDieu was admitted to the New York State Bar in 2001. She is a member of the Onondaga County Bar Association, New York State Bar Association.

Medical Expenses and Lost Wages as a Result of Motor Vehicle Accident : Gary Valerino

Posted by: MCVLawBlog In: Personal Injury 01 May 2013 Comments: 0

If you are involved in a motor vehicle accident, who is responsible for paying your medical bills and lost wages?

Pursuant to the New York State Insurance Law, every automobile insurance policy written in the State of New York must provide for at least $50,000.00 of no-fault coverage. No-fault coverage, also known as Personal Injury Protection (PIP), provides for payment of medical expenses causally-related to the motor vehicle accident, and 80% of your lost earnings from work up to $2,000.00 per month, whichever is less.

No-fault coverage under your insurance policy will cover you, or anyone else who is injured in your vehicle, regardless of who was at fault for the accident.

There are certain exclusions under the law for no-fault benefits. For example, no-fault coverage is not afforded to individuals who are injured as a result of the use or operation of a motorcycle. Likewise, there is no coverage if the accident arose out of driving while intoxicated or under the influence of a drug, intentionally causing an injury to yourself, in the course of committing a felony, or if the vehicle that you are in is uninsured.

No-fault benefits are not the only claims that you may have as a result of a motor vehicle accident. You may have a claim for additional medical expenses, lost wage expenses, and pain and suffering, as well as other damages which may be claimed against responsible parties.

The bottom line is that the New York State Insurance Law, as it applies to automobile and motorcycle accidents, is complex. If you are involved in such an accident, you should consult an attorney to assist you.

Gary Valerino
Partner

Phone: 315-471-1664

New York State Workers Compensation Law Created 1914 : William W. Crossett

Posted by: MCVLawBlog In: Workers Compensation 24 Apr 2013 Comments: 0

Until 1914 there was no Workers Compensation Law in the State of New York.

Instead, an injured worker’s remedy was to bring a lawsuit based on common law principles of negligence. That is, the injured worker had to show that the employer owed a duty to him or her, and that the employer breached that duty, causing damage or injury to the worker. The employer was allowed to argue that the injury was a result of the workers own negligence, the result of a fellow worker’s negligence, and/or that the worker had assumed the risk of injury when assuming the job. Given the vast difference in resources between the injured worker and the employer, the battle was rarely fought, and, when fought, the battle was rarely fair.

The social and economic problems arising from work-related injuries prompted the development of Worker’s Compensation Laws at the beginning of the 1900’s. Unfortunately, New York’s Workers Compensation Law did not come into existence until the tragedy that befell 146 women who died at the Triangle Shirt Waist Company in New York City, in our Nation’s worst factory fire. The fire prompted a change in the New York State Constitution allowing for the creation of the Worker’s Compensation Law in 1914.

In essence, the Worker’s Compensation Law is a grand bargain in which the injured worker gives up the right to sue his employer in exchange for a promise of medical care for the injuries arising from the event or illness, and wage replacement benefits based upon the workers earnings. The Worker’s Compensation Board was established to administer the process and to decide issues of law and fact between the injured worker and either the self-insured employer, or, more commonly, the employers insurance company.

Since 1914 the law has changed and evolved. Currently, medical treatment is subject to treatment guidelines. Wage replacement benefits are limited by the State’s Average Weekly wage, and the duration of benefits is limited pending the injured workers loss of wage earning capacity.

William W. Crossett IV
Partner

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

So I’m going to start a Blog. : William W. Crossett

Posted by: MCVLawBlog In: General 02 Apr 2013 Comments: 0

So I’m going to start a Blog.

For some time now, all of us at Meggesto, Crossett & Valerino, LLP, fondly known as MCV Law, have been learning about the new and emerging social media. We decided to take a leap and created a Facebook Page, a Twitter account, a Google+ account, and soon we will be revamping our website, MCVLAW.com. To start the journey I welcome you to my blog

The title of my blog is simply “Crossett’s Voice”.

Until our web site is revamped, this Blog, along with others from our firm, will be found on our Facebook page.

My intention is to educate, comment, and periodically offer opinions on issues concerning New York Workers Compensation Law and the practice thereof. It is not my intention to write a serial blog, expecting that everyone will read and follow my blog from the beginning. Rather, I will endeavor to center each installment around a single topic, and title it in a manner that will allow the reader to find specific information they may be seeking.

With the launch of this blog I’m inviting you to join MCVLAW at our Facebook page and to follow us on Twitter or Google+. Of course, you can also refer to our website to find out what we look like, to obtain directions to our office, and to use the general information we have posted.

William W. Crossett IV
Partner