MCV Law blogger | MCV Law

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

Email: crossett@mcvlaw.com

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

Email: kslimbaugh@mcvlaw.com

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.

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

Email: cstringham@mcvlaw.com

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.

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

Email: hladieu@mcvlaw.com

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.

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

Email: crossett@mcvlaw.com

Phone: 315-471-1664

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

Email: kslimbaugh@mcvlaw.com

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

Email: kslimbaugh@mcvlaw.com

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

Email: cstringham@mcvlaw.com

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

Email: hladieu@mcvlaw.com

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.