Meggesto, Crossett & Valerino, LLP

Can Creditors Take Social Security Disability Benefits?

Posted by: In: Social Security 05 Oct 2015 Comments: 0


The answer is no, with certain exceptions.
When I creditor sues you for a debt and gets a judgment, it can ask your bank to turn over money from your account. This is called a garnishment. If funds in your account are directly deposited by Social Security, and are deposited into your account within two months prior to the garnishment order, they are protected, meaning the bank has to let you have access to 2 months’ worth of benefits. If your account has more than 2 months’ worth of SS benefits, your bank can freeze the extra money.
The only exceptions are for garnishments for child or spousal support, federal taxes or federal student loans, in which case the bank can freeze the funds, even if they are directly deposited by Social Security.
Supplemental Security Income or SSI benefits, are protected from Garnishment, even to pay a government debt or child or spousal support.

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.

Getting Prescription Medications

Posted by: In: Workers Compensation 17 Sep 2015 Comments: 0 Tags: , , , , , , ,


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:

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

    9. 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: 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

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.

 

 

 

 

 

 

 

 

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

Posted by: 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.

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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.

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

Posted by: In: Workers Compensation 10 Sep 2015 Comments: 0 Tags: , , , , , ,


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

Email: barliss@mcvlaw.com

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.

United States Senate Considers Cuts To SSDI To Help Fund Highways

Posted by: In: Social Security, ssdi 20 Jul 2015 Comments: 0 Tags: , , , , , ,

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: In: Quick Answers, Workers Compensation 15 Jul 2015 Comments: 0 Tags: , , , , , , , , , , ,


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 AccidentMaximum 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

Posted by: In: General, Personal Injury, Real Estate, Social Security, ssdi, Traffic, Workers Compensation 13 Jul 2015 Comments: 0 Tags: , , , , , , , , , ,

3 Reasons To Get 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

Email: barliss@mcvlaw.com

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.

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

Posted by: 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.

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Gary Valerino
Partner

 

Email: gvalerino@mcvlaw.com

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.

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

Posted by: 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

 

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.