Injured Worker | MCV Law

How Does Workers’ Comp Work?

Posted by: William Crossett In: Workers Compensation 23 Dec 2015 Comments: 0 Tags: hurt at work, Injured Worker, New York Workers Compensation, syracuse attorney's, Syracuse Injured Worker, syracuse workers compensation

Under the New York State Workers’ Compensation Law, there is a two-tier statute of limitations:

Pursuant to Section 18 of the Law, you have 30 days from the date of accident or knowing that you have a work-related sickness or illness to report it to your employer (this is called “notice”),
Pursuant to Sections 28 and 45, you have 2 years from the date of accident or knowing that you have a work-related sickness or illness to file a claim with the Workers’ Compensation Board.

How Does Workers’ Comp Work: Notifying Your Employer

An important part to understanding how Workers’ Compensation works is knowing deadlines for notifying your employer of your work related injury. The timing of when you notify your employer of your work related injury is very important, as it can affect the outcome of your case.

While you must give notice to your employer within 30 days of knowledge of the injury, some employers have a policy that requires almost immediate notice of an injury. The employer may attempt to use your failure to abide by this policy as a reason to deny workers’ compensation benefits. However, this is not controlling under the Workers’ Compensation Law.

How Does Workers’ Comp Work: Who Should You Tell About Your Injury?

Essential to answering the question “How does Workers’ Comp. work?” is knowing who at your workplace you need to tell about your injury. It is not enough to tell a co-worker that you’re injured. Rather, you need to give notice to:
• Someone with authority to take the injury report,
• Your supervisor, or
• Human Resources representative.

How Does Workers’ Comp Work In Terms of How I Should Tell My Employer?

Notice does not necessarily have to be in writing. It can be given orally, although it’s always best to document your injury. Keep in mind that in certain instances, such as being taken away by ambulance, it can be argued that there was an implied or actual notice of the injury.

On the other hand, sometimes people will have injuries or become sick at work and they won’t know exactly what made them sick until sometime later. This is particularly true with occupational disease claims. An example of this type of claim would be someone who becomes sick and has a problem breathing without recognizing that it is a work-related asthma condition until they’ve been evaluated by a variety of medical providers.

Once there is a diagnosis from a doctor that the problem was related to work, it is best to comply with Section 18 of the Workers’ Compensation Law by giving a written notice to your employer. There is no special form to give notice and then to file a claim.

How Does Workers’ Comp Work: How Long to File A Claim

How does Workers’ Comp work in relation to how long you can take to file a claim? You have two years to file a Workers’ Comp claim. This two year limit to file a claim applies to two years from the date of the accident or two years from knowing or should have known, in an occupational disease case.

How Does Workers’ Comp Work in Relation to Who Needs to File A Claim?

Injured workers should file a claim by completing a C-3 Employee Claim. The employer has a similar obligation to report injuries to the Workers’ Compensation Board.

How Does Workers’ Comp Work: Can An Employee File a Claim?

Many people are under the impression that only the employer can report an accident–this is not true. An injured worker or family member can commence a Workers’ Compensation claim on their own.
At MCV Law, it is out opinion that it is best practice to file a claim as soon as you have evidence that you have a work-related injury or illness.

How Does Workers’ Comp Work: Form C-3

Care must be taken when completing the paperwork; while not legally required almost all claims are started using the New York Workers’ Compensation Board forms. To file a claim an injured worker uses Form C-3, called “Employee Claim.”

The C-3 form contains questions about the injury or sickness, as well as biographical information about yourself and your employer. The form should be completed with care, especially the questions dealing with the details of the event or illness, as well as prior injuries or sicknesses.

What is my Employer Supposed To Do?

How does Workers’ Comp work on your employer’s end? The employer should make a report of an accident or sickness on form C-2 “Employers Report of Accident.” This can be done in writing, online, or by calling their insurance carrier. The employer must also complete other forms, which include Form C-240 showing the actual amount of money earned by the employee for the 52 weeks prior to the injury, Form C-11 reporting employee’s lost time from work, and to provide other information helpful to the Workers’ Compensation Board in administering the claim.

How Does Workers’ Comp Work With Help From A Workers’ Compensation Attorney?

This post is intended as an informative introduction for answering the question “How does Workers’ Comp work?” Workers’ Compensation law is complicated, and you risk receiving compensation that may be less than the maximum amount you may be entitled to when trying to navigate Workers’ Compensation without professional legal representation.

There’s a lot more that goes in to fully answering the question “How does Workers’ Comp work?” As your case moves forward, questions will arise in relation to the specifics of your case. Because of this, fully understanding the intricacies of the Workers’ Compensation claim process to benefit injured workers requires extensive experience. For over 30 years, MCV Law’s Workers’ Compensation attorneys have protected the rights of injured workers.

For a free initial consultation, contact us.

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. 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

Email: crossett@mcvlaw.com

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

Email: crossett@mcvlaw.com

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

Email: crossett@mcvlaw.com

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

Email: crossett@mcvlaw.com

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.

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

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.

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!

Try Our Workers Compensation Benefits Calculator!

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

Email: barliss@mcvlaw.com

Phone: 315-471-1664