Can I sue my company or co-worker for pain & suffering when I am injured on the job?
The general answer is no. In New York State workers’ compensation is the exclusive recourse for on-the-job injuries. This has been the case for over a hundred years. The concept was to bring immediate cash and medical benefits to injured workers, rather than forcing them to sue for damages (a very lengthy and expensive process). It was a great concept at the time, but what was once a liberally construed and fair system has become ultra conservative, slow and overly complicated.
There are a few exceptions to this general rule. They are:
If your employer was not carrying workers’ compensation insurance (which is required) at the time of your accident.
If a third party (another contractor on a construction site) was responsible for your injuries you may sue that company for pain & suffering while continuing to receive workers’ compensation benefits.
Injuries involving falls from scaffolds. You are permitted to sue general contractors and property owners for elevated falls regardless of the employer’s own negligence or mistake.
Motor vehicle accidents caused by another driver (who is not your co-worker).
If work is being done at your place of business (electrical, plumbing, no ice removal from parking lot, etc), as long as the contractor is not a co-worker, and has it’s own company.
Intentional injuries caused by boss or co-worker. Must be “intentional.” Gross negligence still protects your employer from being sued.
Finally, on a slightly different note, if you ever hire a live-in or domestic worker, nanny, etc. for more than 40 hours per week (or to live in your home) to care for you or your family members you must obtain your own workers’ compensation policy. Your homeowner’s policy will not protect you.
The Do’s and Dont’s of Independent Medical Examinations (IMEs)
Once you have filed your claim, and are receiving or seeking weekly checks and/or medical benefits the insurance company will usually request an examination by one of their medical consultants. Although these are termed “independent medical examinations,” there is nothing “independent” about them.
Requests for IMEs usually occur once you have been receiving benefits for a few months, when your doctor has requested authorization for surgery or procedures that are not deemed “pre-authorized,” once your condition has become permanent, and you are eligible for a final award or if you have been using prescribed opioid medications for a long period of time.
There are several technical rules surrounding these exams, but the basics are:
- It must be arranged in the same County in which you live.
- It must be performed by a “like” physician (chiropractor, orthopedist, etc).
- You must receive notice of this exam within seven business days.
- If you live out-of State, it must be performed reasonably close to your home.
Although you are permitted to record or videotape the exam, you should always advise the doctor of your intentions.
Always be on time.
Always be respectful (despite the fact that this is an insurance company exam).
If asked to complete a questionnaire, be thorough and honest, (especially if you have any related pre-existing injuries). Request copies of anything you have completed and signed.
Always request and bring copies of the most recent reports from your doctor, especially if they are seeking authorization for surgery or testing.
Volunteer as many details of your daily symptoms and problems as time allows.
Advise the IME of any tests or surgery that are being requested.
Do not be confrontational.
Do not record this exam without consulting with your attorney first. It sometimes makes the IME confrontational.
Do not volunteer any details about your case, such as your weekly rate, or what your expectations are concerning returning to work.
Do not exaggerate your symptoms.
Do not volunteer any details of your personal life unless questioned. These questions should only be relevant to activities of your daily living habits.
Do not act any differently when walking to your car after the exam Often times the IME will be observing you after the exam.
Do not get upset with the shortness of this exam. They are usually only 5-15 minutes in duration.
The bottom line is this is your employer’s insurance company. They are a necessary aspect of your case. Obviously, they will lean towards the insurance company, but will often approve medical procedures, and concede a high level of disability if they have current reports and you are open and respectful towards them Do not cancel your examination without re-scheduling with the insurance adjuster.
In 2014 the Workers’ Compensation Board implemented a new hearing process to address possible abuse of long-term opiate medication.
The medical treatment guidelines allow long-term opiate use only in limited circumstances. This process is initiated by either a medical report or record review performed by the insurance company which concludes that a claimant should be weaned from opiates.
Copies are sent to your treating doctor who should immediately respond to both the carrier and Workers’ Compensation Board if he/ she disagrees with their conclusion. If your doctor responds and explains why your current medications and dosages are still necessary this could, possibly, end this process.
If your doctor does not respond or fails to properly address the issue a hearing will be scheduled, and medical depositions ordered by the Law Judge. If the Judge rules that a weaning program should be directed the carrier will be responsible for the cost of the program along with the cost of the medications. After 30 days the carrier will only be responsible for the cost of narcotic medications written by an addiction treatment program physician.
We can’t stress how important it is that your doctor fully cooperates. Unfortunately, many do not and the end result is our law firm being required to appear for you in Court without any supporting documentation from your doctor. The outcome of that hearing is almost always a direction that you begin a weaning program, even if you still require continued use of your medications to help with your chronic and severe pain.
Virtual hearings are coming!
The Workers’ Compensation Board has recently completed a pilot program in Upstate New York involving “virtual hearings.” This process allows injured workers, attorneys and witnesses to attend hearings online. They are now being rolled into various downstate hearing points, such as Brooklyn and Staten Island. The remaining downstate hearing points are being wired to eventually permit this technology.
To participate in virtual hearings you must have a computer with a web cam, mobile device, or video conference system. If you will be using a laptop it must have a built-in camera. The hearing notice you receive provides details on how to participate in this process. Before you attempt to participate you should go on the Board’s website and follow the instructions to see if your device is compatible. Even if you and your attorney are both present at the hearing point your hearing will still be handled electronically (seems a little silly).
Our law firm has been using the virtual process selectively since we would rather be in Court to represent our clients. An unrepresented claimant is also required to have an acceptable mobile device or laptop to appear in person at the hearing point.
If you have a pending case we strongly urge you to consult with an experienced attorney to not only represent your interests against the insurance company (not your friend), but to help navigate this “virtual” process. If you are represented by counsel you have the option of appearing by phone or through your computer or mobile device. This is especially helpful for injured workers who are in too much pain to travel to the hearing, do not want to take a day off from work or have other obligations which prevent them from attending. You will not be judged negatively by the Law Judge if you allow your attorney to take advantage of this technology to save you the time and effort of travelling to your hearing.
Workers’ compensation fraud has become a juicy issue for insurance companies lately. They like to publicize the rare cases of people who are caught working at another job while receiving workers’ compensation benefits. The Workers’ Compensation Board has also become more aggressive towards fraud by injured workers, despite the fact that Employer fraud (understanding payroll, miscalculation of employees) is far more common.
Section 114(A) allows for weekly benefits to be suspended or permanently terminated if a claimant intentionally misleads the Judge or insurance company while receiving or claiming weekly benefits. In addition, it allows for criminal prosecution if the behavior is egregious. Until recently this fraud defense was used mostly for claimants getting caught working while receiving benefits. It has now been expanded to situations where a claimant fails to inform an insurance company or Doctor who examines for an insurance company of a prior injury or accident involving the same injury site involved in the most recent injury (even if the injury was minor).
The Workers’ Compensation Board has even changed the claim form (C-3) for injured workers. It now requires a claimant to supply details concerning prior similar injuries or accidents. Insurance Companies have been aggressively pursuing fraud penalties against injured workers for even minor, unintentional violations of this section of the law. The Courts have been affirming unfavorable decisions by Law Judges and permanently terminating benefits (and sometimes ordering restitution).
It is very important to consult with an experienced attorney as soon as possible following an accident or illness to not only receive assistance with your case, but to also avoid having your benefits suspended for these types of “fraudulent behavior.”
If you have had an injury or illness which prevents you from returning to work you are eligible for biweekly compensation checks. You will receive the maximum rate as long as both your doctor and the insurance carrier’s medical consultant (if you have had an exam) agree that you are 100% disabled from all work ( not just your prior job).
After every exam by your doctor you should always discuss with him/ her whether they feel you are still 100% disabled.If they feel you are less than 100% New York State requires you to “actively seek work within your work restrictions.” This applies even if you are also receiving Social Security Disability benefits. This also applies if a Law Judge has determined that you are partially disabled.
There are a number of ways to prove “attachment to the labor market.” However, you will, eventually, be asked to testify at a hearing concerning this issue. If you do not satisfy the Law Judge that you have made reasonable efforts to obtain gainful employment within your medical restrictions (even with a 90% disability) your biweekly checks will be discontinued.
It is extremely important that you discuss this issue with your attorney. If you are not represented you should arrange a consultation with an experienced attorney in this field as soon as possible.
We previously reported that that the Workers’ Compensation Board, under pressure from the insurance industry and small business council had proposed extreme changes to the law which, if passed, would have had devastating effects on working men/women who are eligible for awards for permanent injuries suffered on the job.
We are happy to report that as a result of pressure from your legislators, labor unions, the press and media, your own letters and calls, and many Bar Associations the Workers’ Compensation Board has backed off, and proposed amended guidelines for determining permanency awards on November 22, 2017. These “amended” guidelines offer only minor changes to the original 2012 guidelines which are used to determine permanency awards for injuries to extremities (arms, legs, etc). The original proposals would have effectively eliminated permanency awards which have been part of the law for the past 100 years, and would have had a devastating effect on permanently injured workers and their families.
While the Compensation Board will have to vote on what it wants to adopt by December 29, and the changes become permanent on January 1, 2018 there will still be a public comment period from now until December 29. It is important that you keep up the pressure on your elected representatives to protect you and your families from the devastating financial effects that the Compensation Board originally proposed.
This an important example of how you actually have a voice in government and can overcome pressure and tremendous financial resources from interest groups who are only concerned with even greater profits instead of protection for working families who have sustained permanent injuries and significant loss of income.
On September 11, 2016 Governor Cuomo signed legislation that extends eligibility and benefits for World Trade Center workers and volunteers to September 11, 2018. This also allows you to reopen previously time barred World Trade Center claims and considers them timely. If you were involved in the rescue, and clean-up operations between September 11, 2001 and September 11, 2002 and were injured or developed an occupational disease you should consult with an experienced attorney who is knowledgeable with the workers’ compensation law.
These types of claims require medical development and the correct paperwork to begin the process. They are often quite complex. Workers and volunteer claims are handled differently. It is important to consult with a knowledgeable attorney before attempting to pursue these benefits on your own.
The Third Department recently issued a major decision regarding workers’ compensation which could potentially have a huge impact on the outcome of many cases.
In Matter of Picone, claimant appealed a decision which ruled that claimant was entitled to a schedule loss of use award and that apportionment applied to that award. Prior to her workers compensation accident in 2011, claimant suffered a non-work-related injury to her left knee and surgery was performed on the knee in 2002 and 2009. Then in February 2011, claimant slipped on ice while working and she was awarded workers’ compensation benefits for an injury to her left knee. In 2015, a Workers’ Compensation Law Judge found that her schedule loss of use award should be apportioned 50% to the prior non-work-related injury.
The Court affirmed this decision. They stated that “Apportionment may be applicable in a schedule loss of use case if the medical evidence establishes that the claimant’s prior injury – had it been compensable – would have resulted in a schedule loss of use finding” (Matter of Wilcox v Niagara Mohawk Power Corp., 69 AD3d 1264, 1265 . Here, the treating orthopedic surgeon, opined that claimant’s prior non-work-related injury would have resulted in a schedule loss of use of had it been compensable, and claimant’s schedule loss of use award should be apportioned 50% between the prior non work related accident and the 2011 injuries.
Therefore, it is imperative that when a new accident occurs that the treating physician knows of any prior accidents and has an opinion on if a prior accident is apportioned to the new one or not. Otherwise, this decision will likely be left purely in the hands of the doctor who works for the insurance company.
For nearly a century the Workers’ Compensation Law has been in existence to provide injured workers and their families’ immediate financial and medical benefits. The law was enacted as a “trade off,” to prevent lawsuits against their employers for pain and suffering as a result of their negligence. This was a significant compromise for injured workers who were promised that the law would be liberally construed and Judges would act in their best interests (along with Appeals panels.)
Unfortunately, as a result of pressure from insurance companies and the business council, injured workers have had their lifetime weekly awards capped at ten years, and have had their medical insurance significantly watered down, with treating doctors required to complete mountains of paperwork.
Despite the fact that costs have been significantly reduced and premiums have been lowered the Workers’ Compensation Board (the Board) is being pressured by these same two groups to drastically reduce awards for permanent damage to extremities (arms, legs, shoulders, etc.). The Governor merely asked the Chairman of the Workers’ Compensation Board (who has announced that he is resigning from his position) to “modernize” the guidelines for determining permanency to reflect recent advances made in the medical field. Instead, the Board has proposed a complete new set of guidelines, almost 200 pages in length, which will result in a drastic reduction in awards for permanent injury, and an incredible amount of additional paperwork for treating physicians.
Public comment is permitted for 45 days. These changes do not become official until January 1, 2018. Various labor unions, newspapers and State legislators have expressed their outrage at these proposals. We encourage you to speak with your State Senators, Assemblyman and treating doctors as soon as possible. With enough public outcry by the people who matter most (the injured workers) we are hopeful that the Governor will direct the Board to either make these new guidelines much more fair and humane or completely eliminate them all together.
In 2010 the Compensation Workers’ Compensation Board issued the “Medical Treatment Guidelines”.
These guidelines cover injuries to the neck, back, shoulders and knees (and subsequently covered carpal tunnel syndrome). Although these guidelines put limits on conservative therapies such as chiropractic, physical therapy, acupuncture and message therapy they made it much easier and quicker to have most surgical procedures done.
If your physician has attempted conservative treatment, performed diagnostic studies such as an MRI (which were positive) and your condition has not improved he/she may schedule you for surgery without waiting the customary weeks/months to obtain authorization from the insurance company. Although some surgeries such as a total knee replacement and back fusion still require authorization, most do not. Check with your health care provider to see if your surgery is “pre-authorized”, it can save you a lot of aggravation and unnecessary pain.
The Pennsylvania Supreme Court recently issued an important decision concerning permanent benefits for injured workers, which struck down a key provision of their law. For the past 20 years insurance companies were permitted to require injured workers to see a physician after two years to put a % on their permanent impairment. If the impairment rating (using a formula which was very arbitrary) was below 50%, the injured worker was no longer eligible for permanent weekly awards. We hope that the NYS Workers’ Compensation Board has become aware of this recent, important decision. The NYS Workers’ Compensation Board has been attempting to require injured workers to begin the process of “capping” their weekly benefits after two years, without considering all of the realistic factors which prevent them from being able to re-enter the work force.
The New York Workers’ Compensation Board has recently issued new forms which must be filled out in order to document a proper job search and to be attached to the labor market. This must be done by anyone who is partially disabled and out of work, in order to be able to collect benefits.
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