We’ve all heard those stereotypes about Worker’s Compensation Claims being a lot of bologna. People think of claimants wearing fake neck braces, getting hurt on purpose, hobbling into their hearing limping on one leg and walking out limping on another. It would be naive to say that this never happens, which is a real shame considering how many people legitimately deserve to receive benefits. In 2003, Lisa Cullen published an article about the extent to which people overestimate the prevalence of fraud in Worker’s Compensation. The full article can be viewed here on pbs.org. Once more, there are many instances where employers are actually the ones being shady. Businesses might pay employees off-the-books to reduce their insurance premiums. They might also misclassify workers in high-risk positions as being in low-risk positions. According to insurancefraud.org, the U.s Government Accountability Office estimated that “The number of employees misclassified by employers increased from 106,000 workers to more than 150,000 workers between 2000 and 2007. This is a conservative figure because states generally audit less then two percent of Employers a year”.
The Worker’s Compensation Board’s Office of the Inspector General (OIG) was created in 1996 as a way to combat fraud. The office is charged with investigating any parties that may be involved in knowingly making false statements as a means of influencing a Worker’s Compensation Claim. These parties may include employees, employers and health care providers.
There are many ways you can report such dubious acts. There is a toll-free 24 hour hotline you can reach at 1-888-363-6001. Fraud complaint forms can also be found here.
This week, we’ve talked a lot about the regulation of legal pharmaceutical products. Let us take a minute though to think about illicit substances.
Worker’s Compensation is considered a no-fault system. The amount of money a claimant receives may not be increased if his or her employer is being negligent. Likewise, an employee’s carelessness may not decrease their award. However, it should be noted that it might be determined that an accident was the result an employee’s intent to cause harm or have been caused by an employee’s intoxication. In this scenario, an employee loses his rights to Worker’s Compensation.
You may be subject to a drug test if you are injured on the job. Though testing positive for any illegal drugs may not necessarily disqualify you from receiving benefits, it certainly doesn’t look good, especially if you are employed in a drug-free workplace. This should NEVER deter you from seeking medical attention after being involved in an on-the-job accident.
On a somewhat related note, any person who is incarcerated for a felony will be deemed ineligible for receiving benefits.
Index to Drug-Specific Information- if a drug has been the subject of review or safety advisory, you can find it on this alphabetical index
MedWatch Alerts- you can sign up to receive email alerts from Medwatch, an agency that reports bad drug events to the FDA
Daily Med- provides labels to pharmaceuticals to consumers and professionals
Drugs@FDA-this is a search engine that allows you to look up pharmaceuticals by name or active ingredient
FDA Drug Safety Podcasts
FDA Consumer Health Information- this is the FDA’s easy-to-understand guide to all products approved by the agency including pharmaceuticals as well as food products and animal feed
Drug Product Recalls-this is where the FDA posts information about recalled pharmaceuticals
It may go without saying that you should use discretion when taking anything that is prescribed to you after a work-related illness or injury. Of course all pharmaceuticals must be subject to rigorous testing and analysis before being approved for the market. In general this means making sure that the benefits of a medication outweigh the risks associated with its use. However, many times adverse reactions arise after people have already been prescribed and begin administering a drug.
The Food and Drug Administration has released a guide to safe use of prescription medications that is summarized below.
Before a drug can be tested on people in the United States, extensive preclinical data must be collected and presented to the FDA by any organization involved with its development. This generally entails animal testing. The FDA then analyzes whether or not these tests show the drug to be reasonably safe and effective enough to tests on humans. One of the main concerns during the initial testing phase is the presence or adverse drug reactions, otherwise known as side effects.
Certain medications are required to come with FDA approved guides that detail the risks of the specific drug or drug class that is prescribed. There are also Consumer Medication Information (CMI) sheets. These are generally distributed at pharmacies and are not developed or regulated by the FDA. They contain broader information about a drug that is not included on a CMI sheet such as how to store medication, symptoms of misuse and what to do if you experience serious adverse side effects. Generally the product’s labeling may also include a “black box warning” about serious risks associated with it.
After a drug is approved and on the market, it may still be under scrutiny from the FDA. Extensive Post-Market Surveillance is conducted to make sure there aren’t any problems that did not arise during initial testing. Many issues may also come up that have to do with the manufacture of the drug or improper labeling. Problems reported with prescription medications are compiled in an electronic database called the FDA Adverse Event Reporting System (FAERS). The FDA’s safety and adverse event reporting program is called MedWatch. Their primary goal is to keep consumers and health care professionals informed about any problems that have come up with a variety of medical products and equipment.
If the FDA determines a drug’s use production and distribution a law, it may be recalled. A drug may be recalled due to problems with packaging, manufacturing or contamination as well as generally serious adverse side effects. In rare cases, the FDA may withdraw a drug if it is determined that the products side effects outweigh its benefits.
The confidentiality of any and all documents pertaining to your case are protected under Worker’s Compensation Law. Only certain parties(including employers, insurance companies and either sides’ lawyers) may access information pertinent to your claim without written consent or a court-order. Your claim may also be viewed by government agencies who are processing claims for benefits or investigating fraud. Health workers may also access certain parts of your claim as a means of determining their payment for any operations or procedures. These parties are prohibited from sharing any information contained in your personal documents.
You may authorize another group or individual to view your information by filling out Form OC-110A or by submitting and original, notarized letter to the Worker’s Comp Board. These may be submitted at any time during the course of your claim. People generally do this at the early stages of their claim so as to allow families to keep track of their benefits.
It is illegal for any future employers to require the release of documents related to your case.
Becoming disabled is a stressful and oftentimes traumatic experience. In addition to dealing with all the legal red tape, there are many problems that may emerge with respect to a worker’s family and financial status. Fortunately Social Workers provide many services for people who are undergoing such hardships.
Social Workers can help workers and families deal with many of the changes in their lives and if need be refer affordable and accessible agencies to deal with long-term conflicts. In non-controverted cases, Social Workers can even help claimants receive ample benefits. They may also be able to help explain the more complicated aspects of a claimant’s case and even help the progression of proceedings. Once more, a Social Worker can help you by making referrals to local agencies and draw up new budget plans.
In the case of minors, Worker’s Compensation Judges may also appoint a Social Worker to evaluate the situation of the claimant and recommend to whom the award should be paid. They may also carefully monitor all cases involving minors to ensure that benefits are used to the minor’s advantage.
Social Workers will also partner up with the many rehabilitative agencies to help the claimant return to work.
All services are confidential and are generally provided at no cost to the claimant. Requests for such services can be made by contacting the local Worker’s Compensation Board Office.
A directory of New York State Social Service Departments can be found here.
For more information, refer to the Worker’s Compensation Board’s page on Social Services.
Pain and Suffering is the legal term used to describe any sort of physical, emotional or mental distress which may include potentially limiting conditions such as depression or persistent aches. Generally people seek compensation for any loss of income that can be attributed to such a condition.
But Worker’s Compensation is generally a “no fault system”. By receiving worker’s compensation, an employee gives up the right to receive damages due to pain and suffering. However, you may recover pain and suffering against a third party
Many different classifications of permanent disability are detailed under Worker’s Compensation law. These include Permanent Partial Disability, Permanent Total Disability and Total Industrial Disability.
Permanent Partial Disability means that the worker is disabled for life, but not to the extent that they will never work again. People who are permanently, partially disabled are expected to find a job. They may no longer be entitled to benefits if they do not make an effort to find work or take a job that pays less. There are two kinds of Permanent Partial Disability, schedule loss of use and non-schedule. However, medical benefits will still be available if the former employee is not diligently looking for work. Insurance companies may raise a bit of a stink though if you are receiving weekly cash benefits and “voluntarily” removing yourself from the labor market OR if you are working.
Schedule Loss of Use and employee has permanently lost the full use of an extremity (such as an arm, leg, eyesight, hearing etc.). Compensation is only awarded for a predetermined number of weeks. Any benefits that have already been paid before schedule loss of use benefits are received are deducted from the total SLU award.
Non-Schedule is essentially any permanent partial disability not covered by SLU. It involves permanent organ or bone damage (excluding arms and legs). If the accident occurred BEFORE March 13, 2007, then the claimant is entitled to benefits for as long as they are disabled. If the accident occurred AFTER said date, then the number of weeks in which they may receive benefits depends on just how disabled they are (see table below).
525 weeks for loss of wage earning capacity of greater than 95%
500 weeks for loss of wage earning capacity of greater than 90% thru 95%
475 weeks for loss of wage earning capacity of greater than 85% thru 90%
450 weeks for loss of wage earning capacity of greater than 80% thru 85%
425 weeks for loss of wage earning capacity of greater than 75% thru 80%
400 weeks for loss of wage earning capacity of greater than 70% thru 75%
375 weeks for loss of wage earning capacity of greater than 60% thru 70%
350 weeks for loss of wage earning capacity of greater than 50% thru 60%
300 weeks for loss of wage earning capacity of greater than 40% thru 50%
275 weeks for loss of wage earning capacity of greater than 30% thru 40%
250 weeks for loss of wage earning capacity of greater than 15% thru 30%
225 weeks for loss of wage earning capacity of 15% or less
Permanent Total Disability means there is no limit as to how long a person can receive benefits. This essentially involves finding that the claimant can no longer do useful work and that the injury was solely the result of a work-related injury or occupational disease. They are relieved of the duty to seek employment.
Total Industrial Disability is sometimes awarded when a worker is permanently partially disabled but due to outside factors is unable be employed. They may continue to receive weekly and medical benefits, but must wait until a judge approves an end to their work search duties.
1. Look sharp, try not to dress like a slob and be well groomed.
2. Treat everyone with respect. Don’t call anyone dude or lady. Sir and ma’am will do just fine.
3. Tell the truth. Everything you say in court is recorded and could very well come back to bite you in the foot if you change your story. If that happens, there goes the foundation of your case.
4. If you don’t know the answer to a question, that is fine. Its always better to admit you are unsure or unaware than to just make something up.
5. If a question can be answered with a mere “yes” or “no” than by all means do so. You don’t want to volunteer more information than was requested. Use as few words as possible and avoid asking questions.
6. Be very clear when speaking and do not nod or shake your head when asked a question. The court reporter may not understand.
7. If you do not understand a question ask that it be repeated. Be aware that some questions may have double meanings.
8. Think before you speak.
9. DO NOT lose your temper. It may cost you the case.
10. If your lawyer objects to a question, stop talking. Your lawyer will tell you whether or not to answer the question after objecting.
11. The opposing lawyer has the right to question you. Do not argue with him.That’s your lawyer’s job.
12. Depositions are very serious proceedings. Do not try to be friendly or joke around.
13. Remember, your lawyer may not tell you what to say. They may only advise that you answer truthfully.
The Family Medical Leave Act (FML) was enacted in 1993. Any employer with 50 or more employees is subject to the act. Eligible employees must have worked for their employer for one year or over 1250 hours.
The act allows for twelve weeks of leave in a twelve month period for the following reasons:
-the birth of a child/to care for a child under one year of age
- to care for a newly adopted or foster child within one year of the child’s placement
-to care for a spouse, child or parent with a serious medical condition
- any qualified reason revolving around the employee’s spouse, child or parent’s involvement in the military.
Additionally, twenty six weeks of leave may be given to an employee who must care for an injured military service member who is a spouse, son, daughter, parent, or next of kin.
The employee must be restored to his prior position (or an equivalent one) upon returning from leave. Usually they are not paid in their absence, but may substitute such leave for paid sick or vacation pay if they are entitled to do so. If the employee does not return at the end of the twelve week period, the employer is not obligated to hire them back.