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The New York Disability Law Blog

Information and Help for Disabled Individuals with Workers' Compensation, Social Security Disability and Construction Accident Claims

Are You Eligible For Workman’s Compensation?

By Brendan Turley on Posted in NY Workers Compensation Claims

The answer may surprise you. Under the following conditions you may not receive Worker’s Compensation benefits:

1. Your claim involves working for a non-profit and you are unpaid. It should be noted however, that if you receive a stipend, room and board or any other perks with a monetary value, the position may be considered a paid occupation. But any money that received on the part of the employee to be used as work expenses is not considered a stipend.

2. Any clergymen who perform religious ceremonies or duties.

3.  Anyone injured while playing on a non-profit amateur sports team. You may be entitled to benefits though if you are employed by a firm, company or business that is engaging in such activity. For example, if Pete gets injured during a hockey game while playing for his boss’s team, he may very well have a case.

4. People engaged in a non-manual capacity in or for a nonprofit religious, charitable or educational institution. Manual Labor includes, but is not limited to: carrying materials, filing, playing a musical instrument, any sort of maintenance or construction etc.

5. People who are not explicitly employed by a charity or religious institution but do work in return for charitable aid, as well as people in sheltered workshops who are receiving rehabilitative services.

6. People with specific occupations that are covered under another worker’s compensation system.

7.The spouse and minor children (under 18 years old) of an employer who is a farmer as long as they are not under an express contract of hire

8. Certain employees of foreign nations or Native American Nations.

9. New York City police officers, firefighters, and sanitation workers who are covered under provisions of the New York State General Municipal Law.

10. Anyone (minors included) doing occasional, non-regular yard work or chores at a one-family, owner occupied home or non-profit/noncommercial organization. Though coverage is required if a minor is handling powered equipment such as a lawnmower or chainsaw.

11. Anyone who signs a contract stating that they are an independent contractor (real estate sales people, media sales representatives, insurance agents or brokers etc.).

12. Sole proprietors, partners, and certain one/two person corporate officers with no other individuals providing services integral to the business (although coverage may be obtained voluntarily).

 

 

What You Need To Know About Receiving Cash Benefits

By Brendan Turley on Posted in Long Term Disability / ERISA, NY Workers Compensation Claims

If you are injured on the job, your employer should be paying for any necessary medical expenses. When it comes to the money you’d normally be making, that’s a little more complicated.
While you may be receiving medical benefits after a work related accident, your not going to see a dime of the wages you’d normally have coming to you for the first seven days you are disabled. Once you’re out of work for eight days though, it’s a different story. At this point, you’re entitled to your regular pay AND once you’ve been out of work for fourteen days, you’ll start to see some of the money you would have been making during your first seven days of being disabled.
HOWEVER, you will not be receiving the entirety of your paycheck. There’s a basic formula used to determine how much you are entitled to:
2/3 x average weekly wage x % of disability = weekly benefit
So when Kyle, who makes $300/week working in a toll booth is partially (50%) disabled when a car speeds by as he’s handing out a ticket and breaks his left hand, he is entitled to a weekly benefit of 100 dollars.
If Kyle steps out of his booth and gets hit by a car and is completely (100%) disabled, he is entitled to a weekly benefit of 200 dollars.
If you return to work but can not earn as much money as a result of your injury, you may be entitled to a cash benefit that gives you 2/3 of what you’re missing.
See the table on this page for a description of the maximum weekly benefits you are entitled to.

Veteran’s Disability

By Brendan Turley on Posted in Veterans Disability Claims

Over 45% of the 1.6 million veterans from the Iraq and Afghanistan wars are currently seeking VA compensation for service connected injuries and disabilities.

Returning veterans may be eligible to receive numerous benefits pertaining to injuries sustained while in the service. Disability Compensation is a tax-free monetary benefit that may be received by Veterans who have been disabled as a result of an injury or illness that has been caused by or aggravated as a result of military service. Post-service disabilities may also be covered should they be deemed related to military service. Those suffering from physical as well as mental conditions may be eligible. In order to receive benefits, you must have been separated or discharged under circumstances that are not dishonorable. The affliction must also have left you at least 10% disabled. If the incident occurred during inactive duty for training, the disability must have resulted from heart attack or stroke. Medical evidence, as well as evidence linking the disability to the nature of your duty must be presented.

Under the following circumstances, it may be presumed that the affliction involves your military service:

  • Former prisoners of war
  • Veterans who have certain chronic or tropical diseases that become evident within a specific period of time after discharge from service
  • Veterans who were exposed to ionizing radiation, mustard gas, or Lewisite while in service
  • Veterans who were exposed to certain herbicides, such as by serving in Vietnam
  • Veterans who served in Southwest Asia during the Gulf War

You may apply to receive compensation online using ebenefits, or contact a local Veterans Affairs office. You should have ready access to your discharge or separation papers as well as any necessary medical and dependency records.

If you are disabled, seeking benefits and need an attorney to navigate through all the red tape, you should certainly seek out the assistance of Turley, Redmond, Rosasco & Rosasco, LLP.

We take Veterans Disability claims such as:

  • Total Disability Based upon Individual Unemployability (TDIU)
  • Traumatic Brain Injury (TBI) and concussions
  • Post Traumatic Stress Disorder (PTSD)
  • Military Sexual Assault
  • Severe Anxiety and other mental disorders
  • Severe orthopedic disabilities
  • Other physical disabilities
  • Loss of limbs
  • Severe facial disfigurement
  • Loss of hearing and Tinnitus
  • Impaired vision and blindness
  • Agent Orange claims
  • Cancer
  • Service Connected Medical Malpractice

 

Reporting Discrimination

By Brendan Turley on Posted in NY Workers Compensation Claims

Have you been fired or experienced some sort of unfair treatment after claiming or trying to claim Worker’s Compensation? If so, you should be aware that your employer is violating  The Americans With Disabilities Act of 1990. There is a penalty of $100 to $500 for each employee that is discriminated against. Form DC-120 must be filled out and sent to the nearest Worker’s Compensation Board District Office within two years of the alleged discrimination if you wish to report such incidents.

Should the board rule in favor of the employee, the employer must restore them to their former position and pay any compensation lost as a result of the discrimination.

 

Getting Assistance With Your Claim

By Brendan Turley on Posted in NY Workers Compensation Claims

You may need assistance from the Worker’s Compensation Board after reporting an on-the-job injury .Form RFA-1W-Request for Assistance By Injured Worker is provided for this purpose. The form is generally not used for claims where the case is not accepted by the employer or carrier. If you are unsure as to whether or not the claim is being argued against, you can call the WCB at 1-877-632-4996.
There are several reasons you may want to file form RFA-1W.
Maybe you’ve been out of work for more than seven days and are not receiving any compensation. Perhaps you aren’t able to earn as much money due to your disability after returning to work. Your payments may have stopped or been reduced. Maybe the Judge at your hearing directed the carrier to pay you but ten days have passed and…no money.
The form is also filed sometimes if your doctor wants to perform a procedure that hasn’t been authorized by the carrier. It is also may be used if medical documents indicate you have a permanent disability but your condition has changed. Maybe a request for medical and transportation reimbursement (Form C-257) was filed but has been denied or not responded to.
RFA-1W is also used if you’ve been recently released from prison and want to resume compensation or if you have returned to work and want to inform the Board.

Healthy New York

By Brendan Turley on Posted in Health Info

The Healthy New York program was introduced as part of the Health Care Reform Act of 2000. Healthy New York provides need-based health insurance coverage for those who qualify. The program is overseen by the New York State Department of Financial Services and is subject to state law and regulation.

All HMOs in New York are required by state law to offer Healthy NY. The program’s benefit package (along with state funding) provides more affordable health coverage including inpatient and outpatient hospital services, physician services, maternity care, preventive health services, diagnostic services and emergency services.

Eligibility varies depending on if you are  small business owner, an individual or a sole proprietor. Applications may not be submitted online or through email.

Provided here is the application for individuals and sole proprietors.

Provided here is the application for small business owners.

Appeals

By Brendan Turley on Posted in Long Term Disability / ERISA, NY Workers Compensation Claims

To appeal a decision essentially means bringing a case to a higher court system after a Judge’s ruling.

During a hearing before a Worker’s Compensation Law Judge, medical records, personal testimony and other evidence is reviewed and a decision is made as to whether or not the claimant is entitled to compensation or benefits. The Judge also decides what these include and for how long they may be received.

However, this ruling need not be the final word on the matter if either the employer or the employee deems it unfair. Either party may appeal the decision within 30 days of the Judge’s decision. Such applications to the Worker’s Compensation Board must be submitted in writing. Three Worker’s Compensation Board Members will review the case should the application be granted.

There are four possible outcomes of this review. The Judge’s decisions will either be affirmed, canceled modified or sent back for further development of the record. Should the panel disagree on some aspect of the case, any interested party may submit an application for a full board review.

Appeals of the boards decision may be taken to the Appellate Division, Third Department, Supreme Court of the State of New York within 30 days.

While a case is being reviewed by the Board Panel, the insurance company does not have to pay weekly benefits. However, compensation and doctor bills must be paid if upheld by the Board, even if an appeal is being made to the Appellate Division. Any uncontroversial aspect of the Judge’s award may be received even if an application for review is filed.

The claimant always has the right to an attorney or licensed representative who may not ask for or accept payment from their client. The Law Judge or Board Panel may determine legal fees and deduct this from the claimant’s overall compensation.

Hyaluronate Injections

By Brendan Turley on Posted in Health Info

Sodium Hyaluronate is a chemical used in the treatment of arthritis and osteoporosis (you may have seen advertisements for various brands of the drug on television). The substance is injected into the knee and essentially acts as a lubricant, shock absorber and pain reliever while also stimulating the natural production of synovial fluid. Essentially it acts as a replacement for the fluid that is naturally occurring in the joint. Therapies like this are known as viscosupplementation. It is generally used as a last resort before surgery or joint replacement should analgesics like acetaminophen fail.

It is important that you tell your doctor if you have any allergies to bird products (such as feathers, eggs or poultry), as the substance is obtained from the crown of the rooster. You should also not receive injections if you have any infections in the area where it is to be administered. Only your doctor should deliver Hyaluronate treatment and the drug has yet to be tested on joints other than the knee. You should also be aware that all drugs have side-effects and that the success of any therapy varies among individuals.

What is an Occupational Disease?

By Brendan Turley on Posted in NY Workers Compensation Claims
 Your work-related disability may not be the result of a single accident. Exposure to certain job related agents may have caused you to develop a debilitating condition over time. However, not all injuries that develop over time are occupational diseases that entitle you to benefits. The illness must be “the natural and unavoidable result of the conditions of employment”.
In other words, you can’t go out of your way to inhale fiberglass while working on a construction site or be gnawing at a lead pipe all day while working in an office and expect to receive benefits when you get sick.
The illness in question must be unquestionably linked to the type of work being done. So you may become ill at work but not be eligible for benefits. If someone is employed as a computer programmer at a building with asbestos containing materials, they are not entitled to benefits if they develop asbestos-related lung cancer. However, if an employee’s job entails handling asbestos, they may be entitled to benefits.
Workers Compensation Law Article 3 names 29 occupational diseases that are explicitly related to certain industrial processes. There is also a broader 30th category that contains “any and all occupational diseases” resulting from a hazardous environment.
Some examples of various work-related diseases and the occupational hazards they are linked to include:
  • Anthrax -Handling of wool, hair, bristles hides or skins
  • Lead poisoning- Any process involving the use of or direct contact with lead or its preparations or compounds
  • Arsenic poisoning- Any process involving the use of or direct contact with arsenic or its preparations or compounds
  • Dope poisoning (poisoning by tetrachloride-methane)- Any process involving the use or direct contact with any substance used as or in conjunction with a solvent for acetate of cellulose or nitro cellulose.
  • Glanders- Care or handling of any equine animal or the carcass of any such animal

Workers Compensation Settlements: Stipulations, Schedule Loss of Use (SLU) Awards and Section 32 Agreements

By Brendan Turley on Posted in Construction Accidents, NY Workers Compensation Claims, Social Security Disability
Generally, a “settlement” is defined as an agreement between two parties – the point when a compromise is reached and the case is closed. Such a resolution may happen before or after a NY Workers Compensation Board action.  One important aspect of New York Workers’ Compensation Law is the security of long-term medical benefits. As such, there are very specific limits to the injured party’s right to release an employer or insurance carrier from liability for these long term benefits.  The injured worker must receive a substantial cash settlement amount to make it worth giving up these generous benefits. 
 
 However, if approved by the Worker’s Compensation Board, an agreement may be reached where their future benefits and compensation may be cut off.  This is often time done through a Section 32 settlement.
 
Why settle? Often, insurance carriers want to end legal conflict as soon as possible. The person who is injured may also simply be tired of dealing with insurance companies and want to move on with their life with a cash settlement in hand.
 
There are three basic kinds of settlement:
 
Stipulations may exist in writing or in the form of an on-the-record oral agreement.  Stipulations are generally used to resolve conflicts that arise in an ordinary case and can resolve either a single issue or all issues in a case(such as average weekly wage). Once a stipulation has been approved by the judge, the Board has limited power to review the issues it includes. For the most part, appeals from approved stipulations are very rare and usually involve a factual error pertaining to the settlement.
 
Schedule Loss of Use Awards (SLU’s) are awards given to injured workers who have permanent injures to certain body pats, most often extremity injuries.  New York Workers Compensation Schedule Loss of Use (SLU) Awards . It should be noted that an injured claimant can receive a Schedule Loss of Use Award without having to lose any time from work.
 
Section 32 Agreements allow for the resolution of specific issues or an entire case at any point during proceedings. It is generally considered the settlement of choice, and neither party is forced to enter into such a settlement.  The most important aspect of  a Section 32 Agreement is that the claimant is allowed to waive any or all past, present or future compensation and medical benefits.
 
If all future indemnity and medical benefits are waived, the employer and the carrier obtain a full release from future  claims for compensation and medical benefits. Such agreements must be approved by the Workers’ Compensation Board.  Section 32 Agreements that do not waive all rights (for example, those that reserve the right to medical treatment but waive future benefits) may be approved by a Workers Compensation Judge. The Board provides form C-32 for Section 32 Agreements, but the best protocol is for counsel to prepare a detailed description of the agreement reached, case history, and benefits waived using C-32 as a cover sheet.
 
If you have any questions regarding the pros and cons of entering a Section 32 settlement agreement, please call the New York Workers Compensation attorneys at Turley, Redmond, Rosasco & Rosasco toll free at 1-877-693-2529.