NEW YORK STATE WORKERS COMPENSATION THE WORKERS COMPENSATION BARGAIN

Transcription

1 NEW YORK STATE WORKERS COMPENSATION Robert E. Grey Grey & Grey, LLP Offices at: 115 Broadway Suite Queens Blvd Suite 1505 New York, New York Forest Hills, New York (212) (718) East 149 th Street 203 East Post Road Suite E Bronx, NY White Plains, NY (718) (914) Main Street 646 Main Street Farmingdale, New York Grey & Grey, LLP, May Port 10, Jefferson, 2017 New York (516) (631) THE WORKERS COMPENSATION BARGAIN Employers: Promised speedy payment for lost wages and medical bills for occupational accidents and illnesses, without regard to fault and without a formal legal process. Employees: Gave up the right to sue. 1

2 WHY FILE FOR WORKERS COMPENSATION Lost wage benefits Medical coverage Avoid cost-shifting from employer to union/employee Motivate employer to fix the hazard WHO THE LAW COVERS Covered employees Employee vs Independent Contractor Excluded employment New York Jurisdiction Domicile of Employee Location of Employer Location of Accident 2

3 WHAT THE LAW COVERS Accidents Arising Out of and In the Course of Employment In the Course of Employment = while at work Outside Workers Special Errands Dual Purpose Trips Gray Area WHAT THE LAW COVERS (cont.) Accidents Arising Out of and In the Course of Employment Out of the Employment = Due to the Work Presumption Assaults Heart Attacks/Strokes Unwitnessed Accidents 3

4 WHAT THE LAW COVERS (continued) B. Occupational Diseases 1. Peculiar to and Characteristic of the Employment. a. The nature of the occupation, not how the job is done by a particular worker or employer. THE CLAIM FILING PROCESS A. Notify the Employer 1. Accident claims: 30 days from date of accident 2. Occupational disease claims: 2 years from date of disablement 4

5 THE CLAIM FILING PROCESS (continued) B. File the Claim 1. C-3 form must be filed within 2 years of the date of accident or disablement C. Medical Proof 1. C-4.0 form Form C-3 (Employee Claim) 5

6 Form C-4.0 Medical Report Form C-4.0 (cont.) 6

7 Medical Proof The C-4.0 form must include: 1. History of the work activities or exposures 2. Diagnosis 3. Medical opinion that the diagnosis was probably caused by the work activities or exposures (causal relationship) Temporary Disability Benefits 1 week waiting period Waived if disability exceeds 2 weeks Schedule Loss of Use Permanent injury to a limb Permanent Partial Disability Permanent Total Disability Death Benefits 7

8 Benefit rate is based on: Average Weekly Wage Degree of Disability Date of Accident Average Weekly Wage Earnings in 52 weeks before accident Includes concurrent employment Based on legal formula 8

9 Degree of Disability Total (100%) Disability = 2/3 of AWW 75% Disability = ½ of AWW 50% Disability = 1/3 of AWW 25% Disability = 1/6 of AWW Date of Accident: 7\1\92 = 400 (min. 40) 7/1/07 = 500 (min 100) 7/1/08 = 550 7/1/09 = 600 7/1/10 = /1/11 = /1/12 = /1/13 (min 150) 7/1/13 = /1/14 = /1/15 = $ /1/16 = $ /1/17 = $

10 AWW = $ % Dis = $400 AWW = $1, % Dis = $400 (pre 7/1/07) $800 (7/1/13 fwd) 75% = $300 75% Dis = $400 (pre 7/1/07) $600 (7/1/09 fwd) AWW = $600 50% = $ (pre-2013) $150 (5/1/13 fwd) AWW $1,200 50% = $400 25% = $66.67 (pre-2007) $100 ( ) $150 (5/1/13 fwd) 25% = $200 10

11 Reduced earnings 2/3 of the difference between the AWW and the post-injury earnings AWW = $1,200 RTW earning $675/week Lost wages = $525/week WC rate = $350 (2/3 of $525) Permanent Partial Disability Benefit rate calculated based on degree of disability Since 3/13/07, time limit on PPD benefit weeks Since 4/10/17, time limit on temporary disability benefit weeks (130 weeks) 11

12 PPD Caps: Degree of Disability = Weeks of benefits 96%-99% = 525 weeks % = 500 weeks % = 475 weeks % = 450 weeks % = 425 weeks % = 400 weeks % = 375 weeks % = 350 weeks % = 300 weeks % = 275 weeks % = 250 weeks. 1-15% = 225 weeks. Schedule loss of use Awards made for permanent loss of use of a limb Amount of award depends on: Which limb Average Weekly Wage Date of accident Extent of the loss Prior payments 12

13 AWW $600 SLU 10% Hand 24.4 weeks WC Rate = $400 Award = $9,760 If 8 weeks of lost time paid at $400/wk then deduct $3,200 AWW $1,200 SLU 10% Hand 24.4 weeks WC Rate = $800 Award = $19,520 If 8 weeks of lost time paid at $800/wk then deduct $6,400 Permanent Total Disability 2/3 of AWW up to maximum rate for the date of accident No time limitation Death Benefits 2/3 of AWW up to maximum rate for the date of accident Payable to surviving spouse, children under 18, children under 23 who are full-time students 13

14 Medical Treatment 100% paid by employer/carrier Medical Treatment Guidelines Neck, back, knee, shoulder, carpal tunnel Pre-authorize some treatment Pre-deny all other treatment MG-2 Variance must be filed to deviate from MTG Other Injuries No pre-approval for tests/treatment up to $1,000 Assembly The Claim Process WCB assigns a case number on receipt of one document (C-3, C-4, FROI) Indexing WCB will NOT index case until it has BOTH a C-3 or FROI AND a C

15 Claim Process (cont.) Employer Response Accept Claim File FROI-00, pay benefits or medical treatment Contest Claim File FROI-04 (notice of controversy) Claim Process (cont.) Employer Defenses Late notice Late claim filing No accident Accident not in the course of employment Afterthought Solely by reason of intoxication Injury not causally related 15

16 Claim Process (cont.) Accepted Claims No lost time = no decision at all Most other claims = non-hearing decision Administrative Decision or Proposed Decision Makes legal findings about injury, wage, lost time, benefits Closes case without a hearing AWW may be wrong Award for lost time may be wrong Loss of award for schedule loss of use Hearings Claim Process (cont.) Held in contested cases or upon request WCB will try to avoid holding a hearing RFA-1 or RFA-1W Appeals Go to a panel of 3 Commissioners May take 6-9 months to decide 16

17 Lawyers Cannot be paid directly by the injured worker Fees are set by the WCB Either at hearing or by non-hearing decision Fees are deducted from any increased or continued award in excess of what the employer or carrier previously paid So if no additional benefits, no attorney fee The End 17