New York State Workers Compensation

Transcription

1 David P. Grey Ret. Robert E. Grey Brian P. O Keefe Kevin M. Plante Daniel A. Dutton Alissa P. Gardos Sherman B. Kerner Christa M. Collins Ronald L. Epstein Peter Tufo Steven D. Rhoads Sanjai Doobay Evelyn F. Gross Andra Fraiberg-Vetro Stuti Desai 1. Who is covered New York State Workers Compensation a. employer/employee relationship b. jurisdiction c. covered employment 2. What is covered a. accidents i. in the course of employment - outside workers - special errands - dual purpose - gray area i out of the employment - presumption - assaults - heart attacks and strokes - unwitnessed accidents time limitations - notice - statute of limitations NASSAU SUFFOLK* QUEENS MANHATTAN BRONX* WESTCHESTER* 360 Main Street 646 Main Street Queens Boulevard 115 Broadway 305 East 149th Street 2032 East Post Road Farmingdale, NY Port Jefferson, NY Suite 1505 Suite 403 Second Floor Suite E (516) (631) Forest Hills, NY New York, NY Bronx, NY White Plains, NY *By Appointment Only. (718) (212) (718) (914)

2 b. occupational diseases 3. Benefits i. peculiar to and characteristic of the employment date of disablement - notice - statute of limitations i hearing loss a. Temporary Disability Benefits. i. The waiting period: no compensation for first week out. If out for 2 weeks, benefits are due for days lost in the second week. If out one day into the third week (15 days of disability) the waiting period is waived and benefits are payable back the beginning. - Days are counted starting with the first full day missed from work (does not include the date of the accident. - Days are counted starting from the first medical evidence of disability. Average Weekly Wage: The law includes a formula based on wages earned in the 52 weeks before the accident. - If the worker has multiple jobs, all are considered (concurrent employment). - Workers under the age of 25 are entitled to an adjustment (wage expectancy). i Temporary Total Disability. - 2/3 of the worker s average weekly wage, up to the maximum rate for the date of the 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 =

3 5/1/13 (min 150) 7/1/13 = /1/14 = /1/15 = $ /1/16 = $ /1/17 = $ iv. Temporary Partial Disability. - Degrees of partial disability are generally mild (25%), moderate (50%) and marked (75%). 75% disability = half of average weekly wage 50% disability = one-third of average weekly wage 25% disability = one-sixth of average weekly wage vi. Reimbursement to the Employer. - If wages are paid for time out of work due to on-the-job injury, the workers compensation award for the period is reimbursed to the employer, not paid to the claimant. - If accrued time the employer must re-credit the worker with the dollar amount of time that equals the workers compensation award. -- Collective bargaining agreement may provide otherwise. v Reduced Earnings. - If the worker has a partial disability (some earning capacity) and returns to work at a wage lower than the average weekly wage, workers compensation rate is 2/3 of the difference between the AWW and the reduced earnings figure. -- Example: Worker with AWW of $900 and partial disability returns to work earning $500. Reduction in earnings is $400 ($900 - $500) and workers compensation rate is $ ($400 x 2/3). 3

4 -- Note that work at reduced earnings may increase workers compensation rate (for example worker with $900 AWW gets $150 per week for mild partial disability when not working, but $ per week when working and earning $500 per week. b. Permanent Disability Benefits. i. Schedule Loss of Use. - The law sets a value for limbs, vision, and hearing in weeks of compensation (for example an arm = 312 weeks). - Schedule loss is the percent of those weeks equal to the percentage loss of function of the member (for example a 10% schedule loss of use of the arm = 31.2 weeks of compensation). - The award is the number of weeks of compensation according to the schedule multiplied by the worker s maximum rate (2/3 of the AWW subject to the maximum rates). - Prior payments of compensation and wages (all wages, not just at the compensation rate) are deducted from the award. Permanent Partial Disability. - Usually for body parts not covered by the schedule loss provisions, such as neck, back, heart attack, lungs, etc. -- Body parts covered by the schedule loss provisions may be classified permanent partial disabilities if they are found to be medically unstable. - Awards are only payable for actual loss of earnings (not working or working at reduced earnings). - Workers injured before March 13, 2007, can potentially be paid for life if found to be permanently disabled. Workers injured after March 13, 2007 are subject to a capped 4

5 number of weeks. The number of weeks depends on the degree of disability (or loss of earning capacity) shown on the following table: 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. - NEW: For workers injured after April 10, 2017, any payments made for temporary disability in excess of 130 weeks count as PPD payments and will be deducted from the PPD cap weeks. i Permanent Total Disability. - Worker must have a permanent loss of all earning capacity. Benefit rate is 2/3 of the AWW (subject to maximum rate) payable weekly, not subject to the caps. - Workers with a medical partial disability may be totally industrially disabled due to vocational factors such as age, education, experience, language barrier, etc. c. Death Benefits i. Death benefits are payable to surviving spouse, children under 18, children under 23 who are enrolled full-time in an accredited academic institution, totally disabled or blind and dependent children of any age. Benefits may also be paid to totally disabled or blind and dependent siblings, grandchildren or parents. 5

6 i iv. If no spouse or dependents, no dependency award of $50,000 is to parents, if none to estate. Death benefit is same as total disability benefit rate. v. Funeral expenses also payable subject to cap (downstate amount = $6,000). d. Medical Treatment - All medical expenses related to the accident are payable by the workers compensation carrier. - Medical Treatment Guidelines govern treatment to the neck, back, knee, shoulder and carpal tunnel syndrome. The MTG preapprove a variety of treatment, but pre-deny all other treatment. Treating physician must file form MG-2 for a variance to provide more or different treatment than the MTG approve. -- But worker is required to use carrier-selected facility for diagnostic tests such as X-ray and MRI. - For non-mtg injuries, no pre-authorization is required for specialized services costing less than $1, Over $1,000 carrier must either approve test or deny based on an IME within 30 days of the day it receives the request. e. Section 32 Settlements. i. Worker may opt to settle some or all of the issues in the case in exchange for a one-time payment by the carrier. 4. Procedure. - Must be carefully considered depending on the individual worker s situation. a. Indexing. i. WCB assembles a claim upon receipt of a FROI, C-3 or C-4. 6

7 i WCB will index only when a C-4 is received. Carrier must respond to indexing by filing either a FROI or SROI either accepting the claim) or contesting the claim. b. Non-hearing resolutions. i. If the claim is not contested, the Board is likely to issue an administrative or a proposed decision without holding a hearing. c. Hearings. - Workers often lose schedule loss and other awards if they are not represented because of these decisions. - Administrative and Proposed decisions usually establish the injured body parts, the AWW, the period of time out of work, and reimbursement to the employer. -- Findings are sometimes wrong or incomplete. - NEW: no decision at all is issued in a no lost time case. i. Scheduled in controverted cases, due to an objection to an administrative or proposed decision, or the request of a party. - Claimants request a hearing using form RFA-1. - Carriers request a hearing using form RFA-2. Following a hearing an EC-23 Notice of Decision is issued. - The date the decision is filed is often a few days after the hearing. i The carrier has 10 days to pay an award (plus 5 days for mailing) from the date the decision is filed. - Late payment penalty is 20% of the money due. iv. The carrier (or the claimant) has 30 days to appeal the decision (plus 5 for mailing) from the date the decision is filed. 7

8 - Lesson: Do not call the carrier about late payment or nonpayment until more than 35 days after the date the decision is filed. It may cause an appeal to avoid a late payment penalty. d. Appeals. i. Appeals go to the Office of Appeals in Albany. - There is no time limit on how long it can take the Office of Appeals to decide a case. - Currently running 6-9 months. 8