The Workers Compensation Minefield:

Transcription

1 All Injury Cases Workers Compensation Social Security Claims The Workers Compensation Minefield: 10 Traps To Avoid

2 All Injury Cases Workers Compensation Social Security Claims The information contained in this booklet can not be substituted for personalized legal representation. It is not legal advice for your claim or situation as every claim presents a unique fact pattern and must be analyzed and prepared, individually, by a qualified attorney.

3 Inside Failing To Report Your Workers Compensation Injury To Your Employer Immediately Failing To File A Formal Workers Compensation Claim With The Workers Compensation Board Giving The Insurance Adjuster A Recorded Statement.. 4 Failing To Understand The Importance Of Monthly Medical Exams And Degree Of Disability Reports Failing To Perform An Adequate Search For Employment Within Your Doctors Restrictions Will Result In Suspension Failing To Apply For Unemployment Benefits As Soon.. As Your Doctor Releases You To Any Type Of Work... 7 Failing To Tell Your Attorney That You Have Returned.. To Any Type Of Work (On Or Off The Books) Failing To Take Advantage Of VESID Retraining Programs Failing To Investigate Possible Entitlement To Social Security Insurance or Social Security Disability Benefits 10 Failing To Submit Mileage And Travel Reimbursement Requests To The Insurance Carrier

4 1. Failing To Report Your Workers Compensation Injury To Your Employer Immediately Workers Compensation Law section 18 requires that a work related accident or injury be reported to your employer within 30 days after the accident. It is always best to file a written report of injury with your employer immediately. You can use an accident report provided by your employer or simply write out a report yourself. Always keep a copy of the accident report so your employer will not be able to deny that it was filed. Often times people are hesitant to file an accident report with their employer because right after the incident they don t realize how serious the injury is. However, what many people mistake as a minor back ache can turn out to be a herniated disc, often requiring surgery. It only takes a few minutes to fill out an accident report and that simple task can mean the difference in winning your case or having it dismissed by a judge. The longer you wait to report the incident, the more likely your employer will contest your case. A contested claim often delays the process for several months. 2 Paul Giannetti Attorney at Law

5 2. Failing To File A Formal Workers Compensation Claim With The Workers Compensation Board Workers Compensation Law section 28 requires that an injured worker file a claim with the Board within 2 years of the injury. A claim is formally filed on Workers Compensation form called a C-3 which can be found at the Boards website. Failure to file your claim within 2 years is almost always fatal to a claim. There are rare instances where failure to file within this timeframe can be waived. One such instance occurs when claimant can prove that an advance payment of compensation was made by the employer or workers compensation insurance carrier with some type of acknowledgement of liability. Even though you have a 2 year statute of limitations to file, you should always file form C-3 immediately after a work related injury in order to preserve your rights to claim benefits. Immediate filing guarantees compliance with both sections 18 and 28 of the Law and makes it much more difficult for your employer to contest your case. 3

6 3. Giving The Insurance Adjustor A Recorded Statement It is a bad idea to give a signed or recorded statement to an insurance company representative. The person asking you the questions is almost always a trained professional insurance representative and the answers that you give may be used against you later on. Why else would they want to record your answers? Many times the questions are not clearly posed. Often times the adjustor will not ask you the necessary follow up questions and will not give you a chance to explain all of the facts and circumstances surrounding your accident. Adjustors may tell you that the statement is needed before payments can begin or that it is a common procedure needed to process your claim. Don t be fooled and don t give a recorded statement. In the end, the recorded words may damage your case. 4 Paul Giannetti Attorney at Law

7 4. Failing To Understand The Importance Of Monthly Medical Exams And Degree Of Disability Reports The single most important thing that you can do to help insure ongoing workers compensation payments is to treat with your doctor every days. This is legally required if you are claiming continued lost wages. Because many doctors do not need or want to evaluate patients this frequently, it is up to you to demand regular day appointments with your physician or chiropractor. The doctor must always conduct a physical examination; he can not simply complete a written form without performing an exam. Failing to do so will likely result in suspension of benefits. It is crucial that your doctor specifically comment on whether you can do any type of work at all. If you are able to do restricted job duties the doctor should comment specifically on what your restrictions are. The medical note or report that indicates your disability status must be signed by your physician, even if the exam is performed by a physicians assistant. Judges will not consider physical therapy reports in determining your entitlement to lost wage benefits. The Board has recently revised their C-4 forms and you should ask your doctor to complete and submit that form promptly. The insurance company will often delay processing of your lost wage payment until the proper medical evidence is received from your doctor. 5

8 5. Failing To Perform An Adequate Search For Employment Within Your Doctors Restrictions Will Result In Suspension One of the most common traps involves failing to search for work once your doctor has released you to do ANY type of work activity. An adequate search for employment can mean submitting and documenting job applications and employment inquiries. All judges want to see a legitimate search for light work once your doctor has recommended restricted duty. It is often very difficult to find work when you are under medical restrictions. The law does not require that you find a job, it requires that you perform a legitimate SEARCH for work. Judges want to see that you are trying to find light work. Failure to meet your obligation to seek restricted work will likely result in suspension of lost wage benefits. Many claimants have no idea that this is required and get trapped when the insurance carriers attorneys raise this issue before the Law Judge during a hearing. This obligation to look for work continues as long as you are claiming partial disability benefits. Remember, even if your employer has no light duty work available you must perform an extensive search for jobs within the limits recommended by your doctor. 6 Paul Giannetti Attorney at Law

9 6.Failing To Apply For Unemployment Benefits As Soon As Your Doctor Releases You To Any Type Of Work As long as you are not collecting total disability benefits and there is a medical report indicating that you are partially disabled, you should apply for unemployment benefits. You may qualify for both partial disability payments from Workers Compensation and partial unemployment payments. Many claimants fail to apply for unemployment in this circumstance because they do not know that they may collect both types of benefits. Always be sure to inform unemployment that you are receiving partial disability from the Workers Compensation. The Unemployment Office will often ask you to provide them with Workers Compensation Form C-8 which is filed by the compensation insurance company and documents the amount of compensation payments that have been made and the time periods covered. 7

10 7. Failing To Tell Your Attorney That You Have Returned To Any Type Of Work (On Or Off The Books) Failing to notify your attorney or the insurance carrier that you have returned to work, even if it is for little or no pay, can have disastrous consequences for your claim. It can even result in criminal charges and disqualification from benefits. When in doubt ALWAYS notify your attorney of any activates that might be construed as work. Innocent activities such as selling a few items on ebay can become the subject of workers compensation fraud allegations. Insurance companies often hire investigators to perform surveillance on injured workers. Those investigators can obtain videotape which is then presented to the judge who ultimately determines if the activity depicted is a violation of the workers compensation fraud statute. Even physical activities which are performed at home, not for any pay, can lead to fraud allegations if those activities are inconsistent with your complaints to your doctor or your degree of disability as determined by a law judge. 8 Paul Giannetti Attorney at Law

11 8. Failing To Take Advantage Of VESID Retraining Programs VESID is a state run program that can be useful for many disabled people. VESID provides vocational retraining services which can help the disabled worker learn the skills needed to perform lighter work. VESID identifies each applicants strengths and interests and helps injured worker take steps to become qualified for work which is suitable to their present limitations. After retraining an applicant, VESID helps in the search for employment. Many Judges believe that it is very important for disabled workers to be involved with the VESID program because it shows that the worker is motivated to rehabilitate himself and to return to work. VESID services are not available until the injured worker has been released to perform some type of light or restricted work. VESID can be reached by calling

12 9. Failing To Investigate Possible Entitlement To Social Security Insurance or Social Security Disability Benefits Many injury victims are unaware that they may qualify for social security benefits and never actually apply for them. It is possible to receive both workers compensation and social security benefits if you qualify for both however, there are rules may limit your total combined benefit amount. Social Security is a federal program and the legal standards are different from New York States Workers Compensation laws. Often times the same medical records and reports can be used to help secure benefits from both programs. While most people are initially denied social security benefits it is always best to file your application and if denied, contact an experienced attorney immediately as an appeal must be filed within sixty days after denial. 10 Paul Giannetti Attorney at Law

13 10. Failing To Submit Mileage And Travel Reimbursement Requests To The Insurance Carrier New York State Workers Compensation Law section 13 allows for reimbursements for certain out of pocket expenses incurred by claimants. These include mileage reimbursement for travel to medical providers as well as payments made for medications or co-pays. It is important to document the date of travel, name of provider and round trip mileage in order for the insurance carrier to process payment. Mileage reimbursement rates are periodically updated by the Compensation Board. Submissions for reimbursement often take many months to process but if payment is refused or simply ignored by the carrier a hearing may be requested and held to address this issue. Many claimants are unaware of their rights to recoup these costs and never request reimbursement. 11

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