2011 Overview of New York Workers Compensation the basics, what has changed and what people an expecdt

1. The Great Trade Off New York State Workers Compensation: An Overview By Brian M. Mittman, Esq. bmittman@markhofflaw.com © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 1

2. A Social Pact Employees - guaranteed medical care and monetary benefits - they don’t have to sue and can focus on getting better and back to work Employers - won’t be sued, will improve safety in the work place, will have clear idea of their costs (insurance versus judgment) © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 2

3. The Basics of a Claim EXCLUSIVE REMEDY WCL Sec. 11 (the no fault provision) EMPLOYER EMPLOYEE RELATIONSHIP Sec. 2 & 3 (if you look like, smell like, taste like and employee you are one) A.N.C.R: The Building Blocks of a Claim ACCIDENT WCL Sec. 10 NOTICE WCL Sec. 17 CAUSAL RELATIONSHIP WCL Sec 10 & 13 © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 3

4. ACCIDENT WCL Sec. 10 OUT OF AND IN THE COURSE OF EMPLOYMENT ACCIDENT OCCUPATIONAL DISEASE Whether you have had an accident is a question of fact for the trier of fact (the WCL Judge) - incidents such as horseplay and heart attacks have been found compensable © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 4

5. NOTICE WCL Sec. 17 TIMELINESS - should be in writing within 30 days, but depending on the “facts” oral or imputed knowledge is often enough PREJUDICE - if employer has not been prejudiced by failure to provide notice then it will not be an issue © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 5

6. CAUSAL RELATIONSHIP(How medical reports are supposed to be created and by home generally goverened by Sections 13) THE DIAGNOSIS MUST MATCH THE INJURY: The three most important parts of a claim: Medical Medical Medical IMPORTANCE OF MEDICAL EVIDENCE - there has to be a link! © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 6

7. AVERAGE WEEKLY WAGE(WCL SEC. 14) Once you have shown the building blocks of: Employer-employee relationship Accident Notice Causal relationship Then it is time to figure out the benefits - for monetary benefits you must know what the injured worker was making in order to figure out what benefit the worker will receive. © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 7

8. BENEFITS WEEKLY INDEMNITY (2/3 AWW x Lost Time and degree of disability) MEDICAL CARE (What do you need and the new medical treatment guidelines) DEATH BENEFIT (who collects and how much) © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 8

9. BENEFITS (ctd) SCHEDULE LOSS OF USE (Permanent injury to an extremity or listed body part) REDUCED EARNINGS (Back to work but earning less because of the injury) PERMANENT PARTIAL DISABILITY (Its not going away, entitlement to weekly benefits and caps) PERMANENT TOTAL DISABILITY (the worst) © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 9

10. What does an injured worker get paid? Rates of Compensation (Maximum) 7/1/1992 to 7/1/2007 $400 maximum 7/1/2007 to 7/1/2008 $500 maximum 7/1/2008 to 7/1/2009 $550 maximum 7/1/2009 to 7/1/2010 $600 maximum 7/1/2010 to 7/1/2011 $739.83 maximum (rates from 7/1/2010 into the future will be 2/3rds of the State Average Weekly Wage) © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 10

11. Wage Replacement Example Construction worker earns $1450.00 a week. AWW = 1450.00 X 2/3 = $966.67 Workers was injured on 8/1/2010 the maximum rate was $739.83 per week so the benefit rate will be $739.83 even though 2/3rds of the AWW is more. © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 11

12. HEARING PROCESS SECTION 20 - RIGHT TO A HEARING Although designed to be simple and no need for attorney, the current WC process dependent on filing various forms, reviewing administrative decisions and rulings, appearing at actual hearings before a tribunal, taking part in ‘quasi’-trials and appeals © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 12

13. HEARING PROCESS The best way to describe the hearing process is to contrast it with the civil justice system. When you are injured and you sue someone your lawyer will build your case piece by piece to prepare for the ultimate day - your day in court. In the world of Workers Compensation there is not necessarily a day in court. © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 13

14. HEARING PROCESS WC is a journey where you have many stops along the way, some set backs and some advancement. The ultimate goal is not one day in court at the end of the case, but rather attempting to get as healthy as possible, back to work and the benefits your entitld to along the way and if any, at the end. During the course of an injured workers claim you may have a series of hearings, mini trials, depositions and administrative reviews that will determine items such as degree of disability, amount of benefits, right to certain treatment and so forth. © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 14

15. Types of hearings and decisions Administrative decisions Proposed decisions Conciliation hearings Regular hearings Trials - lay testimony Depositions of medical experts The Medical Treatment Guidelines MG-2 Process! © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 15

16. Types of decisions Notice of decision from regular hearing or proposed decision from conciliation and administrative decision Notice of Proposed Decision and Orders of the Chair and Variance Approvals and other nonsense Reserved decision Memorandum of board panel decision © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 16

17. Settlements Schedule loss of use for extremities © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 17

18. Settlements Permanent Partial Disability - the great unknown. Prior to March 14, 2007 if you had a neck, back or other type of injury that was not “schedulable” and you could not return to work, or returned at reduced earnings then you could be found to have a permanent partial disability and entitlement to ongoing weekly payments. © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 18

19. Settlements (ctd) Currently, if you have the same PPD type situation then you can be found PPD, but new law says we must determine your loss of wage earning capacity, and that will limit or cap the amount of future indemnity (not medical) benefits you will be entitled to. © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 19

20. THE 2007 “BENEFITS CAPS” Loss of Wage Earning Capacity - under the 2007 Reforms, anyone found permanently partially disabled for accidents after March 14, 2007 will be subject to a limited weekly beneffit unless they have sustained greater than an 80% loss of wage earning capacity. The number of weeks an injured worker is entitled to is dependent upon the injured workers Loss of Wage Earning Capacity. © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 20

21. Loss of Wage Earning Capacity Compensation under this paragraph shall be payable during continuance of such permanent partial disability, but subject to reconsideration…all compensation payable under this paragraph shall not exceed”: • 525 weeks for loss of wage earning capacity of greater than 95% (10.10 years) • 500 weeks in cases in which the loss of wage earning capacity is greater than 90% but not more than 95% (9.62 years) • 475 weeks in cases in which the loss of wage earning capacity is greater than 86% but not more than 90% (9.13 years) • 450 weeks in cases in which the loss of wage earning capacity is greater than 81% but not more than 85% (8.65 years) • 425 weeks in cases in which the loss of wage earning capacity is greater than 76% but not more than 80% (8.27 years) • 400 weeks in cases in which the loss of wage earning capacity is greater than 71% but not more than 75% (7.69 years) • © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 21

22. Loss of Wage Earning Capacity (ctd) 375 weeks in cases in which the loss of wage earning capacity is greater than 61% but not more than 70% (7.21 years) • 350 weeks in cases in which the loss of wage earning capacity is greater than 51% but not more than 60% (6.73 years) • 300 weeks in cases in which the loss of wage earning capacity is greater than 41% but not more than 50% (5.77 years) • 275 weeks in cases in which the loss of wage earning capacity is greater than 31% but not more than 40% (5.29 years) • 250 weeks in cases in which the loss of wage earning capacity is greater than 16% but not more than 30% (4.81 years) • 225 weeks in cases in which the loss of wage earning capacity is 15% or less (4.33 years) © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 22

23. Loss of Wage Earning Capacity How is it determined - good question. As noted before, medical evidence drives everything in workers compensaiton. As of this lecture the Medical Guidelines Task Force charged by Insurance Department with coming up with medical guidelines, while working diligently, has yet to release its findings, over two years since signing of the law. © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 23

24. ATTORNEY FEES Modified Contingent Please Give Me a Fee Rule Fees must be approved by Law Judge Vary by work done, amount of benefit moving and so forth Cannot charge client fee and cannot charge expenses Currently, if you have the same PPD type situation then you can be found PPD, but new law says we must determine your loss of wage earning capacity, and that will limit or cap the amount of future indemnity (not medical) benefits you will be entitled to. © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 24

25. Other Issues Social Security Disability - if paid into system, worked 5/10 years, severe medical condition and out of work or expect to be out at least one year then can apply. SSDB covers more than just your work injury, but depending on your benefit rate, SSDB could be offset by what you receive in WC (the 80% rule) © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 25

26. NY State/City Retirement Disability Private or Group Long Term Disability Lawsuit Right to lien and credit Settle properly or give up future rights © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 26

27. Return to Work Incentives Return to Work Programs Reduced Earnings Discrimination, ADA and EEOC © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 27

28. Useful Resources www.wcb.state.ny.us www.nysif.com www.markhofflaw.com Order a Free New York State Workers Compensation Consumer Guide at www.hurtonthejobfeebook.com © Markhoff & Mittman, PC, 2011 www.markhofflaw.com 28