Monthly Archives: July 2012

stopwatch

Why Wait? A Case Study…

Today’s post comes from guest author Kit Case from Causey Law Firm.

I reviewed a workers’ compensation claim for a potential client nine months ago.  At the time, I told him of several items that I saw as upcoming issues in his case and shared my opinion about why it would be important for us to start clearing those issues off the deck sooner rather than later.  Would he be found employable with no services or would he receive just a bit of training to allow him to continue working in his field as a welder but in a lighter-duty capacity?  Would the onset of depression be addressed under the claim and taken into consideration when making employability decisions?  Would his level of permanent impairment be under-rated through the typical Independent Medical Evaluation (IME) process or would his surgeon be willing to provide a rating that more accurately reflects his limitations?  I shared my concerns about his case, explained the process I would recommend for addressing these concerns and discussed the fees and costs to be expected.  He indicated he wanted to go forward with representation.

I did not hear from him again, until yesterday.  He left me a message asking for help with his claim.  I looked at the case this morning before returning his call.  He has been found to be employable with no additional retraining, so he will likely not be able to continue with his favored career but, instead, can look forward to his new line of work as a small parts assembler.  He underwent an IME that conservatively rated his level of permanent impairment and approved the job analysis for small parts assembly.  His attending physician signed the form letter to indicate concurrence with the IME results and, on this basis, the Claims Manager has found him employable and is closing the claim.  What about the depression?  Not addressed by the IME, so the Claims Manager is construing the attending physician’s signature on the concurrence form letter to mean that he is also not contending that depression is an issue, so she is denying this condition under the claim.

I know there are two sides to every argument, and I know that an employer representative would look at this same fact pattern and see a job well done, but I am a claimant’s advocate, so I share my thoughts from only that perspective.  I see a situation where I now have a 15-day deadline for filing a dispute with the Vocational Dispute Resolution Office if I want to argue that Continue reading

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Social Security Statements – Now Available Online (And ONLY Online!)

Today’s post comes from guest author Lauri Watkins from Causey Law Firm.

Many people don’t realize that Social Security stopped mailing out annual Statements in 2011, but indeed they did. Citing budget concerns and a little-used ‘emergency’ ruling stating that it’s okay for the Social Security Administration to stop fulfilling one of its legally-mandated functions if doing so could potentially bankrupt the agency or impair its ability to fulfill its primary function, Social Security stopped sending out individual Social Security Statements. In fact, they also ceased fulfilling requests for statements received by mail or telephone, and disabled their online ordering service. The only way you could obtain your Statement was to go down to your local Social Security Office and tell them you had an ‘urgent need’ for the information!

Now, Social Security has (finally!) rolled out online (and IMMEDIATE) access to your Statement, including your earnings history, estimated benefit amounts, and eligibility information. And fortunately, they have made it incredibly easy!

All you need is:

  • your own personal information (full name, Social Security number, date of birth, mailing address, phone number)
  • and working email address.

Start at Social Security’s website. On the left-hand menu, go to ‘Get Your Social Security Statement Online’, and follow the prompts. Social Security uses a program called Experian to verify your personal data, so be prepared to answer some interesting multiple-choice questions, including

  • phone numbers and addresses that you may have used in the past,
  • dates that you opened specific credit accounts,
  • or where you send your mortgage payment.

You can also choose an added layer of security, by asking Social Security to send a text message to your mobile device anytime you log in to your account.

Note, however, you are actually setting up a ‘my Social Security’ account – - the same type of account that people RECEIVING benefits have – - not just accessing a Statement. Please be prepared to keep track of your login information, as you not only may need to access your Statement again over the years as new earnings are posted, but you may also one day need this account to set up your own Medicare, Retirement, or Disability benefits. Keep this login information in a safe and secure location, and do not share it with others to maintain your security.

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When Is It Time To See The Doctor?

Today’s post comes from guest author Matthew Funk from Pasternack Tilker Ziegler Walsh Stanton & Romano.

Putting off seeing medical care is commonplace for chronic medical conditions. Under the Workers’ Compensation Law there is no timeframe for a claimant to see a medical provider. There is nothing in the law that requires a worker to see his doctor within 24 hours or 30 days of the accident. However, the sooner an injured worker sees a doctor, the better, especially if that worker is losing time from work because of the accident. A Law Judge will only grant awards for lost time that is backed up by medical reports.

That means if a member is out of work for three weeks before they go to a doctor, it is possible that Workers’ Compensation benefits might not be paid during that time period. In order for a claim to be successful in this situation the report that the doctor submits must have several things on it:

  • It must contain the history of the accident,
  • diagnoses a condition,
  • explain how the condition is related to the on the job incident, and;
  • comment on disability.

Disability is an essential component that must be on the reports. Without an opinion on disability, there is no evidence to dispute what the carrier doctors submit to the NY Workers’ Compensation Board.

Physicians are required to submit to the Workers’ Compensation Board (WCB) complete and thorough reports. The sooner that you see a doctor and have a report sent to the WCB the better for you and your case.

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A 10 Step Guide To Your Independent Medical Examination

Follow these steps to ensure you get the most out of your independent medical examination.

You will reach the stage in your worker’s compensation claim where you will be examined by a doctor of your choice. This exam may generate the most important evidence in your claim. I strongly recommend that you do the following:

  1. Needless to say, always tell the truth. Never exaggerate or overstate your symptoms. On the other hand, do not understate your symptoms, either. This is your one chance to tell it all.
  2. Be sure to write down the time and place of your independent medical examination (IME, for short). It is important that you make it to this appointment on time.
  3. Before going to the IME, spend an hour or two writing down the history of your injury, your current complaints based on the injury, what things aggravate your injury, and what care and treatment you have been given for your injury. You will have only a limited amount of time to describe these things to the IME doctor. It is important that you have a well-organized statement to give to the doctor. Therefore, you should take your written statement to the IME and use it to make sure that you tell the doctor a complete statement of these things. Then, save the written statement and return it to me. If the things in your statement do not end up in the IME doctor’s record, this may be useful in the future.
  4. Remember, although this is a doctor of our choosing who will be fair and impartial. The doctor is not in our pocket. He (or she) will be using the AMA Guides to the Evaluation of Permanent Impairment which has certain “tests” to determine if a patient is faking or exaggerating their symptoms.
  5. The best way to go into the IME is to be alert, relaxed and polite. The IME is a fairly routine process. You are not being singled out. Don’t be defensive.
  6. A major part of the IME will consist of you answering<!–more–> written or oral questions or giving a statement to the doctor. Answer all questions politely and truthfully. Don’t try to fake anything or unreasonably exaggerate any problem. Any experienced doctor will quickly discover this and it could ruin your case. Take your time in answering questions to make sure that you answer each question clearly and truthfully. Answer only the questions that are asked and don’t ramble on.
  7. You will probably be asked to describe your pain. Paint is often difficult to describe. You might find it easiest to explain activities that worsen your pain. You should have a list of everyday activities that increase your pain.
  8. When talking to the physician try to be as accurate as possible. Explain when and how you were hurt. Tell him your current symptoms in as neutral a way as possible.
  9. Do not complain bitterly about your previous treatment. Don’t say things about the company doctor being in cahoots with the employer. The IME doctor’s evaluation won’t be made better by complaints.
  10. After the IME, I am interested in knowing just what went on in the examination. Therefore, after the examination, take at least one half-hour to write down as much as you can remember of what the doctor said, what you answered, what the doctor did, and what, if anything, was dictated into a recorder. Note as accurately as possible the time that you arrived at the office, the time that you were placed in the examining room, when the doctor entered the room, and when the doctor left the room. It may be important to have an exact record of the time the doctor spent with you in the examination room.

If you follow these directions, you will provide the IME doctor with an accurate description of your work-injury condition. This will lead to a clear and reliable IME report that can held your claim. Of course, check with your attorney for more suggestions.

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Nannies, Baby-Sitters, and Comp Coverage: Yes, Wisconsin Still Has “Domestic Servants”

Today’s post comes from guest author Charlie Domer from The Domer Law Firm.

Today’s post has been co-authored with Nathan Hammons.

Most families in Wisconsin have hired a baby-sitter or nanny to watch their children. The pay generally is in cash for a defined period of time. Does the situation create an employer-employee relationship, entitling an injured baby-sitter to worker’s compensation benefits?

Under the Worker’s Compensation Act, most employers in the state are required to provide worker’s compensation coverage for their employees. Employers of ‘domestic servants’, however, are completely exempt from the requirement. (Wis. Stat. §102.07(4)(a)1.) Unfortunately, neither the Act or Wisconsin courts provide a definition. So, what exactly is a domestic servant?

Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

The name ‘domestic servant’ is antiquated. It brings up old images of butlers, maids, and other people toiling away in the mansions of royalty and the wealthy. Indeed, search Wikipedia for ‘domestic servant’ and you’ll be directed to ‘domestic worker’, the modern term and one that doesn’t imply inequality in the workplace. Without citation or authority, a Department publication indicated that it has “consistently ruled that persons hired in a private home to perform general household services such as nanny, baby-sitting, cooking, cleaning, laundering, gardening, yard and maintenance work and other duties commonly associated with the meaning of domestic servant, meet the definition of domestic servant intended by the Act.” Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

Consequently, nannies Continue reading

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NFL Concussion Suits Barred by “Exclusive Remedy”? Why can’t I sue my employer?

Today’s post comes to us from Tom Domer from the Domer Law Firm.

We get calls every day from angry injured workers who want to sue their employer for negligence. It could be an employer removing a guard on a machine, a foreman ignoring a safety rule, or an injury caused by an employer’s failure to train an employee. Many employees are genuinely and bitterly disappointed when we explain a worker cannot sue his employer for negligence and that his only “exclusive” remedy is through worker’s compensation. In liability suits filed by hundreds of former pro football players who suffer from concussion-related injuries, the players claim the league negligently mislead them about the dangers of concussions. Attorneys for the injured players indicate it is likely the NFL will argue that football players should be covered exclusively by worker’s compensation.

The deal cut by employers and workers in Wisconsin in 1911 still stands: Employers give up the right to common law defenses (contributory and co-employee negligence, assumption of risk) for a fixed schedule of benefits; employees give up the right to sue their employer in tort (and to recover tort-like damages) in return for worker’s compensation benefits. No matter how nefarious the employer or how egregious the employer’s behavior (i.e., removing the guard to increase machine speed, etc.), the Exclusive Remedy provision applies.

However, claims against third parties (someone other than the employer) are still available to workers if the injury was caused by the negligence of someone other than the employer. In the NFL claims, for example, a helmet manufacturer Riddell is also a named party. Since Riddell was not an employer, that tort suit against the third party should be able to proceed despite the exclusive remedy of worker’s compensation. Most States, like Wisconsin, have a formula for paying back worker’s compensation if the employee succeeds in recovering against the third party.

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NIOSH Acts To Prevent Lifting Injuries For Home Healthcare Workers

Today’s post comes to us from our colleague Jon Gelman from New Jersey.

The National Institute for Occupational Health and Safety (NIOSH has published educational information to prevent musculoskeletal injuries at work. Injuries caused by ergonomic factors have been a major issue of the Federal government for decades and have been the basis for repetitive trauma motion claims for workers’ compensation benefits. While the Clinton-Democratic administration had advocated strongly for ergonomic regulations, the Bush-Republican administration took action to reject the reporting of ergonomic injuries to OSHA.

A work-related musculoskeletal disorder is an injury of the muscles, tendons, ligaments, nerves, joints, cartilage, bones, or blood vessels in the arms, legs, head, neck, or back that is caused or aggravated by work tasks such as lifting, pushing, and pulling. Symptoms include pain, stiffness, swelling, numbness, and tingling.

Lifting and moving clients create a high risk for back injury and other musculoskeletal disorders for home healthcare workers. Continue reading

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Emergency Medical Treatment Does Not Need To Be Authorized

Today’s post comes to us from Matthew Funk at Pasternack Tilker Ziegler Walsh Stanton & Romano

When an injured worker needs emergency medical care, prior authorization isn’t always possible and obtaining it does not bar a workers’ compensation claim. When a worker is hurt at work and is rushed to the emergency room for treatment, there often isn’t enough time to seek authorization from an insurance company and to obtain a claim number.

At the time of the treatment, if possible, the injured worker should let the hospital and medical provider know that the injury occurred at work and the exact details of all his or her injuries. This is sometimes an effort since emergency staff are rushed and understaffed. After the emergency care is provided the worker should immediately seek the guidance of an attorney to assist in filing a claim and obtaining reimbursement for the medical care.

At the time of the treatment, if possible, the injured worker should let the hospital and medical provider know that the injury occurred at work and the exact details of all his or her injuries. 

The law provides that the cost of Continue reading