Category Archives: New York

Getting Reimbursement for Workers' Compensation Liens in New York.

The workers’ compensation law provides two separate ways for a compensation carrier to obtain reimbursement from the proceeds of a claimant’s third-party settlement:

  1. Assert a lien against the recovery for the amount of benefits already disbursed by the carrier. N.Y. Work. Comp. Law § 29(1); or
  2. Offset the claimant’s future compensation benefits by the amount of the claimant’s net recovery in the third-party action. N.Y. Work. Comp. Law § 29(4).

Asserting a Lien for Past Benefits Conferred

The workers compensation carrier “shall have a lien on the proceeds of any recovery from” a third party settlement less reasonable and necessary expenditures, such as attorney’s fees. N.Y. Work. Comp. Law § 29(1). The employee may apply on notice to the lienor to the court for an order apportioning reasonable and necessary expenditures including attorneys fees. The court shall apportion such expenditures equitably between the employee and the lienor. Id.

Offsetting Future Compensation Benefits

The carrier must affirmatively preserve its right to offsets, or it may involuntarily waive such right. See Hilton v. Truss Systems, Inc., 82 A.D.2d 711, 444 N.Y.S.2d 229 (3d Dep’t 1981), order aff’d, 56 N.Y.2d 877, 453 N.Y.S.2d 428, 438 N.E.2d 1143 (1982). The claimant’s third-party settlement recovery less the carrier’s lien is credited by the carrier against future compensation payments. The net amount the claimant receives offsets future compensation payments, and no future payments will be made until the credit is exhausted. The carrier may waive the lien or the offset. N.Y. Work. Comp. Law § 29.

New York: Calculating Wages for Concurrent Employment – Post reform.

The Appellate Division issued a decision last week in a case where a post-2007 claimant had average weekly wages of $3.56 per week in the primary employment (the employment where she sustained the injury). The claimant had another job – a part time position at a retail clothing store, where she earned an average weekly wage of $77.13.

Added together, the Board found a wage of $80.69 per week. The Law Judge issued awards at a temporary total rate of $80.69 per week. The employer appealed – arguing that the award should have been based on the primary wage only – $3.56 per week – because reimbursement for compensation paid for additional amount attributable to the concurrent employment are no longer reimbursable from the Special Disability Fund (as per Section 14(6) of the WCL).

In this case the Appellate Panel ruled in favor of the claimant, finding that there was concurrent employment pursuant to Workers' Compensation Law § 14 (6) and that claimant's benefits were properly calculated based upon both employments.  Despite the weekly wage in the primary employment being nly $3.56 per week, the claimant got the benefit of a much higher rate based on both employments.

Case: Hazel Hope v. Warren County Board of Elections, 512524 (App. Div. Decided Nov. 23, 2011). 

Have a question about calculating wages or rates in a case where there is concurrent employment? Contact Greg Lois.

Board Reveals Permanent Disability Guidelines Effective January 2012.

New York’s 2007 reforms promised employers relief from the runaway costs of an out-of-control workers’ compensation system by capping indemnity benefit weeks, instituting a system of “preauthorized” treatment to reduce medical costs, and by reviewing the failed disability duration guidelines which established the standards for awards of permanent disability in the state since 1996.

Since 2007, the Board has adopted Medical Treatment Guidelines and the new caps on awards (can not exceed 600 weeks for less-than-total disability) are in effect.

As of January 1, 2012 the “New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity” (2012 Guidelines”) will apply to all cases where there has been no medical opinion finding permanent impairment with a rating based on the 1996 Guidelines (now deprecated). On January 1, 2012 these new Guidelines will apply to all cases where there has not been an estimate of permanent impairment under the old (1996) Guidelines.

Under the New York Workers’ Compensation Law, there are four types of benefits available to an injured worker:

  1. Medical treatment. Emergency and follow-up treatment for their injuries.
  2. Wage compensation for earnings lost while they recover from the immediate effects of their injury.
    • This wage compensation is called “temporary total” with the claimant is 100% totally temporarily disabled (cannot work at all) OR
    • “Partial temporary” when the claimant can do some work – but isn’t earning their prior level of wages (usually because they can only work part time or have to work at a job that pays less than the work they were doing at the time of the accident). This is calculated as 2/3rds of the difference between old wages and post-accident wages.
  3. Death benefits payable to the dependents (usually wife and kids) of a worker killed during the course of employment. This is 2/3rds of their average weekly wage at the time of injury, subject to maximums and minimums, to the wife for life.
  4. “Permanency” benefits – these are payments of money to injured worker to compensate them for the “permanent effects” of an accident. As of January 1, 2012 the “New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity” (2012 Guidelines”) will apply to all cases where there has been no medical opinion finding permanent impairment with a rating based on the 1996 Guidelines (now deprecated).

Most settlements resolve the amount of “permanent disability” that a claimant is due – and the new Guidelines directly address how these disabilities are to be compensated.

Valuing Workers’ Compensation for Injuries in New York.

The happening of an injury is not enough (by itself) to warrant the payment of an award. Awards are issued for residual permanent impairment. If the claimant is due an award, the amount of money the claimant receives will depend on the nature and degree of the loss. The Workers’ Compensation Law breaks down the amount payable into two broad categories: “scheduled losses” and “unscheduled losses.”

Maximum Medical Improvement.

Before scheduled or non-schedule (classification) permanent disabilities can be determined, there must be a finding by a medical professional that the injured worker has reached maximum medical improvement (“MMI”). According to the 2012 Guidelines:

A finding of maximum medical improvement is based on a medical judgment that (a) the claimant has recovered from the work related injury to the greatest extent that is expected or (b) no further improvements in his or her condition is reasonably expected. The need for palliative care or symptomatic treatment does not preclude a finding of MMI. In cases that do not involve surgery or fractures, MMI cannot be determined prior to six months from the date of injury or disablement, unless otherwise agreed to by the parties.

Awards for permanent disability.

Some specific injuries, such as loss of an extremity, vision loss, hearing loss, or facial disfigurement have scheduled or set payment amounts. Other losses, called unscheduled or classifications compensate the injured worker for injuries which are not on the schedule (such as a spinal injury, disc herniation, a cardiac injury, abdominal injury, etc.) but which cause continuing partial or total disability in the claimant. These unscheduled losses are classified into permanent partial disability and permanent total disability.

The statute envisions two types of permanent disability compensation:

Scheduled Loss of Use.

“Scheduled loss of use” relates to injuries to specific, enumerated body parts which are listed on a “scheduled loss of use chart” (found in this book). This is a fixed amount of compensation for injuries to fingers, toes, hands, feet, arms, ankles, knees, etc.  In other words, the Workers Compensation Law states that if you lose your thumb in accident, you get a fixed benefit – a number of weeks of compensation times your weekly rate – which is determined by the injury.

Classification.

The second type of permanent disability award is called a “classified award” or sometimes it is called a “classification.” This term “classification” doesn’t really mean anything – it just means the claimant sustained injury to a body part which is not specifically described on the “scheduled loss of use chart.” For example, injuries to the head, neck, and low back are considered “classifiable” injuries – and they are compensated in terms of a fixed number of weeks – up to 600 weeks.

Example – Scheduled Loss of Use.

If an injured worker made $200 per week and lost her thumb, according to the Scheduled Loss of Use chart, she would be entitled to 100% loss of the thumb – 75 weeks of compensation. This would be paid at a rate equivalent to 2/3rds (66.6%) of her average weekly wage – or approximately $133.34 per week (two thirds of $200 per week). So in this example, the loss of the thumb would give rise to an award of $10,000 for permanent disability. The other benefit the injured worker would receive is medical treatment for life in regards to the lost thumb.

Example – Injury Giving rise to Classification.

If an injured worker earned $200 per week and sustained an injury to her low back, such an injury (if permanent) could give rise to a classification award. Any amounts already paid to me – the claimant – during the claim for my lost wages – for example, if I lost a few weeks from work – would be subtracted from the overall award.

What a treating doctor must do.

Often, there is not a simple agreement between the parties as to the extent and nature of the claimant’s residual permanent disability. In such a case, we will often have a trial. During the pendency of the trial both parties have the opportunity to present their own witnesses.

A treating physician must provide the Board with medical evidence that the Workers’ Compensation Law Judge will consider when making his or her legal determination about disability. The health provider can make a recommendation about whether or not the claimant can return to his or her regular employment. If the medical provider states that the claimant can not return to his previous employment, the medical provider should states what medical limitations exist.

The 2012 Guidelines envision that the treating physician’s evaluation of medical impairment should include the relevant basis for the impairment classification, including the relevant history, physical findings, and diagnostic test results and be provided on Form C-4.3.

The C-4.3 evaluation of impairment report must include the following:

  1. That the injury occurred on-the-job.
  2. Functional abilities and restrictions (if any). The physician should measure the claimant’s ability to perform a range of functional abilities. These should include general abilities (lifting, carrying, pushing, etc.) but also general and specific tolerances (climbing, bending, kneeling, stooping, walking, standing).
  3. Exertional ability (using standard classification system – ranging from “Sedentary” to “Very Heavy.”)
  4. Psychiatric Limitations.
  5. Other Limitations, which would include the impact of medications on ability to operate machinery, for example.

Examining Doctors.

The Workers’ Compensation Law presumes that the medical records and reports from both treating physicians and IME doctors will be “adequate, complete, and objective.” In reality, medical reports often contain subjective impressions, such as a treating doctor’s feeling that a claimant can not return to work based on non-medical factors such as age, education, occupation, etc.

Evaluating doctors are expected to produce reports which measure, to a reasonable degree of accuracy and uniformity, the nature and extent of the impairment experienced by the individual claimant. This assessment should be based upon the loss of structural integrity, pathology, and pain substantiated through physical (clinical) findings.

In order to prepare a report on permanent impairment, the examining physician should do the following:

  1. Review the Guidelines.
  2. Review the medical records.
  3. Perform a thorough history and physical examination and recount the relevant medical history, examination findings and appropriate test results.
  4. State the work related medical diagnosis(es) based upon the relevant medical history, examination and test results.
  5. Identify the affected body part or system (include Chapter and Table No. for non-schedule disabilities).
  6. Follow the recommendations to establish a level of impairment.
  7. For a non-schedule disability, evaluate the impact of the impairment(s) on claimant’s functional and exertional abilities.

What the Workers’ Compensation Law Judge does.

In disputed cases, the Law Judge considers the employer’s defenses and makes a determination regarding accident, notice, and causal relationship. In practice, most cases do not involve disputes about whether or not the accident took place, except for occupational claims, in which there may be serious issues of notice and causal connection. The Law Judge must be made aware of any pre-existing conditions the claimant had, prior claims and awards, and any subsequent injuries or claims.

Non-schedule/Classification Awards Post-Reform.

For dates of injury post March 13, 2007, there are two formula to be applied to distinct classes of injured worker: those workers who have returned to work (in some capacity) and those who have not.

The Working Post-reform Claimant.

Current wage information will be available for the working claimant.

The degree of disability and monetary award will be based entirely on the Loss of Wage Earning Capacity (LWEC). This is simple to calculate:

AWW less Current Earnings / AWW * 100% = LWEC %

Calculating the weekly benefits due a working claimant would follow the following:

Weekly Benefit Rate – 2/3 * LWEC * Current Wages

Example.

Presume a pre-injury wage of $500 per week. After return-to-work, the claimant now earns $350 per week. The calculation would be:

LWEC = (($500 – $350)/$500))*100% = 30%

Weekly Benefit Rate = ((2/3) * .30 * 350 = $70

Under this example, the claimant would receive a weekly benefit of $70 per week, which added to her earned wages ($350) give a total income of $420 per week.

Using the chart (“LWEC and Maximum PPD Benefit”), this benefit would be payable for 250 weeks.

LWEC and Maximum PPD Benefit (Chart).

LWEC

The Non-working Post-reform Claimant.

If the claimant is not working, the Judge must establish a loss of wage earning capacity based on the facts in the case, considering medical evidence and vocational factors. The Judge is not expected to presume that the wage earning capacity of the non-working claimant is zero.

The calculation for the non-working claimant is as follows:

Weekly Benefit Rate – 2/3 * LWEC * AWW (at time of loss)

Unlike the working claimant, there is no current earnings to base LWEC on. Therefore, loss of wage earning capacity (“LWEC”) is based on three types of input:

  1. Medical impairment. The medical impairment evaluation must be performed by a medical professional. The medical professional should apply the evaluation criteria laid out by the Board in the 2012 Guidelines. (For more on this topic, see Chapter 2: IMEs). The physician must document the injured worker’s diagnoses and impairment ranking by body part or system and state the medical basis for the impairment classification, including reference to the relevant history, physical findings, and diagnostic test results.
  2. Functional ability/loss. The medical assessment of the residual functional abilities and losses is also considered by the Judge in assessing loss of wage earning capacity in the non-working claimant. The functional evaluation (recorded on Form C-4.3) should include the following:
    1. Functional ability/restrictions: On examination, the physician should measure the injured worker’s performance and restrictions across a range of functional abilities, including dynamic abilities (lifting, carrying, pushing, pulling and grasping), general tolerances (walking, sitting and standing) and specific tolerances (climbing, bending/stooping, kneeling, and reaching). These abilities and restrictions, including specific weight and time limitations, should be recorded on the Form C-4.3. Alternatively, the physician may refer the injured worker to a physical or occupational therapist for completion of the functional measurements and, after the physician’s review, incorporate them into the Form C-4.3.
    2. Exertional ability: Finally, the physician should rate the injured worker’s residual exertional capacity according to the standard classification system of Sedentary to Very Heavy. The exertional capacities relate to those activities that require lifting and/or pushing or pulling objects. The definitions of each category, which are derived from the Dictionary of Occupational Titles and used in the Social Security system, are as follows:

    • Sedentary: Exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.
    • Light: Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently and/or negligible amount of force constantly to move objects. Physical requirements are in excess of those for sedentary work. Even though the weight lifted may only be a negligible amount, a job should be rated light work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible. NOTE: The constant stress of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.
    • Medium: Exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. Physical demand requirements are in excess of those for light work.
    • Heavy: Exerting 50 to 100 pounds of force occasionally, and/or 25 to 50 pounds of force frequently, and/or 10 to 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for medium work.
    • Very Heavy: Exerting in excess of 100 pounds of force occasionally, and/or in excess of 50 pounds of force frequently, and/or in excess of 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for heavy work.
  3. Non -medical vocational factors:
    • Vocational issues: Education and Training. The Board considers the role of education in a worker’s ability to qualify for different occupations and level of income. The relationship between education and loss of wage earning capacity is complicated by the fact that the impact of education is also generally reflected in workers’ pre-injury wages. Those with more education generally earn more than those with less education, both pre-injury and post-injury. Thus, in determining loss of wage earning capacity, it the court will evaluate the degree that educational achievement affects the impact of a medical impairment on a worker’s earning capacity.
    • Vocational issues: Skills. Prior work skills are often as important as formal education in an individual’s qualification for employment. An injured worker with a history of unskilled or semi-skilled work in the past is unlikely to qualify for skilled work post-injury. A worker who has performed skilled work may be able to find other skilled work within his functional limitations, though this depends on the nature of the worker’s job skills. A key consideration is whether the worker’s skills are readily transferable to alternative employment. The transferability of skills from a prior occupation generally depends on the similarity of occupationally significant work activities among different jobs. The similarity can be measured by the level of similarity in the degree of skill involved, the tools and machines used, and the materials, products, processes or services involved.
    • Vocational issues: Age. The 2012 Guidelines instruct that age “should be considered in the context of residual function, education, and work experience.” The court will presume that advancing age adversely impacts a person’s ability to obtain employment that involves work that is different from one’s prior work experience or requires developing new skills.
    • Vocational issues: Literacy and English Proficiency. The ability to read, write, and speak English fluently is a requirement for many occupations in New York. Those who have limited or no ability to read, write or speak English fluently may still qualify to perform manual labor and other work that does not require interaction with the public or involvement with written documents. Workers who are illiterate or have limited or no English proficiency and, by virtue of their impairment, are rendered unable to perform manual work may have a significant loss of earning capacity.

New York: Trying to "fix" suppressed defenses doesn't work.

An employer can deny a case for lack of notice, lack of employment, wrong carrier, or other jurisdictional or substantive reasons by filing a “notice of Controversy” (Form C-7). Once the C-7 is filed, the case will be set down for an expedited hearing within 30 days. The Act also requires that a “Pre-Hearing Conference Statement” (Form PH-16.2) must be filed 10 days before the Expedited hearing. See 12 NYCRR 300.38(f)(4). If the Pre-Hearing Conference statement is not filed on time, all defenses are waived.

We counsel our clients that if you are denying a case, file a Pre Hearing Conference statement at the same time – to avoid the potential for failing to file the Statement (Form PH-16.2) within the 10 days. There is just too much that can go wrong – late notice of the hearing date, no notice at all, etc! If you have enough information to justify a denial, you have enough information to fill out the Pre-hearing Conference Statement – so go ahead and file the PH-16.2 at the same time.

We think he best practice is to have outside counsel handle the entire process! More commonly, we see the carrier file a C-7, then refer the claim to outside counsel. This introduces delay and a possible dropped deadline into a time-sensitive process.

In March I reported on two cases where the Appellate Division upheld the suppression of defenses where the carrier failed to timely file the Pre-hearing Conference Statement. LINK

In a case decided September 29, 2011, the Appellate Division reviewed a situation where the employer denied the case (filed a C-7) but didn’t file the PH-16.2 within the time limits. To fix the mistake, counsel immediately filed an “amended notice of controversy” and argued that the originally-scheduled Pre-hearing Conference was therefore “premature” and should have been rescheduled, thereby making the PH-16.2 timely.

The Workers’ Compensation Law Judge refused to excuse the late fling, and stripped the employer of its defenses, ultimately establishing the claim.

In a decision dated September 29, 2011, the Appellate Division affirmed this outcome.

Best practice: be wary of the requirement that the Pre-Hearing Conference Statement be filed ten days prior to the expedited hearing – implement a plan to make sure this is done timely or risk a suppression of defenses!

Case: Butler v. General Motors, NY Slip Op 06634 (App. Div. 3d Dep’t, Decided September 29, 2011).

Board proposes to expand Medical Treatment Guidelines to Carpal Tunnel Syndrome.

It has been nearly a year since the Medical Treatment Guidelines become the mandatory standard of care for injured workers, regardless of the date of injury or accident for injuries to the back, neck, shoulder, or knee. N.Y.C.R.R. 324.2. Now the Board has proposed Carpal Tunnel Syndrome Medical Treatment Guidelines. This will impact handling of these claims as currently treatments (such as release surgeries) which cost more than $1,000 are subject to carrier approval for body parts not covered by the MTG. Under the proposed Guideleines, nearly all carpal tunnel release surgeries will be considered pre-approved.

What do the current Guidelines cover?

Under the current Medical Treatment Guideliness, medical care provided to injured workers must satisfy a two-prong test:

    (1) Medical care for workers’ compensation injuries to the neck, low back, mid back, shoulder, and knee must be provided in a manner “consistent with the MTG.” This is the standard for doctors and health care providers to follow.
    (2) “Consistent with the MTG” means that care is provided within the criteria and based upon a correct application of the MTG. What is “within the criteria” and “a correct application” is left open for the WCB’s WC Judges to interpret.

The Medical Treatment Guidelines include statements of “General Principles” in each MTG’s first section. These are the key principles necessary to apply and interpret the MTGs. There are 23 general principles divided into 6 categories. Of these, the two most important are:

    (1) Medical Care. The purpose of medical care is to restore functional ability required to meet daily and work-related activities, to obtain a positive patient response primarily defined as functional gains which can be objectively measured, and to provide effective treatment which includes evaluations and re-evaluations of treatment and which discontinues ineffective treatments.
    (2) Treatment approaches. Treatment should emphasize active interventions over passive modalities (i.e., therapeutic exercise instead of manipulation), should include passive intervention as a means to facilitate progress in an active rehabilitation program, and should resort to surgical interventions only when there is correlation of clinical findings, clinical course, imaging and other diagnostic tests.

When are Authorizations Required?

All medical consistent with the MTG is pre-authorized and the health care provider is not required to obtain prior authorization. See N.Y.R.R.C. 324.2(d)(1). For carpal tunnel syndrome, all release surgeries will be considered pre-approved under the proposed Guidelines except where there is no electrodiagnostic evidence of carpal tunnel injury (must be EMG and NCV). Further, some therapies, including: low level laser, iontophresis, magnets, or “laser acupuncture” are specifically deprecated.

The Board is accepting comments on the proposed CTS Guidelines and will likely adopt regulations to incorporate the Carpal Tunnel Syndrome Medical Treatment Guidelines into the law after December 1, 2011. Of course, I will keep you up to date with the progress of this reposed change.

Now, where’s that pain management guideline we need so badly?!?

Comp 101: New York Workers' Compensation settlements

Background

Under the New York Workers’ Compensation Law, there are four types of benefits available to an injured worker:

  1. Medical treatment. Emergency and follow-up treatment for their injuries.
  2. Wage compensation for earnings lost while they recover from the immediate effects of their injury.
    • This wage compensation is called “temporary total” with the claimant is 100% totally temporarily disabled (cannot work at all) OR
    • “Partial temporary” when the claimant can do some work – but isn’t earning their prior level of wages (usually because they can only work part time or have to work at a job that pays less than the work they were doing at the time of the accident). This is calculated as 2/3rds of the difference between old wages and post-accident wages.
  3. Death benefits payable to the dependents (usually wife and kids) of a worker killed during the course of employment. This is 2/3rds of their average weekly wage at the time of injury, subject to maximums and minimums, to the wife for life.
  4. “Permanency” benefits – these are payments of money to injured worker to compensate them for the “permanent effects” of an accident.

With rare exception, our settlements will focus on resolutions regarding the amount of “permanent disability” that a claimant is due.
 
The amount of permanent disability – the money award at a claimant gets when he has reached maximum medical improvement – is set by statute.
 
The statute envisions two types of permanent disability compensation:

  1. “Scheduled loss of use” which relates to injuries to body parts which are listed on this “scheduled loss of use chart” which is attached to this document. This is a fixed amount of compensation for injuries to fingers, toes, hands, feet, arms, ankles, knees, etc.  In other words, the Workers Compensation Law states that if you lose your thumb in accident, you get a fixed benefit – a number of weeks of compensation times your weekly rate – which is determined by the injury.
  2. The second type of permanent disability award is called a “classified award” or sometimes it is called a “classification.” This term “classification” doesn’t really mean anything – it just means you sustained injury to a body part which is not specifically described on the “scheduled loss of use chart.” For example, injuries to the head, neck, and low back are considered “classifiable” injuries – and they are compensated in terms of a fixed number of weeks – up to 600 weeks.

Example.

If I made $200 per week and I lose my thumb, according to the scheduled loss of use chart, I would be entitled to 100% loss of the thumb – 75 weeks of compensation. This would be paid at a rate equivalent to 2/3rds (66.6%) of my average weekly wage – or approximately $133.34 per week (two thirds of $200 per week). So in this example, the loss of my thumb would give rise to an award of $10,000 for permanent disability. The other benefit I would get would be medical treatment for life in regards to the lost thumb.
 
Imagine if I sustained an injury to my low back.
 
Assume that the treating and examining physicians all agreed that I was left with a 25% permanent residual impairment. My award would be 2/3rds of my average weekly wage times 25% of 600 weeks (the maximum number of weeks for classifiable injury). So, the award would be $133.34 times 150 weeks of compensation or $20,000.
 
Any amounts already paid to me – the claimant – during the claim for my lost waged – for example, if I lost a few weeks from work – would be subtracted from the overall award.

 Often, there is not a simple agreement between the parties as to the extent and nature of the claimant’s residual permanent disability. In such a case, we will often have a trial. During the pendency of the trial both parties have the opportunity to present their own witnesses – usually medical witnesses who claim that the injured worker is either completely and totally disabled (the claimant’s doctors) or is absolutely fine and ready for the Olympics (our IME doctors).
 
If the parties can reach a settlement before the judge reaches his conclusion regarding permanent disability – we can stipulate to an overall resolution. That settlement can be handled a number of different ways. What follows is a description of the three ways in which settlements are typically resolved.
 

Settlements

The main difference between these ways of settlement is whether or not the settlement is “full and final” – that means the claimant can never come back into court and alleged that his condition has worsened and now needs more compensation – and whether or not the employer/carrier remains liable to provide future medical benefits to the claimant should the condition worsen or should the claimant require additional medical treatment.
 
As medical treatment costs are now driving workers compensation claims (the employers and carriers are seeking to minimize medical treatment costs) a settlement in which the medical treatment aspects are closed (a “full and final settlement with closed medical”) is the preferred way for a carrier/player to resolve workers compensation case.
 

  1. Lump-sum dismissals – everything gets closed.

     This is often referred to as a “section 32” settlement after the section of the statute which allows for this type of settlement. This is the preferred way for employer/carrier to close a case. In this type of settlement, the claimant is paid one lump sum – usually agreed upon between the parties and usually a whole number – for example, $50,000 – to resolve all issues. The claimant loses the right to reopen this claim should his condition worsened. The claimant loses the right to seek additional medical treatment which must be paid for by the employer/carrier. The claimant is responsible for paying his own attorney’s fee – usually 15% of any settlement – directly to his attorney.

    A section 32 settlement must be approved by a judge of compensation. There are number of forms which must be completed and submitted to the court for settlement of this type to take place. Addiitonally, consideration of Medicare’s potential future interest must be made – in many cases, a set-aside allocation should be considered.
     
    These forms are:
     

    1. C–32 settlement form.
    2. C–32.1 settlement form
    3. A–9 form.
    4. An addendum document, explaining that the claimant’s right further compensation is waived, that medicals are closed, and laying out any other particular aspects of the proposed settlement.
    5. A further correspondence must be sent to the office of Child support enforcement seeking a statement that the claimant does not know any child support payments in the state of New York. This should be simply sent to the Office of Child Support Enforcement – and does not have to be submitted to the workers compensation board except as a copy.
  2. Lump-sum dismissals – medical stays open.

    This is still a “section 32” settlement with the only aspect of the case that is closed is the amount and nature of the claimant’s permanent residual disability. In other words, we our paying the claimant a lump sum for the amount of permanent impairment to the body part injuries the accident.  The claimant is also giving up the right to reopen the case – he can never come into court and say’s condition has worsened and he needs more compensation for increased impairment. However, the carrier remains “responsible” for additional medical treatment should the claimant’s condition worsen and require additional care. In this type of settlement, Medicare’s potential future insterest does not have to be considered – medical stays open and so the claimant can come back to the medical carrier for any necessary treatment.
     
    The specific forms which must be filed in this case are the same as the lump-sum dismissal of all claims (above at one).
     

    1. C–32 settlement form.
    2. C–32.1 settlement form
    3. An addendum document, explaining that the claimant’s right further compensation is waived, that medicals are closed, and laying out any other particular aspects of the proposed settlement.
    4. A further correspondence must be sent to the office of Child support enforcement seeking a statement that the claimant does not know any child support payments in the state of New York. This should be simply sent to the office of Child support enforcement – and does not have to be submitted to the workers compensation board except as a copy.

     

  3. Stipulated settlement

    – classification or scheduled loss of use with medical staying open. In this case, we are stipulating to the fact that the claimant has a residual permanent impairment to a “scheduled” body part or to a body part which is “classified.” In this case, we complete form 300.5 S completely as possible – describing the injuries, the percentage of permanent pyramid, and all necessary particular facts to establish the award – which will include the average weekly wage of the claimant. In this type of stipulated settlement, we will be granted credit for payments of temporary total or temporary partial wage continuation benefits which were issued during the pendency of the case – while the claimant recovered.
     

Have any questions about settling claims in New York? Contact Greg Lois.