Many of you may have already received this type of award, known as a schedule, or percentage loss of use which is based on the severity of your injury and your rate of compensation.  Thanks to heavy lobbying by the claimant’s bar, we have been successful in dramatically increasing the maximum rate of compensation on July 1st of each year since 2007.  In fact, as of July 1st, 2011 the maximum rate will be $772.96, a far cry from the $400 maximum rate before July of 2007.  That 93% increase in the rate means that those cash awards that were once worth only $7500 are now worth almost $15,000!

If you have questions about a possible loss of use award or about Workers’ Compensation in general, please do not hesitate to email (info@workerscompny.com) or call our office (516-594-0909).

Bowing to extensive pressure from the business council, on December 1st, 2010, the Workers’ Compensation Board issued guidelines outlining the standard of care for the neck, back, knees and shoulders.  The doctors are required to comply with these guidelines which greatly restrict the types of treatment available as well as the duration of the treatment.  In order to step outside of the guidelines, your doctor must file a request that if denied, must be resolved through a trial.  Worst of all, the treatment being sought cannot be performed until the trial has been completed further delaying your recovery.

Gone are the days when treatment was simply authorized on an as needed basis.  Instead, now injuries are expected to fit in categories with extensively restricted treatment.  This restriction is purportedly to help speed up treatment, but in fact the reality is just the opposite with injured workers having necessary treatment denied because a form was not completed properly.  Our firm remains at the forefront of the fight against this restriction of your treatment by supporting legislation now before the State Senate that could reduce the impact of the guidelines.  Furthermore, we have extensively studied the guidelines and have been leading workshops with your medical providers so as to ensure the speedy resolution of your treatment needs.

Your weekly rate of compensation is derived from your gross, or pre-tax earnings.  An injured worker is entitled to claim 2/3 of that “average weekly wage,” subject to  a maximum rate depending on the date of the accident.  As a result of recent substantial changes in the Worker’s Compensation Law, with the turn of the calendar each July 1st, the rate of compensation will increase based on the average weekly wage for workers in New York State for accidents on or after July 1st of that year.

Here at Polsky, Shouldice & Rosen, P.C., we recognize the need to convince the Court to fix the highest average weekly wage possible so as to ensure your right to the largest weekly rate allowable by law.  If you have any questions about the proper maximum rate of compensation or how to calculate your wage or maximum rate, please do not hesitate to contact us to discuss the issues further.

Specifically, statewide, claimants and their representatives have seen decisions issued implying that the carrier’s consultant is correct, even in cases where the claimant has evidence to the contrary.  Often these decisions are issued not by Judges by examiners, in a form that is cannot be objected to in any formal fashion.  Worse, these decisions are issued in cases where a hearing has already taken place, meaning that the examiner’s issuance made without the claimant being present is overruling a decision by a Judge made with all parties present.

While we have no objection to these “decisions” being made when they do not contradict a Judge’s findings we implore the Board to respect the clear language of the statute and refrain from trying to limit an injured worker’s right to a hearing.

One of the main components of the 2007 reforms to the Workers’ Compensation Law was the “capping” of most payments of disability.  Where formerly a injured worker with a permanent disability would have been entitled to continuing payments for life, now, the reform act caps benefits at varying numbers of years depending on the percentage of loss of earning capacity.

The problem?  The law doesn’t explain how to calculate a loss of earning capacity.  Instead, it directed the WCB to promulgate guidelines that explain how to determine what a loss of earning capacity is, and how much of a loss a particular accident has caused.
Amazingly, to date, the WCB still has not issued the aforementioned guidelines.  Instead, they have continued to rely on Guidelines that were issues in 1996, Guidelines that don’t begin to contemplate, much less address the issue of earning capacity.    Rumors abound as to the date the Guidelines will be published, but until they are, injured workers remain in the dark.

Your weekly rate of compensation is derived from your gross, or pre-tax earnings.  An injured worker is entitled to claim 2/3 of that “average weekly wage,” subject to  a maximum rate depending on the date of the accident.  As a result of recent substantial changes in the Worker’s Compensation Law, with the turn of the calendar each July 1st, the rate of compensation will increase for accidents on or after July 1st of that year.  For example accidents between July 1, 2008 and June 30, 2009 were subject to a maximum of $550 per week, while workers injured between July 1, 2007 to June 30, 2008 were entitled to $500 per week.

Here at Polsky, Shouldice & Rosen, P.C., we recognize the need to convince the Court to fix the highest average weekly wage possible so as to ensure your right to the largest weekly rate allowable by law.  If you have any questions about the proper maximum rate of compensation or how to calculate your wage or maximum rate, please do not hesitate to contact us to discuss the issues further.

In the face of intense pressure from all sides the Board revamped the plan, reintroducing its latest plan via a webinar broadcast on Friday, May 7th. While claiming to completely comply with all aspects of the Workers’ Compensation Law (including the worker’s absolute right to a hearing), the Board presented a system that would only eliminate hearings on issues that could be resolved without a Judge.

The WCB has begun rolling out the program at certain Board locations, including the Hauppauge district.  The jury remains out on the program, and it remains to be seen what the practical application of the system will bring. Stay tuned to our newsletter for further updates.

The Judge’s order, which imposed a temporary restraining order on the State preventing them from forcing the furlough starting next week, noted that the plan would have cost about 100,000 state workers a day’s pay could have caused irreparable harm if put into effect. The Judge also ordered the Governor to release raises that had already been granted in April but had not yet been paid.

Amazingly, even in light of the Judge’s order the Governor continued to call for the state’s workers to clean up Albany’s mess. Following the Judge’s order, Governor Patterson said: “Until we go to court, the state work force will not be making any sacrifice in our deficit-reduction plan. And I think that’s unfortunate.” Apparently, withheld raises and paying substantial taxes is not enough of a contribution in the Governor’s eyes, the same Governor who, until recently, was proposing substantial raises for his own staffers.

WORSE YET, THE WORKERS’ COMPENSATION BOARD HAS ALREADY IS ITS SCHEDULED CALENDAR FOR THE FIRST WEEK IN JUNE AND IT DOES NOT INCLUDE HEARINGS ON FRIDAY JUNE 4TH, REFLECTING THE PROPOSED FURLOUGH.  EVEN WITH THE RECENT ORDER BY THE JUDGE, HEARINGS HAVE NOT BEEN ADDED. IT SEEMS THE GOVERNOR AND LEGISLATURE WILL CONTINUE TO EXPECT THE INJURED WORKERS TO BEAR THE BURDEN OF  OF CLOSING THE BUDGET DEFICIT WITH A 20% REDUCTION IN HEARINGS.  ONCE AGAIN THE HARD WORKING MEN AND WOMEN OF NEW  YORK STATE ARE ASKED TO MAKE SACRIFICE UPON SACRIFICE TO ASSIST ALBANY IN DIGGING OUT OF THE MESS IT CREATED.

Contact the Governor at 1-877-255-9417 and your local Legislator and let them know that the impact of the furlough is far greater than the loss of a day’s pay, ITS THE DELAY IN JUSTICE FOR THOUSANDS AND THOUSANDS OF INJURED WORKERS THROUGHOUT THE STATE.

The proposed furlough asks the hard working men and women of New York State to correct Albany’s continued outrageous spending and lack of fiscal responsibility. For those who work for New York State, in addition to exorbitant taxes and an incredibly high cost of living, Albany now asks that workers lose a day of pay in already hard financial times.

Sadly, for those workers who have suffered job related injuries and are out of work with little or no financial support, the furlough now results in a 20% delay in getting their case heard before a Law Judge. While the Workers’ Compensation Law allows for a hearing within 20 days of a request for same by the carrier, that same right does not exist for an injured worker. One less day per week for hearings coupled with limited space on the calendar and the legally required immediate hearing of a carrier’s request for a hearing result in substantial delays for the injured worker in search of some sort of income to keep him or her afloat.

Worst of all is the Governor’s furlough is nothing more than financial slight of hand, all on the backs of the injured workers. The truth of the matter is, while Worker’s Compensation is a state agency, unlike any other agency, the costs of compensation are borne by assessments on the carriers. Salaries for Judges and reporters, rental for hearing points, printing of forms, they’re all paid for by universal assessments against all workers’ compensation carriers who write policies in New York State. Thus the mandated extra day off will not add additional monies to the state’s coffers and keep the state afloat. Instead, Albany can utilize creative accounting and continue its policy of using and abusing New York’s hard workers for their own benefit.

Call your local congressperson and the Governor and tell them enough. Call 1-877-255-9417 and ask them why the injured worker is suffering twice, once from his or her injury and again when justice is delayed by almost 20%.

Commissioner Beloten is a well respected and well liked former Worker’s Compensation Judge on both Long Island as well as in Queens, a Judge whom we have appeared before on a regular basis.  We applaud the decision of the Governor and look forward to working with the Chariman in furthering the needs of the injured worker in New York State.