Category Archives: Benefits

How to: Reducing Exposure by Offering Accommodated Positions in New York

We can stop paying temporary disability benefits in New York when:

  • The claimant has reached “maximum medical improvement” and is discharged from further care.
  • The claimant has voluntarily withdrawn from the labor market.
  • The claimant has refused a light duty offer that complies with the treating doctor’s work restrictions.

​Why seek a return to work in a light duty capacity?

Employees who do not return to work (transitional or otherwise) within 6 months of the date of loss have a less than 50% chance of returning to gainful employment. Injured workers who remain out of work for more than one year but less than two years have a 25% chance of returning to employment. Workers who have lost two or more years to injury have less than a 1% chance of returning to any type of employment. This drives up claims costs and is bad for the injured worker.

The Workers’ Compensation Board envisions a process in which an employer “creates” a light duty job tailored to each injured worker. In reality, most employers have a limited amount of potential light duty employment. In those cases, the goal of the claims professional is to get a clear statement of the claimant’s work ability from the treating physician and then to issue an appropriate offer letter to the claimant. Continue reading How to: Reducing Exposure by Offering Accommodated Positions in New York

Explainer: Permanency Benefits in New York

The New York Workers’ Compensation Law allows for four types of benefits to be provided to injured workers: medical treatment, lost time wage replacement, death benefits, and permanent disability benefits. This article discusses the three types of permanent disability benefit available to the injured worker:

  • Scheduled loss of use.
  • Classification/LWEC
  • Permanent Total Disability.

The employer is exposed for permanent disabilities which the claimant may prove. These three types of disability are compensated at different rates.

Scheduled Loss of Use.

Values come from tables which establish the compensation for loss of limbs, vision, and hearing in terms of ‘weeks of compensation.’ Scheduled loss is the percent of those weeks equal to the percentage loss of function of the member (for example a 10% schedule use loss of the arm equates to 31.2 weeks of compensation. The award is the number of weeks of compensation according to the schedule multiplied buy the workers’ maximum rate (2/3rd of Average Weekly Wages subject to the maximum and minimum rates in place according to the year of the accident). Prior payments of compensation and wages (all wages, not just those paid at the compensation rate) are deducted from the award. Continue reading Explainer: Permanency Benefits in New York

Settlements in New Jersey: What gets deducted?

What does the petitioner have to pay back when a settlement is reached in a New Jersey workers’ compensation case?

Has to be paid back: State Disability

Any petitioner’s award is offset by any amounts paid to the petitioner by State Disability as provided by N.J.S.A. 34:15-57.1. Temporary disability paid by the state for injuries later deemed compensable or settled via Section 20 must be reimbursed to the state. Before settling a case, counsel should be expected to investigate all outstanding liens. The New Jersey workers’ compensation law judge can provide the parties with the amount of the State temporary disability lien at the time of settlement.

Has to be paid back: Health Insurance

By the very terms of the Act, workers’ compensation insurance is primary to medical insurance. Therefore, any amounts paid on behalf of the petitioner for treatment deemed by a judge “reasonable and necessary” to cure the petitioner of the effects of the work-related accident, can be collected by the health insurer at the time of settlement, or later. Recent case law instructs that even matters disposed of pursuant to Section 20 may not extinguish a health insurer’s lien. Continue reading Settlements in New Jersey: What gets deducted?

Explainer: Wage Replacement Benefits in New York

This articles provides a basic overview of the wage replacement benefit – temporary disability – in New York workers’ compensation claims. A workers’ compensation claimant is entitled to medical care and wage replacement. If the worker is killed by the accident, his dependents may be eligible for death benefits.

As set forth more completely in my book, when an employee sustains are injury medical benefits must be provided immediately. WCL § 13. There is no waiting period before medical benefits must be provided. Wage replacement (as discussed below) has a waiting period before benefits must be provided. WCL § 12.

​Wage Compensation: Cash Benefits.

Cash benefits are not paid for the first seven days of the disability, unless it extends beyond fourteen days. In that case, the worker may receive cash benefits from the first work day off the job. Continue reading Explainer: Wage Replacement Benefits in New York

When Commutation of Payments is Available in New Jersey

Simply stated, a commutation is the legal term for a petitioner asking the court to accelerate the payment of an award to answer some pressing need of the claimant.

Commutation reduces exposure in two ways:

  1. Any commuted payment made is discounted 5%. Therefore, payments of compensation which are made under Order For Commutation save the insured money. (So, a commutation reduces the amount the respondent has to pay).
  2. The payment of commutation is deemed to shorten the period of overall benefits. A claimant, under the New Jersey Workers’ Compensation Act, has two years to re-open a claim from the time the last payment was paid. By commuting payments, the period for re-opener is shortened.

So, when is commutation available in New Jersey workers’ compensation cases? It turns out that it is only available in specific circumstances. Continue reading When Commutation of Payments is Available in New Jersey

New York State Workers’ Compensation Heart Attack Claims

Joseph Melchionne
Joseph Melchionne, Esq.

Pursuant to Workers’ Compensation Law (WCL) § 21,  injuries that occur at a claimant’s place of employment are presumed to be compensable work-related injuries for the purposes of awarding indemnity and medical benefits unless substantial evidence to the contrary is produced.  In essence what this means is that if an employee suffers an injury during work hours and/or on the premises of his or her place of employment, the claimant will be entitled to indemnity benefits for any causally related lost time from their employment as long as they are able to produce medical reports evidencing a disability resulting from the injury.

However, according to WCL § 10,  New York law dictates that for a workers’ compensation claim to be compensable the associated accident must have arose out of and in the course of employment, meaning there must be a causal nexus between the injury and the claimant’s employment. Idiopathic injuries, or personal injuries, may create a defense to a Workers’ Compensation claim if the employer can rebut the presumption that accidents arising in the course of employment arise out of the employment with “substantial evidence to the contrary.” See WCL §21.

Continue reading New York State Workers’ Compensation Heart Attack Claims