Monthly Archives: August 2012


Can I Collect Social Security, A Pension AND Workers’ Comp?

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Today’s post comes from guest author Matthew Funk from Pasternack Tilker Ziegler Walsh Stanton & Romano. While the specific examples given are from NY, the information is true in WI as well–SSD, pension, and Workers’ Comp benefits can be paid concurrently.

QUESTION: IF I AM GETTING SOCIAL SECURITY DISABILITY (SSD) AS WELL AS A PENSION DOES THAT MEAN I CANNOT GET WORKERS’ COMPENSATION AS WELL?

ANSWER: YOU CAN GET STILL GET WORKERS’ COMPENSATION WHEN YOU ARE RECEIVING A PENSION AND SSD.

At 55, Joe was a walking museum of every accident he had ever had in his 30 years of working the job. That last accident put him out of work for almost two years. Luckily, he filed all the paperwork, submitted all the forms, crossed all his ‘Ts’ and received Social Security Disability (SSD).

But after three decades of hard work, Joe had had enough and so he started the paperwork to retire. But he was worried. He had planned on applying for Workers’ Compensation, but he wasn’t sure he’d could since he was already on SSD and about to receive his pension. What should he do?

File, Joe! File!! The combination of Workers’ Compensation, Social Security Disability and a pension is called the Trifecta, a Triple Crown of benefits, so to speak. Continue reading »

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Can I Move To Another State If I Have A Work’ Comp’ Claim?

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Today’s post comes from guest author Emanuel Aron from Pasternack Tilker Ziegler Walsh Stanton & Romano. This note refers to NY , but also applies in other states, including WI.

Question: Can I move to another state even though I have a workers’ compensation claim in New York?

Answer: Absolutely! Many claimants move to other states during the course of their workers’ compensation claims.

Here are the top five things to consider when moving to another state:

  1. Tell your workers’ compensation attorney that you are moving, and update your contact information such as telephone number and address.
  2. Find a doctor in your new state that handles workers’ compensation claims in New York state. A simple Google search should give you several hits. Be sure to ask if the doctor handles workers’ compensation claims for claimants.
  3. As there is often confusion at the initial stages of treatment as to why a patient is seeing the doctor, be sure to tell your doctor that you have an ongoing workers’ compensation claim in New York for which you need continuing treatment.
  4. Have your Notice of Decision authorizing medical treatment handy! This is how the doctor knows that he or she is allowed to treat you for your work-related injury. If you do not have a copy of that Notice of Decision or have lost it, ask your workers’ compensation attorney to send you a copy ASAP.
  5. Be proactive. This is your workers’ compensation claim: you have a right to your medical records. Ask for them after each visit! Give your workers’ compensation attorney the doctor’s contact information, including telephone number, fax number, and address. Get in touch with your workers’ compensation attorney if the doctor is having any difficulty getting your medical treatment paid for by the insurance carrier.

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Worker’s Comp for Shooting Victims

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I look at events through the lens of a worker’s compensation lawyer.  When I read headlines indicating “Disgruntled Employee Shoots Supervisor” or “Mad Man Shoots Sikhs” which have recently captured the headlines in Milwaukee, I read them through the filter of 35 years as a worker’s compensation attorney representing injured workers.  My heart goes out to the family of the supervisor shot by an employee apparently upset by his working conditions.  The worker’s comp lawyer in me reviews the headlines, asking a few relevant questions (to myself):

  1. Was this death in the course and scope of employment?
  2. Was it a purely personal assault (bearing no relation to the individual’s employment status or location)?
  3. Does this death trigger the “arising out of” coverage based on the doctrine of “positional risk”?

For the senseless murder of worshippers at a Sihk temple in Milwaukee, I ask similar questions:

  1. Were those who were murdered working at the time of the injury as devotees ( paid or volunteers)?
  2. Are their families entitled to a worker’s compensation death benefit?

The courts have indicated the theory or doctrine of “positional risk” applies to Continue reading »

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Death On The Job – AFL-CIO’s Releases Its 21st Annual Report

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

The AFL-CIO has released its 2012 report on worker fatalities which also examines the Occupational Safety and Health Administration’s (OSHA’s) role in ensuring safe workplaces. The AFL-CIO has been producing this report for 21 years, and we hope they continue to do so.

Since Congress passed the Occupational Safety and Health Act in 1970, workplace safety and health conditions have improved. But too many workers remain at serious risk of injury, illness or death.

In 2010, according to data from the U.S. Bureau of Labor Statistics, 4,690 workers were killed on the job—an average of 13 workers every day—and an estimated 50,000 died from occupational diseases. Workers suffer an additional 7.6 million to 11.4 million job injuries and illnesses each year. The cost of job injuries and illnesses is enormous— Continue reading »

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Tom Domer Quoted On Workplace Deaths In Workers’ Compensation System

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Attorney Tom Domer

Recently our own Tom Domer was quoted in the Oshkosh Northwestern in an article entitled “Special Report: Wisconsin Companies Insulated From Stiff Penalties In Worker Deaths.” The article, based on a review by the paper of 240 workplace fatalities in Wisconsin over an 11-year period, exposed that the fines imposed by the Occupational Safety and Health Administration (OSHA) on companies have been small and are often negotiated down from an already low starting point. Of the 240 workplace fatalities, fines were assessed in just 184 cases, and the median fine was a mere $4,200.

While workplace deaths have dropped dramatically since OSHA implementation in the 1970s, tragedies still occur.  OSHA’s limited penalty mechanisms in these cases “cheapens” the value of life. Wisconsin’s workers’ compensation system also protects employer’s against bad behavior.  A death benefit in Wisconsin is equal to four times the deceased’s annual wages, but the deceased’s family members cannot bring a personal injury claim agains the employer (meaning no recovery for pain and suffering or loss of consortium).  Under the worker’s compensation law, the only “fine” against the employer is a potential safety violation (with a minimal $15,000 cap). In Tom’s words “No matter how evil, nefarious or even negligent an employer is, there is no lawsuit potential.” Tom further remarked that “The law unfortunately protects employers even against their own negligence.”

We recommend that you read the article in its entirety by clicking here.

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When Is It Time To See The Doctor?

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

While this post deals with some aspects of New York law, the suggestions also apply to the worker’s compensation law of Wisconsin.

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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Our Aging Population Requires More Attention

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Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law.

In the past three months, 39.8 million people over age 15 have provided unpaid care to someone over 65 because of a condition related to aging.

As some jurisdictions cut off workers’ compensation benefits based on age, the burden of providing elder care will even increase more significantly in the years ahead.

Click here to read the article: “New Numbers on Elder Care,” Paula Span (NY Times)

Click here to read the report: American Time Use Survey — 2011 Results (US BLS)

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Too Much Government Regulation?

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Last week in Chicago I participated in a conference for the Work Injury Law and Advocacy Group (WILG). I have been a Board member since its inception in 1996, and edit its national magazine Workers’ First Watch. The conference commemorated the 40th anniversary of the 1972 Commission on Worker’s (then Workmen’s) Compensation. The conference presenters, Republican appointees of the Nixon administration, concluded that only a few of the 18 basic recommendations for injured workers (sufficient and timely benefits, medical care, etc) had been reached.

One lonely success story was the OSHA record. Nick Walters, a Regional Director of OSHA, presented devastating news for the “we need less government” crowd. He noted before OSHA was created in 1970, fourteen thousand Americans died annually on the job. Forty years later, in 2010, based in large part on OSHA safety regulations, work related deaths were reduced by 70%. For those on the “job-killing regulation” bandwagon, the undeniable fact is that OSHA is helping prevent employers from killing workers. Additionally, a recent Harvard-Berkley study indicated a Continue reading »

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Pain And Suffering: Not Part Of Your Settlement

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Today’s post comes from guest author Ryan Benharris from Deborah G. Kohl Law Offices.

I absolutely echo Ryan’s sentiments about pain and suffering. There are no pain and suffering damages under the Wisconsin worker’s compensation law! However, the law in Wisconsin is different than Massachusetts regarding the eligible compensation benefits, ranging from loss time benefits (temporary total disability), to permanent disability benefits, to loss of earning capacity and vocational retraining benefits. Please visit our website (www.domerlaw.com) or call us directly for more information about specific benefits under Wisconsin worker’s compensation law.

The worst part of my day as a Workers’ Compensation attorney is unquestionably the time when I need to explain to my clients that Workers’ Compensation does not include pain and suffering in a settlement. Inevitably, the look from the client is always the same. It’s the exact look I would give to my lawyer if he were saying the things to me that are coming out of my mouth to them. It’s a look that begins as disbelief then turns into anger.

Disbelieve it all you want; Pain and Suffering literally does not exist in Massachusetts Workers’ Compensation. There are an abundance of reasons and explanations for this. None of the reasons and explanations make it right. However, it’s something every injured worker must live with.

 

Disbelieve it all you want; Pain and Suffering literally does not exist in Massachusetts Workers’ Compensation…None of the reasons and explanations make it right. However, it’s something every injured worker must live with.

An explanation of what pain and suffering actually is makes it easier to understand how it doesn’t exist in Workers’ Compensation. Pain and suffering is a remedy that is only available to victims of personal injuries that resulted from the fault of another party. Workers’ Compensation does not have pain and suffering because it is a fault-free system.. You do not have to prove that your employer was at fault or that its negligence caused you to become injured. You simply need to prove that you were disabled as a result of an injury that took place at work. Fault is irrelevant. Though not needing to prove fault to receive workers’ compensation benefits is clearly a good thing, it comes with a hefty price. Unfortunately because fault is irrelevant, so is pain and suffering.

As you will undoubtedly hear from friends and family members, personal injury cases that settled for a lot of money did so because their attorney was able to prove that they had significant pain and suffering. Without pain and suffering, it often becomes difficult for workers’ compensation cases to settle for comparable amounts to a fault-based personal injury case. This makes it much more important that you know each and every benefit that is available to you if you are hurt at work.

Because pain and suffering does not exist in workers’ compensation, you must maximize the benefits that do actually exist. Workers’ compensation is what is known as a “wage replacement system.” Very simply, the only money the insurer is responsible for paying you is any wages that you may lose. You can receive wage replacement benefits for up to seven (7) years unless you become permanently and totally incapable of working.

The only other monetary benefit available to an injured worker besides the wage replacement benefits is if you sustain any permanent loss of function to a body part. This can be determined by your doctor. If your physician finds that there is a permanent percentage of loss of use to your injured body part, the insurance company will likely be responsible to pay you additional benefits. This, however, is hardly a substitute for pain and suffering.

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