Category Archives: Workers’ Compensation

Work Related Back Injuries: The Nursing Conundrum

One thing that I have noticed during my career as a New York Workers’ Compensation attorney is the high rate of incidents involving nurses with back injuries. One may not immediately associate back injuries with nursing, but one need only stop to think for a second about all of the potential hazards nurses face during the course of their employment.

 

Lifting patients, having patients pull on the nurse, falls due to hazards in the room such as wet floors, and the strain of bending over numerous times to care for patients are all substantial risks for nurses. Amazingly enough, nurses suffer back injuries at a higher rate than construction, mining, or manufacturing workers! The Centers for Disease Control and Prevention has released numerous studies supporting this claim.Image

 

When it comes to nursing staff who have more direct patient contact, such as orderlies, Licensed Practical Nurses or Certified Nurse’s Aides, the incidents are even higher. Unlike a registered nurse, orderlies, LPNs and CNAs do not have the ability to perform light-duty work. Their essential job functions require them to be able to lift patients. The practical effect is that when a nurse suffers a serious enough back injury, oftentimes they can no longer be the employed in that same line of work. Not only will they have a significant loss in immediate income, but they will also lose paid time being retrained into an area of nursing that does not require patient lifting or, sometimes, into a new industry altogether that would not expose the worker to further back injury.

 

From a Workers’ Compensation perspective, back injuries frequently result in the injured worker having a permanent partial disability. For nurses who are unable to be retrained, the damages to the wage capacity of the nurse are profound. Not only will the nurse have in excess of 560 weeks of compensation due to be paid to the New York Aggregate Trust Fund (ATF) at the time of classification for a permanent disability, but the employer is also responsible for the nurse’s lifetime medical expenses arising from the back injury. The medical costs for a back injury can skyrocket over the course of time. When there is an injury to a specific level within the spine, oftentimes the levels adjacent to that level eventually wear and require treatment as well. This can have the effect of increasing the classification rate and the additional exposure of the cost of that medical care. One estimate from the CDC in 2009 put the cost of back injuries to healthcare professionals at $20 billion dollars annually.

 

The CDC (http://blogs.cdc.gov/niosh-science-blog/2008/09/22/lifting/) has released recommendations to limit exposure to back injuries. There are numerous methods that healthcare facilities can implement that will limit the possible risk of back injury to nurses. Unfortunately, even with the best standards of practice within the nursing industry, accidents will. Implementing  training on proper lifting, using Hoyer lifts, having multiple people lift patients, and spreading out the workload of the most difficult cases, are among the ways that healthcare facilities can reduce the possibility of back injuries. [i]

 

As most people are aware, the demand for nurses remains at an all-time high. By implementing these safety precautions, hopefully the industry can keep some of its most valuable assets.

 

Retraining injured healthcare professionals may be the best way to keep the person productive in the field, ease the need for qualified nurses and to increase the injured worker’s earning potential. I also believe that the healthcare facilities should be encouraging strengthening of back muscles and flexibility by offering free gym memberships or classes in their facility to facilitate prevention of back injuries. From a cost perspective, the potential for back injuries would be reduced from this ounce of prevention. The National Institute for Occupational Safety and Health (NIOSH) has had numerous studies to attempt to limit the occupational back injury exposure to nursing assistants, aides and orderlies. http://www.ncbi.nlm.nih.gov/pubmed/8728153.

 

 

Frequently, there is no specific incident that causes the back pain. The injured worker may not even realize that his or her back pain is work-related. When a nurse is suffering back pain, he or she should not only contact an orthopedic doctor, but should also contact an attorney for consultation on whether the injury may be compensable under Workers’ Compensation laws.  The law imposes strict deadlines on claimants.   If the healthcare professional does not have his or her case pursued correctly from the beginning, the professional may not be able to bring the case later.

 

If you are a nurse and suffered back pain as result of your employment or a work injury, please contact an attorney near you to discuss bringing a Workers’ Compensation case.

 

This article is brought to you by the Snyder Law Firm, PLLC and authored by David B. Snyder, Esq., an attorney with over ten years experience in Workers’ Compensation Law. The Snyder Law Firm, PLLC located at: 6876 Buckley Road, Syracuse, New York 13212. The Snyder Law Firm represents clients throughout the Central New York region at the New York State Workers’ Compensation Board.   This article constitutes attorney advertising and is not intended to provide professional advice concerning specific Workers’ Compensation Claims.

 

[i] http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&ved=0CGAQFjAH&url=http%3A%2F%2Fwww.researchgate.net%2Fpublication%2F8397485_An_evaluation_of_a_best_practices_musculoskeletal_injury_prevention_program_in_nursing_homes%2Ffile%2F60b7d5220bdcc6d671.pdf&ei=2JKhU-eeEojQsQTP64CABg&usg=AFQjCNHRyXgQ4s4b_xSelFxQSsl22KgQtw&sig2=Y6s7si2CHZUDwbw-xJSwUg

 

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Why Tipped Employees Should Claim Their Wages

Recently I have had a couple of cases where an employee who was receiving tips was injured. I think it is the custom and practice of the industry to not claim tips in an effort to increase take home pay. Obviously, there are consequences for this from a tax perspective, but from a Workers’ Compensation case perspective, the consequences can be just as bad financially.

So what happens when you do not claim your tips? First, you are avoiding paying taxes in the short-term, but your likely overall tax exposure is probably relatively low. I am not a tax attorney and cannot advise exactly how much exposure you would have, but there would be some exposure associated with not claiming all of your tips.

More importantly, from a Workers’ Compensation perspective, having tips claimed increases your average weekly wage. If you are injured and are missing time from work, the calculation for how much you were making per week is based on what you are actually claiming. If you are claiming the minimum and had been making substantially more, you would only received what you claimed. Recently I had a client who was a waitress and had been claiming $350 of wages per week. Her actual income was closer to $500 per week. By not claiming that $150 per week, her compensation rate for the time that she was out of work was reduced by $100. When she returned to work, her reduced earnings claim was greatly diminished. And when it comes time for permanency, even at a moderate rate, she will end up losing between $3,000 and $25,000.

What advantage did she gain by not claiming the tips? While she was employed, she had additional cash available for bills. More than likely though, at the end of the year, she would have likely received an earned income tax credit for the majority of her claimed wages and tips. I would advise tipped employees to consult with a tax professional to determine exactly what their total exposure would be for claiming all tips. There was also an informative article about the industry tax exposure posted by Siobhann Kathleen Williams, CPA on the following website: http://www.restaurantowner.com/public/342.cfm.

The consequences for not claiming the tips however were much more dire and ended up reducing her payments making it very difficult to pay bills while out on workers compensation. Workers’ Compensation is insurance against getting injured on the job. The basis for recovery is not only how badly you are injured, but how much you were making at the time you were injured. By not claiming all of your income, you reduce how much you will receive when you are injured and increase your financial burden when a catastrophic event occurs. When it comes time to make a claim for workers compensation, more often than not, you will wish that you had made the claim for tips and not the minimum as your coworkers will likely suggest. Why would you reduce coverage for one of the most important insurance policies you have available?

 

This blog has been brought to you by the Snyder Law Firm, PLLC. Please visit our website at www.Syracuseworkerscomp.com.

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The 10 most important steps to take to protect yourself when you have a work injury under Workers Comp Law in New York.

Cervical SpineHave you had an injury at work in New York? If you’re reading this, and you believe that you are entitled to Workers’ Comp, then this list is intended to give you some instruction on how to proceed with your claim. If you have a high risk job, then these are good things to keep in mind in the event you or a friend has an injury at work.

  1. Seek medical attention. If your injury is serious enough, don’t worry about the telling your boss, they will know. Your health is the most important thing you have. For instance, if you think you’re having a HEART ATTACK – CALL 911! Trust me, your life is worth more than the $50,000 potential death benefit your family will receive if your job causes your death.  If you can communicate that the injury happened at work, then be as detailed as possible when the pain started.
  2. Notify your employer. If your injury is not threatening life or limb, then take a moment before you go to your doctor to NOTIFY YOUR SUPERVISOR of the injury and how it happened. If you tell your supervisor make sure you note who you notified and when you notified them. [1]
  3. Keep written records. Follow up with written notice and keep a copy. Just to be safe in the event your employer does not take the necessary steps to ensure that the Workers’ Comp carrier is covering your injury. If your employer does not turn in the paperwork to the Workers’ Compensation Carrier, then this will be your proof that you timely gave notice.
  4. Report your injury to your healthcare provider. Follow up with your primary doctor and request a referral for the best physician for your injury type. As a general rule, any time you are seeing a doctor for your injury you should remind them that you are seeing them for a workers compensation case. If this is the first time that you are reporting an injury, then your physician can file a C-4 form to report the injury and get your case started. Ask to see your medical reports to make sure that your injury and causation is described. If the description is not accurate or is missing information, ask you provider to correct it. If the injury is an occupational disease, then your doctor’s report will likely be the first report of the injury.
  5. Seek the advice of a workers comp attorney. In New York, Workers’ Compensation attorney fees are set by the Workers Compensation Law Judge. Attorneys generally make less than 15% of money moving to the claimant. When compared to the 33% fee for personal injury matters, this is very reasonable. You do not pay your lawyer directly out of your pocket. In the event you claim is disputed, it is far better to have an attorney who is experienced handling your case than proceeding pro se. Even when your claim has been accepted, the carrier can make mistakes in the calculation of your average weekly wage, time calculations and degree of disabilities. Oftentimes, the lawyers provide enough added value to more than make up for the lost income.
  6. File your claim with the New York State Workers’ Compensation Board. The statute of limitations for filing a New York Workers’ Compensation Claim is 2 years. If you don’t receive compensation forms from the carrier indicating that your claim is accepted, then you may be in for a fight. If you believe that you are anywhere near the statute of limitations, you should file a C-3 form to report the injury to the Workers’ Comp Board.
  7. Keep a calendar/diary. Buy a small calendar book and keep your Workers Comp appointments in one place. You can write the date of your injury, the time you gave notice, court dates, doctor appointments and physical therapy times in one spot so that you can reference it in the future if necessary. * Remember you are entitled to reimbursement for your mileage, so by keeping the diary, it will give you another place to keep the information. The form for reimbursement is C-257.
  8. Maintain evidence of disability. Make sure you have medical evidence of your disability every 90 days. Your treating doc should know this and schedule you accordingly. If you don’t have evidence of disability, the carrier can cut your payments off. Do not give them an excuse to stop your payments by keeping your doctor’s appointments at least every 90 days.
  9. Look for work. If you have a partial disability, you have a duty to look for work within your restrictions. This doesn’t mean obtaining employment, but you must make an effort to look for
    work. Your employer may not have work within your restrictions, so you may have to look for work outside of your employer. You also have to keep track of your efforts.  C-258 is the form you have to provide. VESID is a great resource to help you find a job. You also may want to be careful around the house that you are not doing personal work outside of your restrictions because the carrier could have surveillance placed on you to attempt to prove that you are committing fraud. I don’t believe that you are necessarily committing fraud by overexerting yourself, but you may be playing a dangerous game.
  10. You may be entitled to a lump sum payment. You may be entitled to a monetary award once you reach maximum medical improvement for some injuries. This does not usually occur until one year after your injury or surgery, but this is something to keep in mind and to discuss with your physician and lawyer.

Attorney Dave Snyder maintains his practice in Syracuse, New York where he concentrates his practice in personal injury including New York Workers’ Compensation Law. If you have questions about a work related injury, please feel free to call Dave Snyder at 315-451-3040 or visit him at his website at www.syracuseworkerscomp.com. Copyright 2013.


[1] Workers Compensation Law Section 18. The failure to notify your employer timely has been confirmed by the Appellate Division 3rd Department to be prejudicial.

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Injured New York Workers Will have an Increase in the Maximum Benefit Rate July 1, 2013

increasing line chartThere is good news for injured workers in New York. If you have a work accident or are diagnosed with an occupational disease after July 1, 2013, the maximum possible benefit, which is linked to the Average Weekly Wage is receiving a slight bump. Benefits for both total and partial disabilities will increase from $792.07 to $803.21 under the New York State Worker’s Compensation law as of July 1, 2013.

It is of course the job of the New York legislature to set the maximum compensation rate. Over the last several years the average weekly wage has slowly been increased. Before 2007, the last average weekly wage increase occurred on July 1, 1992. At that time the average weekly wage maximum total rate was raised to $400. It stayed at that rate until June 30, 2007, before it was raised to $500. If your date of injury occurred after July 1, 1992, the chart below will give you the information necessary to determine what your benefit rate is for a total and partial disability under the New York State Workers’ Compensation Law.

Date of Accident                           Weekly maximum/partial Workers Comp indemnity payments

July 1, 1992-June 30, 2007             $400

July 1, 2007-June 30, 2008            $500

July 1, 2008-June 30, 2009            $550

July 1, 2009-June 30, 2010             $600

July 1, 2010-June 30, 2011              $739.83

July 1, 2011-June 30, 2012               $772.96

July 1, 2012-June 30, 2013               $792.07

July 1, 2013-June 30, 2014               $803.21

For further information about filling your Syracuse Workers Comp Claim, please do not hesitate to contact me.

David B. Snyder, Esq.

6876 Buckley Road ‘

Syracuse, NY 13212

315-451-3040

http://www.syracuseworkerscomp.com

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Would you give your left hand for 244 weeks of pay? The most common lump sum indemnity award in NY Workers’ Compensation Law, the Schedule Loss of Use.

Money for a hand

When people suffer an injury while at work in New York, usually there is no right to sue your employer. Instead, in New York your right to recover lost wages is limited to Workers’ Compensation.

When the injury is to an extremity and there is a functional loss of that body part, after your doctor has cleared you to go to work and you have reached maximum medical improvement, you are entitled to a lump sum award, also known as the Schedule Loss of Use (or SLU in Comp parlance). The SLU award is intended to give you some monetary compensation for the loss of that body part, even if the loss is a partial one.

Comp law can be rather macabre, particularly when you consider that we as a society place a value on arms, legs, hands, feet and digits. Would you give your hand for 244 weeks of pay? If you make a million a week? What if I told you the maximum amount of compensation for a week in New York is $803.21 a week? I doubt even the most desperate would consider it.

The mechanics the are simple. An award is given to the injured worker for the functional loss of a body part. If there is complete loss, that award would be 100% of the maximum number of weeks that body part would be entitled to, meaning that you would receive your average weekly wage award for that number of weeks. For instance, in New York an arm is worth 312 weeks of compensation. If you were to have a complete loss of an arm the maximum amount of compensation you can receive for that loss would be 312 weeks. If for example, your average weekly wage was $300 per week, you would receive 2/3 of that amount or $200 for 312 weeks or $62,400.

Your physician must make a determination as to the percentage of your loss. This cannot occur until you reach maximum medical improvement. By law the definition of maximum medical improvement cannot take place until at least one year since the injury date or the date of surgery. The time for you to reach maximum medical improvement is also a medical decision that your doctor must make. In order for you to be awarded the schedule loss of use, your doctor must determine that you have reach max medical improvement and then make their opinion known in their C-4 as to the exact amount of your loss. In New York, the number of weeks for each body part that can be awarded is as follows:

  • Arm 312 Weeks
  • Hand 244 Weeks
  • Thumb 75 Weeks
  • First Finger 46 Weeks
  • Second Figure 30 Weeks
  • Third Finger 35 Weeks
  • Forefinger 15 Weeks
  • Leg 288 Weeks
  • Foot 205 Weeks
  • Great Toe 38 Weeks
  • Other Toes 16 Weeks
  • Eye 160 Weeks

If you are injured in New York State, you should be contacting a Workers’ Compensation attorney in your area to assist you in maximizing the amount of compensation indemnity payments you will receive. If you are in the Syracuse area and suffered a work related injury, I would invite you to call my office at 315-451-3040 for a free consultation or visit my office website at http://www.syracuseworkerscomp.com .

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