Workers' Compensation Attorneys in Niagara Falls, New York
Workers’ compensation was designed as a system to provide immediate treatment and care to an injured worker while also delivering immediate wage replacement benefits without having to resort to a lawsuit against your employer to obtain these benefits. In return for this promise, the NYS legislature, on behalf of Labor, waived their right to directly sue their employer in New York. Over time, these promises and benefits have been scaled back by employers, governors and the NYS Legislature.
At Viola, Cummings & Lindsay LLP, our experienced workers’ compensation attorneys can provide you with valuable legal representation to protect your rights under this system. Reach out to our office in Niagara Falls today to get started. We also represent clients in the surrounding areas of Lockport, Tonawanda, North Tonawanda, and Corning, New York.
What Should I Do if I Have Been Injured at Work?
You must immediately notify your employer of any injury that occurred at work. Within 30 days of the injury, you should also file a written report with the employer documenting your accident or injury or at the least, verbally report your injury to your supervisor.
You must file a claim with the Workers’ Compensation Board within two years of the accident or within two years of the date you knew or should have known of the injury being related to your work activities.
If you have been injured at work, call us Viola, Cummings & Lindsay LLP for an appointment. There is no fee for the consultation. Our office can help you complete the C-3 form and any other necessary forms to file your claim with the Workers’ Compensation Board. You will then be assigned a case number which will be used throughout the life of your compensation claim.
Do I Need an Attorney for My Workers’ Compensation Claim?
This is a question often asked when people contact our office or at their first appointment. The answer is YES. The workers’ compensation system is an adversarial system between the injured worker and the workers’ compensation insurance company for the employer. Oftentimes, the Workers’ Compensation Board takes an adversarial position to the claimant’s best interests as well. You need an experienced advocate on your behalf to protect your rights and maximize your benefits.
Injured workers often do not realize that the workers’ compensation insurance carrier for the employer only handles workers’ compensation claims. As a result, they are well-versed in all aspects of the Worker’s Compensation Law. Their goal is to limit the amount of benefits paid to the injured worker and, as well, limit the amount of treatment that the injured worker receives. This saves the insurance company money and, in turn, the employer.
The workers’ compensation carrier, in turn, hires a defense law firm to represent their interests both behind the scenes and at all workers’ compensation hearings. These law firms typically only handle workers' compensation claims on behalf of insurance companies and employers and concentrate their practices to solely handling workers’ compensation matters. They too are looking out for the insurance carrier and the employer, NOT the injured worker.
It is imperative that the injured worker obtain an experienced workers’ compensation attorney to represent them and their interests at the earliest possible time following their injury.
What Can We Do for You & Your Workers’ Compensation Claim?
We will personally meet with you to obtain all of the necessary information at the outset of your claim. If needed, we will assist you in filing a claim with the Workers’ Compensation Board to create your claim and obtain a case number.
We will attend ALL workers’ compensation hearings on your behalf. Since the closure of the Niagara County hearing locations, which at one time were held in Niagara Falls, Lockport and Wheatfield, there is now only one hearing site location for injured workers from Niagara County and Erie County. This is currently located in downtown Buffalo. Oftentimes, we are able to handle hearings without even having to have our clients travel to this location.
Our attorneys will be monitoring your file behind the scenes to determine if a hearing is necessary on your behalf to increase your benefits or obtain medical treatment which has been denied by the insurance company. We will represent you at hearings when insurance companies attempt to reduce or suspend your weekly benefits.
We will seek to maximize your weekly benefits, reduced earnings or medical treatment as requested by your doctor. We will review the medical reports in your file and the wage statement filed by the employer to ensure you are receiving the correct amount of money. We will also assist in keeping those benefits active when you are unable to return to work and advise you on eligibility requirements for keeping your benefits.
Our office will handle any applications or rebuttals for the Workers’ Compensation Board appellate review. We can also advise you on issues of Social Security Disability and third-party lawsuits if requested.
Contact us today at Viola, Cummings & Lindsay LLP in Niagara Falls, New York. Whether your workplace injury occurred in Lockport, Tonawanda, North Tonawanda, or Corning, we are prepared to help you seek the full benefits you deserve,
What Am I Entitled to Under the Workers’ Compensation Law?
1. WEEKLY MONETARY BENEFITS: Under the Worker’s Compensation Law in New York State, you are entitled to weekly compensation payments if you are unable to return to work due to your injury. The maximum compensation rate is 66 2/3% of your Average Weekly Wage (AWW) prior to your injury if you are totally disabled. These payments are considered to be tax-free. If you are partially disabled, you are entitled to weekly compensation benefits at a lesser rate based on your AWW. If you return to work, either at your employer or elsewhere, but gross less earnings than you were earning prior to your injury on a weekly basis, you are entitled to reduced earnings. (Please see the reduced earning section for more details.)
2. MEDICAL TREATMENT: You are entitled to medical treatment for your established injury sites. Medical treatment is directed by the physician of your choosing subject to the Medical Treatment Guidelines promulgated by the Workers’ Compensation Board. These Medical Treatment Guidelines determine what treatments are available to you through your doctor without request or approval by the insurance company. There are certain other treatments that must be preapproved by the insurance companies upon request by your doctors. They also dictate how much chiropractic care, massage therapy and physical therapy you are entitled to prior to your physician requesting additional authorization for treatment.
3. MILEAGE REIMBURSEMENT: You are entitled to be reimbursed for your mileage to and from any medical-related treatment. This includes doctor appointments, IME appointments, chiropractic appointments, physical and massage therapy visits and diagnostic testing (i.e. MRI, X-rays and other tests).
4. SECTION 32 LUMP SUM SETTLEMENT: Depending on the type of injury that you have, you may also be entitled to a Section 32 settlement of your claim that provides for a Lump Sum payment to you in exchange for settling either your weekly benefits, your medical treatment or both. We will negotiate a Section 32 Settlement on your behalf to maximize the amount of money you receive for your case. We will advise you on the impact of a settlement on all aspects of your workers’ compensation case.
5. SCHEDULE LOSS OF USE: If your injury is limited to a limb injury, you may be entitled to a Schedule Loss of Use (SLU) award to compensate you for the residual impairment to your injured body part. We will negotiate with the insurance company and insurance company attorneys to maximize your SLU award. Oftentimes, the insurance company will have you examined by their doctor to limit your award. We will review all the medical reports and IME reports, undertake medical deposition testimony of the doctors, appear in Court and submit legal briefs on your behalf to obtain the largest SLU you are entitled to.
6. CLASSIFICATION WITH A PPD or PTD: If you have an injury that involves the spine or a limb injury that meets certain legal criteria, you may be entitled to a classification of your injury with a Permanent Partial Disability (PPD) or Permanent Total Disability (PTD). A classification may entitle you to ongoing payments for a certain length of time and may even lead to a Section 32 lump sum settlement. (See below for more details on SLU, PPD, PTD and Section 32 Lump Sum awards.)
7. THIRD PARTY LAWSUIT: You are NOT entitled to compensation for any pain or suffering or loss of consortium as a result of your workers’ compensation injury. However, if you have been injured due to the negligence of a third party, you may be able to bring a lawsuit against the negligent party to recover pain and suffering as well as other damages.
Our office handles all types of personal injury and third-party actions. These include motor vehicle accidents, slip and falls, construction workplace accidents, scaffold injuries, forklift accidents, burn injuries, wrongful death claims, labor law and product liability lawsuits. If you receive negligent medical treatment, we also handle medical malpractice claims.
What Is My Average Weekly Wage (AWW)?
Your average weekly wage is the figure used to calculate your weekly benefits. This figure is calculated based on your 52 weeks of earnings prior to your injury or fewer weeks if you did not work the full 52 weeks prior to your injury.
If you have more than one job at the time of your injury, you can add the gross earnings from both jobs together to increase your AWW. This is called “concurrent employment”. Merely provide us with your last couple of paystubs prior to your injury to allow us to make this claim on your behalf.
Under the Worker’s Compensation Law in New York State, the maximum compensation rate is 66 2/3% of your Average Weekly Wage (AWW) prior to your injury if you are totally disabled. These payments are considered to be tax-free. If you are partially disabled, you are entitled to weekly compensation benefits at a lesser rate based on your AWW. It is imperative that your AWW is set at the highest possible amount to ensure that you receive the most money you are entitled to on a weekly basis. Our office will examine your past earnings to make sure your AWW is set at the maximum rate.
What Are Reduced Earnings?
If you return to work but do not earn as much per week as you were earning prior to your injury, on a gross wage basis, you are entitled to Reduced Earnings. In order to qualify for reduced earnings, you must be working with some degree of disability as noted by your physician. Your physician must continue to document an ongoing disability every 60 to 90 days after your return to work with your disability. Insurance companies often do not advise you of this benefit nor do they wish to pay this benefit to you. The Workers’ Compensation Board does not advise you of this benefit either which is why you need an attorney to represent your interests.
You are entitled to 66 2/3% of your AWW while working. This is oftentimes more money per week than you receive if you are out of work and receiving only weekly workers’ compensation benefits. For example, if you earned $600 per week prior to your injury but returned to work with restrictions making only $300 per week, in addition to your $300.00 of earnings from your employer, the workers' compensation carrier will be directed to pay you an additional $200 per week to make up for the loss of $300 worth of earnings when compared to your AWW before the injury.
Can I Receive Unemployment Benefits & Workers’ Compensation?
If you are released to return to work by your physician with restrictions or an ongoing disability, and your employer cannot accommodate these restrictions, you may apply for unemployment insurance benefits (if eligible). In addition, you can continue to receive or be eligible to receive partial workers' compensation benefits.
Keep in mind that an injured worker cannot receive unemployment benefits and temporary total weekly benefits at the same time. Additionally, an injured worker cannot receive more than his average weekly wage when combining the unemployment insurance benefits and the ongoing workers’ compensation benefits.
Eligibility to Receive Weekly Compensation Payments
In order to maintain eligibility for ongoing weekly compensation benefits, an injured worker must see a physician authorized to treat workers’ compensation claimants by the NY Workers’ Compensation Board.
Your doctor must file proper forms with the workers’ compensation board and the insurance carrier indicating your degree of disability at each appointment. This is an ongoing requirement for you to see your doctor every 60 to 90 days and for your doctor to file the necessary forms at the same interval of 60 to 90 days documenting an ongoing disability. If not, the insurance carrier will be allowed to stop your weekly payments.
If you have a partial disability, you must also maintain an attachment to the labor market. (See Labor Market Attachment section.)
Weekly monetary benefits are not payable for the first seven days of lost time. If the injured worker misses more than 14 days, he/she is entitled to be paid for the first seven days of disability.
What Is Labor Market Attachment & Does It Affect My Case?
This is a rather new concept in workers’ compensation that truly did not exist until the mid-2000s. Nevertheless, the insurance carriers presented this defense to Judges at the Workers’ Compensation Board to stop weekly benefits to injured workers and the Board adopted this defense.
As a result, a temporarily partially disabled individual must document a good faith job search in an effort to return to work at either his place of employment or at an alternative job. This can also be accomplished by attending school on a full-time basis in order to retrain into a different field or attending a vocational rehabilitation program.
This is the most used defense by insurance companies to stop or suspend weekly benefits to injured workers.
What Is a Schedule Loss of Use (SLU)?
If you have an injury to a limb, such as an arm, leg, hand, foot, fingers or toes, elbow, knee, eyes and even your hip, and you do not have a progressive deteriorating condition to the injury site, you are entitled to a schedule loss of use award. This is designed to compensate you for the residual impairment of your injured site.
Typically, one to two years after your injury or one year after your last surgery, we will advise you to make an appointment with your treating physician for an SLU report. We will obtain the medical report and request a hearing on your behalf to have the Board direct an SLU award to you. All weekly benefits paid on your case are deducted from the final award.
What Is Protracted Healing?
The workers’ compensation law provides a certain length of time that it should take a claimant to recover from an injury on a temporary total basis. If you exceed the statutory temporary total disability weeks, the additional weeks are added to your schedule loss of use award.
The following is the statutory listing for PHP: Arm, thirty-two weeks; leg, forty weeks; hand, thirty-two weeks; foot, thirty-two weeks; ear, twenty-five weeks; eye, twenty weeks; thumb, twenty-four weeks; first finger, eighteen weeks; great toe, twelve weeks; second finger, twelve weeks; third finger, eight weeks; fourth finger, eight weeks; toe other than the great toe, eight weeks.
Average Weekly Wage
The Workers’ Compensation Law provides an artificial maximum weekly rate that you can be paid depending on your AWW. For injuries between 1985-1990, the maximum weekly rate was $300.00 and a split rate of $150.00. From July 1, 1990, to June 30, 1991, the maximum rate was $340.00 with a max PPD rate of $280.00. Effective July 1, 1991, to June 30, 1992, the maximum rate was $350.00 for either a total or partial disability. From July 1, 1992, until June 30, 2007, the maximum rate was $400.00.
From July 1, 2007, to June 30, 2008, the maximum rate was increased to $500.00 with a minimum rate of $100.00
From July 1, 2008, to June 30, 2009, the maximum rate was increased to $550.00.
From July 1, 2009, to June 30, 2010, the maximum rate was increased to $600.00.
Effective July 1, 2010, the maximum weekly rate was indexed to certain labor data:
July 1, 2010: $739.83
July 1, 2011: $772.96
July 1, 2012: $792.07
July 1, 2013: $803.21
July 1, 2014: $808.65
July 1, 2015: $844.29
July 1, 2016: $864.32
On May 1, 2013, the minimum compensation rate was increased to $150.00 per week.
Classification & Permanent Partial Disabilities (PPD) & Permanent Total Disability (PTD)
If you have an injury to your spine or if you have an injury to your limb that is progressive and disabling, you can be classified with a permanent partial disability (PPD) or permanent total disability (PTD).
This has significant meaning under the workers’ compensation law. If you’re unable to return to work at all due to your injuries (spinal or spinal and limb injuries combined) or unable to return to the type of work you used to perform, with the classification designation, you will be entitled to a specified number of weeks of compensation for your injury.
If you were injured before March 13, 2007, a classification with a permanent partial disability may entitle you to weekly benefits for the rest of your life. If you were injured on or after March 13, 2007, your weekly benefits are “capped” pursuant to the table below.
We will fight for you to maximize the LOWEC to ensure that you receive the most benefits that you are entitled to. We will litigate LOWEC with the testimony of the injured worker, corresponding with treating doctors, undertaking depositions of treating doctors, cross-examining insurance company doctors and writing and submitting legal briefs to the Judge.
Loss of Wage Earning Capacity (LOWEC)
Once you have achieved maximum medical improvement, and no further improvement in your medical condition is anticipated, the Workers’ Compensation Board and/or the workers’ compensation insurance carrier will request a hearing to determine your loss of wage-earning capacity (LOWEC). This will determine the length of time that you may be entitled to workers’ compensation benefits. Effective April 10, 2017, temporary disability benefits are now capped as well depending on your medical condition at 130 weeks or 2.5 years.
Our job is to make sure that you have truly reached MMI before this determination is made by the Judge. We will litigate this issue when necessary to make sure that you are not losing the benefits that you deserve. Once MMI has been found, we will then litigate LOWEC on your behalf.
The loss of wage-earning capacity is determined by taking into account your age, education, prior work history, medical impairments and the impact that your injury has on your ability to work, perform activities of daily living, drive, etc.
The following is a table depicting the LOWEC capacity figure and the length of weeks that you are entitled to receive either weekly benefits or reduced earnings if you have not returned to work, are working with reduced earnings or go off of work in the future. If you have a LOWEC greater than 75%, you may be entitled to additional benefits in the future by requesting ongoing benefits in the last year of your scheduled benefits to the Board if you have not sufficiently recovered from your injuries.
Important Workers’ Compensation Forms
OC 110A: Authorization to review a different compensation file
There is no fee for a consultation with our office. In fact, you do not owe us any fee for representing you unless it is approved by an Administrative Law Judge or the Workers’ Compensation Board.
Attorney fees are typically based on the retroactive amount that our office is able to obtain for you in weekly compensation benefits; a nominal fee for an ongoing award, or a fee based on your schedule loss of use, classification or settlement. Unlike Personal Injury cases which are normally one-third (33 1/3%) of your recovery, our fees for handling workers’ compensation claims typically range from 10% to 15%.
Changes in The Workers’ Compensation Law
Since 2007, the workers' compensation board has significantly reduced and modified the benefits payable or do to a claimant. This started in March 2007 with the implementation of the so-called durational CAPS. All injuries to the spine on or after March 13, 2007, are limited in length. This is in direct contrast to individuals injured prior to that date who may be entitled to benefits for the rest of their life. On April 10, 2017, the Legislature once again modified the Workers’ Compensation Law to provide for a cap on temporary disability benefits for injuries on or after that date to 130 weeks of benefits before potentially counting against the durational caps in certain circumstances.
It is even more imperative now than ever before to retain counsel to protect your rights.
Another major change to the Workers' Compensation law began in December 2010 when the Workers' Compensation board implemented the medical treatment guidelines. These cover treatment to an injured worker’s neck, back, knees, shoulders and hands. As noted above, these guidelines determined precisely what treatment is preauthorized and what treatments your doctors must request preauthorization for prior to proceeding with the treatment. It also specifically limits the amount of chiropractic treatment, physical therapy and other therapies to a specified timeframe before the doctors must request a variance to continue to treat claimants. These variances are difficult to obtain and all such variances must document a functional improvement in the claimant’s condition.
If you have been injured at a construction or building site, in addition to a workers’ compensation claim for your injuries, you may have a lawsuit against one or more third parties as a result of your injuries. These types of construction site accidents are governed by a special section of the Labor Law designed to compensate an injured worker for your injuries which are often significant as well as pain and suffering which are not awarded under the Workers’ Compensation Laws.
These awards, under the Labor Law, are larger awards for the individual’s injuries than can be awarded under the Workers’ Compensation Law.
Do I Have a “Third-Party” Lawsuit?
If you have been injured while in the course of your work duties, due to the negligence of a third party, you may be eligible to bring it personal injury lawsuit against the responsible party. These are typical in construction site accidents, motor vehicle accidents, injuries at job sites not owned by your employer and slip and fall accidents.
Our office has multiple experienced attorneys who concentrate their caseload on prosecuting personal injury lawsuits in New York State and other states. Our attorneys are experienced trial attorneys who are well-versed in bringing a lawsuit, undertaking depositions of defendants and doctors and selecting juries to maximize your third-party recovery.
Our Office Policy & Practice
Our office is unique in the Western New York area in that we meet with all new workers’ compensation clients. This allows us to meet with the client personally and take the time necessary to understand their injury. Just as important, this allows us an opportunity to provide the client with the information they need to understand the workers’ compensation process and successfully navigate it.
Many other workers’ compensation attorneys fail or refuse to meet with their clients either at the outset of their case or during their case. We feel that this practice is unfair to the injured worker and puts our office at a disadvantage in representing the interests of our clients.
There are also many times where further appointments with our clients are necessary to go over testimony for upcoming hearings, discuss settlement opportunities, contested medical treatment and other issues. We take the time to meet with all clients we need to discuss these issues with as well as every other client who requests an appointment to go over their case.
Types of Workers’ Compensation Claims
There are three types of Workers’ Compensation claims:
Occupational Disease Claims
ACCIDENT: In an accident type of claim, there is an acute injury that typically occurs at a specific time, date and place. These are your typical workers’ compensation injury from a fall, specific lifting incident, motor vehicle accident (truck, car, etc.), construction site accident, explosion, traumatic loss or injury to a body part such as fractures, breaks, dislocations, tears or ruptures, knee, shoulder and hip replacements, cuts or lacerations, or traumatic hearing loss.
OCCUPATIONAL DISEASE CLAIM: An occupational disease claim is one that arises over time due to a repetitive type of activity/motion or exposure, over time, to a workplace condition such as asbestos or chemicals. These are often carpal tunnel syndrome claims, cubital tunnel syndrome, occupational hearing loss, repetitive office work or factory/plant work leading to back and neck claims and asbestosis and mesothelioma cases.
DEATH CLAIM: A death claim can arise to the family of a deceased worker who was killed in the course of his employment. A death claim may also arise many years after the injury if the workers’ compensation injury caused the death, such as in an inhalation claim, as a consequence of a surgery-related death or many other instances.
Contested & Controverted Workers’ Compensation Claims
If your claim has been controverted by the Insurance Carrier for your employer, we at Viola, Cummings & Lindsay will represent you vigorously to prosecute your case at the Workers’ Compensation Board. We will undertake testimony of not only the injured worker but also any necessary witnesses including your co-employees and employer. We will take the deposition trial testimony of your doctors and the insurance company doctors to prove to the Judge that you were injured at work.
There are two types of hearing loss, traumatic and occupational. Traumatic hearing loss normally occurs when an injured worker has been exposed to a blast or explosion at a specific time and place. This type of case must be filed within 2 years of the event with notice provided within 30 days.
Occupational hearing loss is designed to compensate an injured worker for their hearing loss which occurred over time due to their exposure to industrial noise over their work career. This claim must be filed within 2 years and 90 days from the date they knew or should have known that their hearing loss was due to exposure to workplace noise over time. This claim is filed against the last employer. A hearing test must be performed at least 90 days after the employee retires from the workforce.
If successful, the injured worker will receive an SLU award for the hearing loss sustained calculated using a formula designed by the Workers’ Compensation Board. In addition, and often times, most importantly, the injured worker will receive medical treatment which is typically in the form of hearing aids and batteries.
Dealing with Insurance Companies
We will handle communication with the insurance company. Insurance companies routinely send questionnaires to injured workers requesting information. These forms are designed by insurance companies to obtain information to be used against the claimant to stop benefits, lower benefits or even charge them with fraud, either under the workers’ compensation law or criminally.
At Viola, Cummings & Lindsay LLP, we prefer, unlike most compensation attorneys to handle any and all requested “in-person” interviews and “Alive and Well” interviews in our office under the supervision of an attorney.
We will also advise you as to which questions to answer for the insurance company and which questions we do not allow a client to answer on forms or in person. Insurance company employees are well trained in the workers’ compensation area and all information that they can obtain on you or about you they will ultimately use against you.