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Worker's Compensation 101: Overview of Worker's Compensation, The Injury, The Industry, and the Players

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Worker's Compensation 101: Overview of Worker's Compensation, The Injury, The Industry, and the Players

In this course, we will explore the history of the modern worker’s compensation system, its importance in today’s society, and current issues. We must understand the history of a no-fault worker’s compensation system in order to fully understand the present-day arguments in favor of disbanding this system. We will identify the key major players in this industry and understand their roles, and responsibilities in workers’ compensation. We will also identify the basics of worker’s compensation including accident, notice, and causal relationship. We will identify the appropriate types of indemnity and wage loss benefits. We will discuss permanency and its impact on injured workers. We will explore the meaning of accident, occupational disease. Finally, we will discuss what is like to practice in this area, exploring concerns of work/life balance, diversity and expertise level required to handle such matters.

Transcript

Welcome everyone, my name is Debra Doby and I am a Senior Partner at Vaughan and Baio and the Founder of the Misunderstood Lawyer Project. And today, we're gonna be talking about a area of law that is rarely covered by law schools, which is Workers' Compensation. And we're gonna get into what is workers' compensation, why do you care, and how should you navigate this system if you want to practice in it. So throughout the entire presentation, I want you to take note of my email and also the social media. You're more than welcome to reach out to me at any point in time if you have any questions about this or just in general the practice of a law in general, happy to help with anything. Before we get started today, let's talk a little bit about me. I obtained a Juris Doctorate from Vermont Law School and a master's in law from Trinity College in Dublin. And after graduation I worked for a government agency for a couple years and then transferred to an AMlaw 200 firm and became a partner after only two years with the firm. And the reason that I became a partner very early in my career is that, not only was I very good at my job, but I understood the business of running a law firm, and I was developing and bringing clients from an early stage in my career. At the same time, I started training young associates. And in the process of training young associates, I realized that there is a common misunderstanding or a missing foundation that all of my associates had in common. And they didn't understand the practicalities of working as a lawyer and also operating a law firm. And as such, I used that to create the Misunderstood Lawyer Project, which provides free practical advice for those who are interested in becoming lawyers or those individuals who are looking to set up their own practice. So again, I'm really passionate about making sure that people understand how to actually practice real world law. And so if you have any questions about that, please feel free to reach out to me. In fact, I've been so vocal about the fact that sometimes law school doesn't prepare you for actually practicing law that I collaborated with the College of Law and Design, developed a course for called Law Practice Management, which gives you soups to nuts of how to open your own firm, what considerations you need to take into account, what insurance you need actually, and also how to market yourself and get clients and build your own brand. So if you have any questions about that, please feel free to reach out to me. And I really wanna emphasize that it's so important that you figure out an area of law that you care about and that fits your lifestyle and your work life balance that you want for you and or your family. So let's start talking about what is workers' compensation? Because it is an often ignored area of law, it's not flashy and it certainly usually doesn't present those lovely law school conundrums that law professors like to kind of dive into. This is more of a day-to-day every man's area of law that we really need people to start joining this area of law because it has an impact on people's daily lives. According to the National Safety Council, there are 12,900 individual workers in the United States today that are injured on a daily basis. 12,900, that's a lot of people. That's a lot of people that don't know their rights, they don't know what workers' compensation is, they've largely never heard of it. And they rely largely on their employer to tell them and sometimes the employers don't even know what is workers' compensation or how it operates. So hopefully this presentation will do is it'll give you an idea of what this area of law is about and whether you wanna practice in it. So what is workers' compensation? Workers' compensation is a statutory construction that employers should pay benefits, indemnity, cash, or medical for workers that are injured or contract an illness as a direct result of their job. And it's really important that you note that the illness or injury has to be a direct result of a job or a job related duty. But why do we care? We care because for employees, injuries impact their daily lives, not only now, but also in the future. And I'm talking about like putting food on the table, making your rent, getting your kids clothes to go to school. These are things that they have to deal with on a daily basis, whether or not they can make insurance, car notes, all these things. And injuries can impact an employee's daily life, sometimes minimally like, Hey, you missed a couple days of work, to severe injuries. And let's take for example, an undocumented worker. Now we all know that undocumented workers have limited opportunities to secure jobs and they're usually heavy manual labor or they're long hours on your feet. So if you suffer a serious injury as an undocumented worker, your ability to go back to a heavy manual labor after getting a spinal fusion is severely limited. And so that injury is going to impact you on a daily basis, not only in terms of getting to and from your medical appointments, dressing yourself, taking care of yourself, the stress that puts on your family, but also the ability for you to pay for your rent, your housing, your kids' education, or anything like that. And so what's really important that you understand about worker's compensation is it does not make a person whole, it is simply what we consider wage loss replacement. And so we simply try to correct, we're not gonna fix the problem. And so employees typically do not understand their rights, they typically do not understand how to even apply for benefits, what benefits are they owed. They typically, if they're being asked by a physician to pay up front, they will typically skip treatment to their detriment. So this is an area of law of where 12,900 people a day are being injured and they really need representation. If you wanna make a difference, this is a really good area in which you can. On the flip side of that, we have the employers. And employers, there are direct and substantial costs for employers. Employers are required to obtain insurance for workers compensation or funded themselves if they're a larger employer. But these costs can't be passed onto the worker. If your worker gets injured, you can't dock their pay because they got injured. Also, you may have great safety programs that the workers don't follow and you'll still be responsible for any injury that occurs. So employers also find themselves that they're not quite sure what worker's compensation is, what are the employer's rights to defend a case, and should they be paying out everything or nothing? And they don't really understand the difference between an injury occurring on their premises when they're liable or when their insurance carrier is liable. And so again, this is an area where employees and employers alike both need representation and it is an area of law that offers a lot of benefits for you to practice in. Now, in order to understand worker's compensation today, you really need to understand the history, because to perfectly honest, you can't understand anything in life until you understand the history. You can't understand present day until you understand the history. And without that understanding, you're not going to realize why the workers' compensation benefits are like that. And so right now there is a movement in the United States to try and shift workers' compensation, get rid of workers' compensation, no fault schemes, and make them into different sorts of schemes. So you need to understand what has already been tried before people start go mucking about and changing it. So let's start off with the fact that we as humans understand that the concept that an individual has to pay for a bodily injury that they caused to another has likely existed before the written work. We do know that the law or back in 2050 BC provided a specific monetary compensation for people who were injured on the job and that even included a fracture. Fast forward to the Code of Hammurabi in 1750 BC provided very specific monetary values for not only workplace injuries but other injuries as well from just mild injuries like missing a finger to the loss of life. And there is a specific monetary distinction that was made whether the person that was injured was a man, a woman, a pregnant woman, a child, or a slave. And obviously the monetary value went further down as you went. But when we move forward in history towards the Middle Ages and you see the introduction of fabulism, that we see the disappearance of these like strict compensation schedules and it becomes more of an arbitrary system by the few lords to decide whether or not their injury or death would be compensated or not. And so because of the United States, we are based on Common Law, and in particular English Common Law, we're gonna focus on England and the development of workers' compensation in England. And what you have just to understand in the Middle Ages, basically the futile lords would decide whether or not an injury should be compensated. But over a period of time, as we changed from a agricultural society to a more industrial society during the period of the industrial revolution, you were seeing that loads of people were flocking to towns, flocking to cities, and just there was, the laws could not keep up with the innovations that were happening on such a rapid pace during that period of time. Why is that important to know? Well, because not only were people flocking in, you had unsafe crowding conditions, so there were lots of slums, but you had unsafe working conditions in these new factories. Factories and automation of certain tasks was a brand new thing and people really didn't even know what was safe or unsafe. And of course they learned over time, but there were certainly no regulations, there were no laws to protect workers and keep them safe, it just wasn't a thing. And so you start seeing where there was a Marxist or socialist rise during the period of revolution where people were fighting for workers' rights, they were fighting for workers' safety, and they were fighting for a worker's compensation system that would pay people who were injured while at work. And it really devolved that if you were injured at a job, your only right to sue was basically limited to the use of torts. And that was not only expensive but also cumbersome. And if you even could afford to get to wait the year or two years that you finally get you to a trial, most of the lawsuits were thrown out due to three common law defenses in torts at that time. And these three common law defenses that we'll get into were so restrictive, they became known as the unholy trinity of defenses. And the first one was contributory negligence. If the worker was anyway 1% responsible for his injury, the doctrine contributory negligence held that the employer was not at fault and dismissed the case. Now I wanna make a strong difference between, there is still a common law doctrine of contributory negligence today. It is vastly different than what existed back in the 1700s, 1800s. But you need to understand that contributory negligence was that, if the person was 1% responsible for their injury, then the employer was found not to be held responsible. Again, under the Fellow-Servant Rule, if another employee accidentally caused a person to be injured, the employer was also found not liable. Under the assumption of risk, a case was dismissed if the employee knew of hazards of a particular job, when they signed on as and they contracted to be part of the job. So for example, if you signed on with a company to be a minor, you knew that as a miner there was a risk of a mine collapse. And so if you died because of a mine collapse, that's your own problem. You knew that was a risk and you should have just gone to get a different job if you didn't want to take on that risk of death, which is crazy. It's not like at that point in time people were just like, oh hey, yeah, I've got plethora jobs to pick from. I could just go anywhere I want. It didn't exist at that point. And in addition to that, employers at that particular time, if they were doing any type of industrial action or mining, they would require people to sign contracts. They're workers, if you wanted to come work for them, you had to sign a contract that basically said, Hey, I waived the right to sue you for any risk of injury or death. And that really left the person that was injured or their family if the person died, with no recourse. And those contracts later became workers' right to die or death contracts. And they were routinely upheld by English courts. So it wasn't until basically 1871, that in pressure that there was a modern no fault workers' compensation system that was developed. And of course it wasn't done out of the goodness of their hearts. It was a form of political oppression to quell a Marxist and social movement that was happening in that country at that time. But what was so fundamentally interesting about the system in Prussia, was that not only was it state administered, but it was the exclusive remedy, which meant employers could not be sued through the civil courts. Now, at the same time Prussia is doing that, there are movements inside England pushing for the adoption of a no fault workers' compensation system as well. And that didn't even occur until 1897 in England. And at the same time, there's these huge movements to push everybody towards adopting a no fault system to compensate people for injuries at work and to push for additional safety measures at work. In the United States, the United States public is demanding these changes, but they wanted a federal workers' compensation system that would cover all 50 states. So there wouldn't be this hodgepodge system of one state having workers' compensation benefits, that would be radically different from the state next door. But the federal government repeatedly declined and was like, Hey, we're not doing that, that's left to the states, we're not doing any that. Now, the federal government did eventually create a federal workers' compensation system for federal employees and for other people under federal law. But I basically, they left it to the states to determine whether or not there should be a worker's compensation system in that state and what that compensation should be should be determined by the states as well. So now, not only are labor unions that we're forming at this time, but also employers we're very concerned that having 50 different workers' compensation schemes is going to lead to unfair competition, allowing one state to have no workers' compensation or mild workers' compensation and this next day of being heavily regulated. So even the employers held a conference in Chicago in 1910 to kind of outlaw like uniform set of guidelines that should be adopted by states if and when the states wanted to do that. But still, it kind of just kind of languished. The states weren't really interested in kind of taking on this responsibility, they just kind of kicked it down the road. And as in most cases, a tragedy had to occur to galvanize change. Now I practice in New York, so all the examples that I use in this entire presentation is gonna be from New York. I'm not licensed any near the jurisdiction, so all of my examples are gonna be from New York. Just so you're understanding why I picked New York as, and I keep referencing, and I'll be referencing New York cases as well. I'm just trying to stay in the lane and talk about what I know. So in New York in particular, New York did not implement a worker's compensation, a modern worker no fault worker's compensation scheme until 1914, and that's really after the New York Triangle Shirtwaist Fire occurred and the public outrage that came in from this. And at this time in New York, you have to understand that working conditions were not optimal, is the nicest way to put it. It was norm to work in a sweat shot, usually had low wages, long hours, unsafe working conditions. But in this particular one, the public outrage that came out after this, and we'll get into why in a minute, but the public outrage that came after the New York Triangle Shirtwaist Fire it directly galvanized not only safety to be instituted for workplaces, but also to implement a no fault worker's compensation scheme in New York. So in 1901, there was an employer called Blanck and Harris that moved into the New York City Garment District and they occupied three floors of the building. And basically they ran Sweatshops. They hired young immigrant men and women, age range from 10 to 30 years old. They worked low, low, low wages and long hours, usually 10 to 12 hours, and they're very unsafe working conditions. Now, I highly encourage you to go check out Cornell University. They have these wonderful links that give you pictures and a history and a timeline of the incident that give you a sense of what actually happened here. But when I say unsafe, crowded working conditions, let me try to give it, it's something that you'll understand. Imagine for a minute that you were sitting in your classroom. And take out all the tables and all the lecture turns from your classroom. And what don't you do is I want you to imagine walking into a room where the door barely opens and you can step into the room. And as you step into the room, you are immediately hit by a table and the table is wall to wall. So you can literally, if you turn sideways, you can kind of scoot by the table and it goes all the way to the other wall. And then there will be 10 to 15 depending on the size of those tables. And the amount of space between the table is just enough. If you suck it in, you're able to kinda skate through. At each table there will be anywhere between 30 to 40 sewing machines and there will be one in front of you and one in front of, and there will be a sewing machine directly in front of you that belongs to another person. And then if you just lift your right elbow, you have already hit the other person's working station. That's how crowded they were, that's how much room they had to move. And then of course they were working the garbage industry, which means that there was loads of clothing scraps, oil everywhere. And then these particular employers, Blanck and Harris had a tendency to lock the doors. And so as soon as the shift started, they didn't want people walking around and talking and wasting their time, they wanted you to come in, sit down and not move for 12 hours. For those individuals who ended up getting up more than usual, they used to lock them to their tables as well. So the working conditions were very, very poor. It was not ventilated well, there were water buckets but they were empty. And of course, a fire broke out one day on March 25th of 1911. And the fire rapidly consumed all three floors. The doors were blocked. They found later that there were huddled masses of women that were by the door with the chains being locked and them trying to break the chains. Some women chose to lip out of the eight story room to their death to avoid the flames. And then there were horrific firsthand accounts of people who were walking around New York, their skin crisp burn and literally falling off and people passing out and dying from the injuries. And because it was so well photographed, because it was so, so horrific and you could see the devastation, it just galvanized the public. They were just so furious about it. And there were so many demonstrations about the poor working conditions. And so very rapidly the employers were indicted on April 11th of 1911. Fast forward very rapidly, December 4th of 1911, their trial actually begins and then nothing. Until 1914, the lawsuits end and basically they walk away with a slap in their hand for locking the doors, because in all essence, they hadn't really broken any actual regulations or codes because none existed regarding safety. But what kills me is that in 1913, just before the lawsuits actually ended, they were again warned against safety violations, because they started locking the doors again, and they again had empty water buckets. And so it wasn't like these people were learning, they felt terrible about the accident and they changed their ways. No, they were continuing to impact and provide unsafe working conditions for people even back then. And so when they walked away with a slap on the wrist, everybody, and I can just roughly say the public in New York was incensed, they were furious. And that led to what we call today is the Great Bargain and or the Grand Bargain, whichever one it happens to be. But the Grand Bargain is, for all 50 states, is that you are setting up a no fault modern workers' compensation system. It will be run by the state, and it has three basic prevalences. It means that you have, that injured employees can no longer sue their employer directly in civil courts, but that means that it's a no fault system. So more injuries are going to be accepted. There are severe limitations on the employer's ability to contest claims. And they also are providing faster indemnity benefits and faster medical benefits. So in a civil court where they may have to be funding their own medical treatment and go without any wages for three to five years while they're waiting for a lawsuit to come out, some of them even took 10 years, like a common defense by employers at the time was just to wait 'em out. So now with the no fault system, you're getting benefits in weeks or months rather than years. And that was a big huge change and a huge benefit for employers, I mean, sorry, employees. Now I have to say one thing is that labor unions and everybody was fighting for there to be one federal system of workers compensation and that just simply didn't happen. Today we have 50 different states and 50 different workers compensation systems. So states developed and implemented not only their own workers' compensation statutes, but they also developed their own standards, evidentiary rules, litigation rules. And so it's going to be different whatever state that you happen to be. But there are common structures that are kind of the same amongst all 50 states. Number one, it's a no fault system. Meaning that it doesn't matter whether the injured person had contradictory negligence or helped or caused the injury. There are some states that have exceptions for intentional towards and intentional towards where a person starts a fight. But that's really very limited exception. This is no false state. For me, I had a case last week where a individual was working in a grocery store. He decided, him and his best friend were talking and his best friend was like, "Hey, I challenge you to stick your hand in that meat grinder." And the guy said, "Sure," and stuck his hand is meat grinder and his hand was promptly cut off. And so the employer was asking, "Well, hey, we have safety measures. He removed the guard, he ignored all of our safety. Can we contest the claim?" And the answer for New York was no, because we don't care if his stupidity caused the accident, we care about making sure that the person has the indemnity medical treatment they need due to a accident at work. All through the states are also exclusive remedy, which means an injured worker cannot directly sue the employer. The employer... So worker's compensation is fully funded by the employer as a cost of doing business. They can't pass on the cost to employees. The employer has to have a commercial insurance program or set up a self-insurance count, which is means you fund your own insurance. But it has to be funded by the employer. And it's mandated by the state that employers have workers' compensation insurance. Usually they have set limits that they have to have depending on the industry that they're in. And they will be assessed penalties or fines. And sometimes it seems significant for failure to have the appropriate insurance. In New York, if you don't have workers' compensation insurance, they will issue a stop order, which means that you cannot enter premises or operate any business out of that premises until you obtain workers' compensation. In New York it will also limit your ability to apply for public contracts if you don't have workers' compensation insurance. And additionally, the right to sue in towards is limited to third parties. And what that means is third parties are who may also be responsible for causing an injured workers on the job injuries. But the injured worker can't keep both monies. If he gets money from, let's say the owner of the building that also was responsible for the accident, he has to pay some of the money back 'cause he can't get double recovery. So if he got money in worker's compensation, let's say it's $100,000 and he gets 500,000 from the general litigation lawsuit against the owner, he has to pay back that lien of $100,000. And the worker's compensation has rules about how to pay back the liens, but that's not important. What's important is that there can't be double recovery. You can't get workers' compensation and then just go get additional money from, the liens do have to be repaid back. Now that you understand like the basic structure of workers' compensation, what you really need to understand is the players in workers' compensation if you're gonna operate in this space. And to start off is that you have to understand that workers' compensation is a statutory construct. That means each state determines what is considered a workplace injury, what is not considered a workplace injury. And they will have a statute that defines accident notice, calls a relationship, but they will create either, it's gonna be called a workers' compensation board, workers' compensation authority, workers' compensation administrative agency. They're going to create a state agency that will run and promulgate regulations to run a worker's compensation statutes. Which means that the state agency will have its own adjusters and its administrative law judges to assess claims, to make decisions to issue regulations or rulings on what forms should you use to file? How should you notify the state that you've made payments? So the state is always going to have a state agency that runs all of the workers' compensation. So when you say you're going to file a claim, you're not filing a claim in civil court, you're filing a claim through the administrative law section of that state agency. And every state will be different, even the forms that you use. So for example, in New York, you an injured employee would file a C3 form called the first report of injury, whereas in New Jersey you would file a petitioner's report. So it's different. The contents are the same though, but there's going to be different requirements for each state. So my first recommendation to you is always go to state agency. Always go to the state, for me it's ny.wcv.gov. And always look for that .gov sign at the end 'cause that's, they use the official state agency. There's a lot of random websites where they may try to confuse you, but if you look for that .gov, that tells you how to file a claim, how to defend a claim, what are your defenses and your timeframes. So then you have the employees that are injured. The employees are typically required by the state to report their claims to the state worker's compensation agency. Employers are also mandated and required to report injuries to the state worker's compensation agency as well. And so what you should have as employee gets injured, they get a claim from the employee, the employer gets notice of an injury,. and so then a claims established because you've got two people saying the same thing. Where it gets a little bit complicated is that employers aren't notified of injuries, employees just file claims or employers are notified and the employee never files a claim. So you do have those kind of instances where that happens. But the other thing you need to understand is that employers are required to report that a claim happens. And they have to report it to their state agency and also their insurance carrier. Employers are required to have a insurance policy that specifically covers workers' compensation or workplace injuries. Those insurance policies are handled by insurance carriers and the cost will depend on the type of work actually being done. The insurance carriers typically do not handle the day to day claim handling. They typically pass that off to what's known as a third party administrator. Why are third party administrators are even involved in this? And the answer is because there are 50 states, there are 50 workers' compensation systems. And if you are an insurance adjuster handling workers' compensation claims, you have to be licensed in a particular state. You have to know the rules and the regulations surrounding that. It's a very narrow area of the law and you've got to know what you're talking about. So there's all these licensing requirements. And it becomes too much for certain insurance companies to handle on a day to day basis and they farm it out to third party administrators that would have the expertise in workers' compensation to handle all these various day-to-day tasks like filing the claim that the person got in, notifying that they were getting paid, notifying them that the injured worker went back to work. All these kind of things back and forth. And then you have the attorneys that influence the process as well. And so first and foremost, employees can be represented. Usually they are not paid directly, but they would be hired as injured workers attorneys. And injured workers attorneys usually then take over the case and manage the claim for the employee. And the employee simply goes and gets treatment and does what their attorney tells them to do. If you have a good client, sometimes you don't. But the injured worker attorneys then are responsible for communicating with the insurance carries, third party administrators, the employers about the person's progress and how they're doing and payments and all this kind of stuff. Defense attorneys enter the process when there is a dispute. So I would say probably 85% of the claims in workers' compensation are undisputed, they're accepted, they're paid for, and they are handled by a third party administrators and they're rarely assigned defense attorneys. Defense attorneys represent usually the insurance carrier or the third party administrator. And by association you're representing the employer. But what's key about defense attorneys is you're really representing the insurance policy. Only rarely are you actually representing directly the actual employer. And then you have other people that are brokers that handle workers' compensation insurance, but these are the main players that you have to understand. And so when defense attorneys enter, usually there is a issue over the credibility of the injured worker or there is an issue over notice to the employer. So there is a problem with the claim by the injured worker and as such, defense attorneys are assigned to basically defend the case, because there are some fraudulent claims that are filed. And so people are saying that they're injured in places where they weren't employees and honestly some of them weren't even physically present when they said they were injured. So there's all that. The final component that you need to understand is risk management. And risk management is basically a new field in the past, probably 50 or so years that has kind of risen out. And smaller employers don't really handle any or familiar with risk management, but larger employers do. And what you have to understand about risk is basically, risk is anything that can negatively impact your bottom line or if you're on the plaintiff's side, can impact your plaintiff's case negatively. So all employers are responsible for providing a safe work environment for the employees per federal law under the OSHA, which is Occupational Safety and Health Administration. But there are also state safety in health regulations as well, as well as Department of Labor regulations that all the employers have to comply with. And that's what comes out of having to have these things, signs and postages on your walls and that kinda stuff. But risk management is the concept that employer should have a proactive approach to minimizing injuries, accidents, and controlling your costs. So not only do accidents injure employees, but they lower employee morale, they lower productivity. And so risk managers are hired by larger employers to not only implement but also oversee a workplace safety program. Because really and truly at the end of the day, being proactive and making sure someone doesn't get injured is kind of the best benefit than trying to be reactive in controlling costs once a person is injured. So if an accident occurs, an employee's going to file a claim with the employer who should report it to its insurance carrier. The insurance carrier will determine whether the claim is accepted or denied in part or in hold, because it's going to be dictated by the terms of the policy and what was reported to them. And of course then it depends, if the claim is accepted, then it proceeds. Whether the person is represented or not, the person gets paid and usually returns to work quickly. There are issues where you have litigation proceedings where the person stays out longer than anticipated and then that's when the referral to defense counsel happens. And this really depends on the state. And most states have a separate administrative process for handling this piety claims, like we said, including their own appeals process. So in New York we have our state agency, which is the New York Worker's Compensation Board, and then we have our own internal appeals process. So we don't go to civil court at all until our appeals process is completely exhausted. And we'll get into that in just a second. Once our appeals process is exhausted, then some states allow for parties to bring the appeals to the state court system. And that depends on the state as to which one you're allowed to do. So for in New York, in a hearing, if we have a disputed issue, we go to a hearing, then we have an administrative large decision. If we appeal that, we get a three member workers compensation administrative board panel appeal review. And then if we lose there, we can go to a board panel five member review panel. If we lose that, then we can go directly to the third department appellate division. But we can't go to the first department or the second department, we are limited to the New York third Department appellate division. And then if we lose there, we can go to the court of appeals. But we don't start off at the Supreme Court level, the lowest court level. We start off at the appellate division, but in a particular district. Whereas in some states, you go to the lowest court and then you work your way up through the lowest court. So it just depends on the states. You need to check out to see what the statutes allow and what are the regulations allow. And here's kind of a diagram of how this actually works. So if an injury gets an employee, the injured employee and the orange circle needs to notify the state and the state sets up a claim. Same time the the injured worker should be notifying the employer, which doesn't always happen. But then the employer notifies the insurance company and then the insurance company is responsible for setting up a claim. Some states require the employer also to directly notify the state, but usually it's just, hey, notify your insurance carrier and the carrier has a responsibility to notify the state. So the state sets up a claim. And if it's accepted, well, then depending on the state. In New York there are regulations that require, the claimant to file medical evidence. As soon as that medical evidence is received, the insurance carrier is required to automatically start indemnity benefits to them for accepted claims. And then it proceeds down where the claimant either returns back to work, you can settle it or you may have a dispute over, if the person remains out of work or whether the person could return to work, or whether or not they have a permanent disability. And then of course you can appeal to the state and go back and forth. And then eventually the claims usually end up in a settlement, you do have a couple that just continue to languish. But let's talk about if you have a denied claim. The state sets up a claim and then you're at the red box, which is a denied claim. And now this varies by state greatly, but typically an insurance company must accept about prejudice or deny it for a good faith basis, which means you've gotta have a reason for you denying the claim. Once the claim is denied, the parties adhere to each state's specific procedure rules for litigation, which usually involve testimony of the injured worker, any related witnesses, medical testimony, and then ultimately results in a decision from the administrative law judge of whether the claim is established or denied. If it is found to be established, it's usually called compensable. That means the injury did occur, they believed the claimant, and then it will be treated as an accepted claim. And you go back to whether you should settle return to work or have a dispute over ongoing medical or permanency benefits. If it's disallowed, then the injured worker is allowed to directly appeal that through the internal processes and then also go to the state level as appropriate. Now the one thing you have to understand in worker's compensation is that we have a lot of acronyms and it's just really annoying. But it's a way for the judges to understand whether or not you are a, as we call an industry, a tourist or a person that actually knows what they're doing. So here's an example for New York. We routinely refer to like, hey, you can set the ANCR as back right knee leg. ANCR is an acronym that stands for Accident, Notice and Causal Relationship. Why do we say, hey, you can establish for ANCR? Just basically time and laziness. I mean, that's pretty much it. We also use acronyms for AWW for average weekly wage, WEC for wage earning capacity, PPD for Permanent Partial Disability, and on and on and on and on. And each state has their own acronyms. So you need to basically look, go to the state's agency websites, look up to see what acronyms actually are used in your states so you can sound like you know what you're doing. Now, who's entitled to worker's compensation? Basically any individual injured during the course of scope of employment, as long as the individual meets the state's definition of an employee, the injury occurred during the course of scope of employment, and they're not part of an exempt class. So again, this is really gonna depend on the state. But what's most important is that you have to meet the state's definition of employee first and then you figure out if there's any exceptions. So in New York there are exceptions. If you are a livery driver, there are exceptions. If you are a jockey or a volunteer firefighter because there're separate state statutes and separate systems that deal with those individuals. So that takes you kind of out of the realm of the general workers' compensation and into a different area. And so you just need to understand that usually the injury or an illness has to be contracted during the course and scope of employment. Employment is the main thing that's important. An injured worker may be called different names depending on the state, which is injured worker, petitioner, plaintiff, claimant, employee. Whatever it's called, you just need to know the terminology that's appropriate for your state, again, so you can sound intelligent and the fact that you've researched it and you know what you're talking about. You can be for an accident, which is a specific incident like something happened. So on a particular day, you got hit with a hammer, you fell down, you got run over by a bus, something happened very specific. An occupational disease means that it is something that occurred as a result of your employment, but over the course of time. And that means, a good example of that is if you're a sandhog, dig in subway tunnels in New York, you will develop silicosis, which is sand gets in your lungs and tears with down and causes breathing problems. So that is a result of your job because you're down there digging. And with the fumes and the sand and particles flying around, you've inhaled that because of your work. And over the course of time, it causes breathing problems, it can cause certain types of cancer. And so once you know of, should have or could have known that the occupational disease that you've developed is possibly related to your employment, then you get the chance to make a claim for that. So an accident is something on a specific day, occupational disease means it develops over time, but it's a product or nature of your employment. So now how do you follow workers' compensation claims? It just depends on your state. In New York, there is a specific form called a C3 called employees claim of injury. And you would fill out that form, sign it, and submit it. And it does not have to be notarized. It can be filled out online, it can be filmed out by hand, it can be written in crayon, I've seen that. So there will be a form, again, go to that state agency website and follow the instructions. There's gonna be very specific instructions and regulations on how to file a claim. It's laid out for you. It's made as simple as possible because a lot of people are not represented in the very beginning. So the state agencies take great pains to make sure the employees know their rights so they don't lose certain benefits. So what is a claim? Well, I keep talking about, oh, a claim is established, but what is a claim? A claim is simply a request or a notification that, hey, I got injured and I need indemnity or medical benefits because I was injured on the job or I have an occupational disease because of my job. And you file a form or a complaint or a pleading that is specifically created for the state's workers' compensation system. And I wanna make it clear that, again, you're filing through a administrative state agency, not through the civil courts. You have to be aware that there are not only statute limitations that can be quite strict. Some require you to report within three months, some give you longer ones, which is two years. In New York, it's two years for you to file with the worker's compensation before you lose the right to file. And then you have jurisdictional series. Most states require a nexus or connection with the state to follow worker's compensation claim. It depends on the state on how strong that connection has to be. Typically, if the person lives there, you can file a claim even if the injury happened somewhere else. If the accident occurred there, you can file there even if the person lives somewhere else. But if the person was traveling through and the accident occurred on the border between two states and they wanna file in New York, but really the accident happened in New Jersey, then you're gonna have a problem with jurisdiction because there has to be some connection or nexus, not just passing through. So every state has specific notice and filing requirements. The exact notice of filing requirements do very greatly from state to state, which means you've gotta provide notice to your employer. Typically within 30 days, some give too much 60 days and it can be written or constructive. Now what does constructive notice? Constructive notice means that the employer wasn't told about it specifically, but they knew of it. So for example, if someone collapses on the job site and ambulance is called and takes that person away, that's constructive notice, everybody knows what happened. Like the collapsed person doesn't have to get up right then and there and say, Hey, I'm injured, I collapsed today. That's crazy. That's constructive notice. Then you have to file. So notice to the employer does not constitute filing with the state, and that is two separate things. Notice to the employer is just simply letting them know that an injury occurred so they can fulfill their obligations to the state. Filing with the state is a separate requirement and there are specific, varies greatly by state, but again, it could range from six months to two years for you to file a claim with the state. There is a course... So in New York, if you notify the employer, even if the employer notifies the worker's compensation board, if the employee does not make a file with the state within two years, they can waive the ability to make a claim. And then there usually has to be some sort of medical evidence that says, hey, he was injured and his injuries that I'm treating are related, closely related to that injury that I've just described. So there has to be notice filing and medical evidence of Causal Relationship. Those are basically the notice of filings of almost every state. What is an accident? An accident depends on the state, but it usually has to be that there is some nexus between the injury employment and it's usually defined as a rising in and outta the course and scope of employer. An example would be if you are using hammer, you put a nail through your finger at work, there you go, that's an accident. So it's just something very specific. Examples of injuries are anything really beyond first aid, and that could be bending down, lifting something, pulling something in your back, you can slip and fall, it could be a mental stress lane, it could be a motor vehicle accident, an object could fall on you, it could be you got into a fight, you punched a wall 'cause you were mad. What is an occupational disease? Again, we already covered this, but it's generally an illustrate condition that's related to employees industry or occupation, Asbestosis, COPD, carpal tunnel. And what are the benefits that they're entitled to? They're entitled to indemnity medical and funeral costs or death benefits. And these are what they're entitled to, but what they're actually entitled to varies greatly by the state. So basically, and under indemnity benefits and indemnity is fancy word that just means cash benefits and they are for lost time and wages. They are wage replacement benefits while a person is temporary out while recovering. Then there are permanent cash benefits, which can be lump sums or ongoing payments for permanently disabled people. Medical benefits refers to the payment of medical treatment. And typically injured workers should never pay out of pocket for medical treatment. It should almost always be directly billed to the workers' compensation insurance carrier. If you have injured workers that are paying for medical costs to outta their benefit, check with your state, but usually that's a big no-no and shouldn't be happening. If a person dies or has funeral costs, the majority of state programs have specific benefits that awards a certain amount of cash for a person to cover a person's funeral and or death benefits. Now what is indemnity? Indemnity benefits are typically not taxed, but they are based off of the average weekly amount that a person earns 52 weeks prior to the injury. And it depends on the state as to how those benefits are allowed. In New York, it depends on whether or not you're 50% disabled or 100% disabled from work and that will lessen the amount that you get paid each week. So the more you have the ability to work and return to work, there's that incentive to push you back to work. But in other states you just get a set amount until you're back to work. So it really just depends on the state. In terms of medical benefits, you get medical visits, occupational therapy, physical therapy, medication, surgeries, anything that you can that is basically reasonable medically necessity to help your condition is usually what you're entitled to. Now each state will classify injured workers as temporary or permanently impaired and the benefits will change based on the fact whether a person is founded at temporary, which means that your condition hasn't settled. When you're permanently disabled, it means that there's no further treatment to help you, you're at status quo, you're kind of done. And so in terms of impairment, the state specific guidelines could award aspecific number of weeks for a specific body part like a schedule loss of use where you cut off your pinky and then you're owed. If you have an amputation of your pinky, you're owed 12 weeks. That's however much you earn and that's how much money that you'll get for your pinky. So other states have something called wage earning capacity like New York where we look at your social, educational, vocational, language speaking abilities. And then we figure out what are these medical restrictions you have? What impact does those restrictions have on you actually getting another job? And we pay you based off of your wage earning capacity. General exceptions to workers' compensation, which you really need to understand is that railroad carriers are covered by the Federal Employer's Liability Act. US government agencies have their own Federal Workers' Compensation Act and that's handled under the Department of Labor and the Office of Workers' Compensation Program. Farm workers, it really depends on the states, but most states have a blanket exemption for employers providing workers' compensation benefits to migrant or seasonal farm workers, and that just kind of depends. And then some states also limit and worker's go benefits to meet the same definition of employees. So if you are a casual labor, which means that you're a nanny that works under 40 hours a week, or if you are a gardener that comes through, does mowing and move on, that's casual labor, that's not enough for you to claim workers' compensation benefits. If you were a person... So we had a claim last week where a person was hired by an owner of a house to come and mow their lawn and they came through twice a week, mow the lawn and left. Well, they were injured mowing the lawn. And he filed against the owner as their boss for workers' compensation. And the law basically said in New York, like the owner is not your boss, you're an independent contractor. They don't tell you when to show up, they don't tell you how to mow the lawn. That's you, you decide that. So yes, you were injured on the job and you can file a worker's compensation claim, but it would have to be against your company if you're the sole owner or whomever he works for. So there's always those kind of little indications of what falls in as a casual laborer or not. Federal workers' compensation systems we're not, it's outside the scope of this, but I did want you to let you know that there are systems that are managed by the Department of Labor Office of Workers Compensation Programs that are federal, but they're employer funded insurance policies as well. That's Longshore Defense Based Act and Jones Act. And you may be saying like, Hey, you haven't talked about Social Security Disability. And the answer is because Social Security Disability is different from workers' compensation. Social Security Disability is a social insurance program run by the federal government. Under Social Security Disability, workers earn coverage for benefits by working and paying Social Security taxes. If you never paid Social Security taxes, you can't claim Social Security Disability. You only get Social Security Disability if you are in an insured person, which means you worked long enough and paid enough into Social Security to warrant receiving disability benefits. Now a person can be disabled under a Social Security Act due to severe medical condition, but it doesn't have to be work related, it doesn't have to be incurred. And also the Social Security Disability definition of disabled from all work is different from the state Worker's Compensation Program. So don't confuse Social Security Disability and state. Don't think just 'cause the person is disabled according to the Social Security Department, that they are disabled according to the Worker's Compensation, they aren't. It's two separate systems and you have to treat them as separate. There is a small relationship, because if you're getting paid under comp, there may be an offset in terms of the money that you can get for Social Security Disability, but that's pretty much the only crossover between the two. Now third party lawsuits, I've already discussed this, but basically injured workers can't sue their employer directly. They can sue other entities that were directly or indirectly responsible for their injury. A great example is in New York, we have a Labor Law 240 that provides, there's a statute called Labor Law 240 that provides strict liability for any falling object that hits a worker, but it doesn't place that on the employer, it places it on the owner or the general contractor that was running that whole operation, if it's a construction site. So that means that the injured worker had a separate action under Labor Law 240 to go after the owner of the building or the general contractor and say, Hey, you should have made sure that I was safe and you didn't, you failed your job. And so you can sue other people, but you do, as I said before, you do have to repay part of the lien. Now hearings are typically conducted before administrative courts, administrative law jury. Some states have very informal settings. Like in New York, I mean, you walk into a room and it's a table and the judge is two feet within you and the claimants come in looking like they're hobos and sometimes the attorneys look like hobos as well. So it's very informal, it's not really where you... But other states are very much, you enter a, looks like a courtroom proceeding. You have trial and testimony, the judges behind a bench and you have a much more standardized litigation setting than some others. So it can be really informal and otherwise it can't be. I do recommend that you never dress like a hobo. You should always dress in a suit or a nice outfit that you would wear to work as if you were going to civil court. And typically there's a higher volume of cases. But whereas in general litigation, you don't really do any testimony of physicians, there is a ton of testimony of physicians in workers' compensation. You really get to understand medical conditions and how to suss out medical records and doing medical record reviews. I mean, you get phenomenal at doing that really well. What is practicing a workers' compensation like? Well, that's a great question, because it does provide a better work life balance. I think on the plaintiff side you can do flat fee arrangements or it's a percentage based off of the workers' competition board. For the employer side, you could do flat fee arrangements or you could do a billable hour. It is steady work, again, 12,900 people are injured. The only time that our industry has really been affected by the economy was COVID-19. And that's the only time that our industry saw that since nobody was working, there were almost no injuries. And the typical hours are 9:00 to 4:30, which is lovely. It usually means that you can drop the kid off to school and pick 'em up. So you're usually able to fit more of your personal life around. The challenges is that if you're representing injured workers, I'm not kidding about the real impact of the daily struggles of them trying to put food on their table and making their rent, and sometimes they try to make that your problem. Some people call you, they threaten you, they scream at you, they cry, they come to your house, they break down in front of you. And that is a huge emotional toll if you're working from the plaintiff side. From the employer defense side, it is, not only are you reviewing a lot of medical records, but you're also having to counsel the employer that is also incredibly upset, especially if it's a fraudulent claim or the person can return to work and is refusing to. So there's a lot of emotions that you have to deal with, it's a lot of... Because this is, it is personal, it impacts them directly, they care. And so it's a lot of counseling people through and making them understand their obligations and what the law allows and what it doesn't allow. And that's for the plaintiff side as well. It's a lot of time spent coaching them through what is allowed, what the law can do and what it can't do. I mean, when I was representing plaintiffs, they would be looking for million dollar settlements and million dollar settlement. They bring in newspaper articles and you had to take the hour or two hours out of your day when your work is piling up, that you had to explain to them that this isn't feasible, this is why, and you have to walk them through it. And sometimes it's really not only difficult, but time consuming. And it's a conversation that you don't just have once, you have 100 times, and I mean, with the same person, because they don't get it. And when I say that injured workers need representation, 90% of the time they do not have the, they don't understand the system and they don't understand why is it different than what they see in law and order? Why is it different from civil court? And they don't understand the difference that this is a statutory program. Your benefits are limited by the statute. And so a lot of education is spent from both sides trying to explain what's happening. But overall, to me, in terms of me handling general litigation and workers compensation, I find that worker's compensation does provide a better work life balance. And when you're representing workers, it is extraordinarily high volume and that's where you make your money. But you have to make sure that you secure basic information. And sometimes you find that the plaintiffs don't have the information, like who's your employer? That can sometimes be very complicated, especially for undocumented workers, they get picked up off the street. Sometimes they only know like, Hey, I got picked up in a red truck and my boss's name was Jesus and that's what you have to go off of. How an injury is occurred. You have to do with the fact that there's English as a second language for a lot of your clients. And you communicating through an app, is not necessarily useful and sometimes you you need a translator. And you cannot rely on the daughter or the relative who speaks to translate for you, because you don't know what spin they're going to put on it. You need to understand that your words are being translated directly, so you've gotta have someone on your staff that can speak whatever language they're doing, may be your client needs. There is a lot of issues that are regarding client attorney privilege waivers. You've gotta be really careful about this, because keep in mind, attorney client privilege stands unless you wave it. And you can unintentionally wave it. You can unintentionally wave by having a conversation in a crowded room and you're letting information where people can overhear it, that's a waiver, inadvertent though. Additionally, you can waive it when a person who is not a member of your staff is translating and you're telling that person could be subpoenaed for information. So just keep that in mind that there are tricks that you need to pay attention to and especially one of those is, primary is attorney client privilege waivers. Communication is vital and a large portion of your time, not only explaining the basics of workers' compensation, but also they're gonna call you and ask you, Hey, where's my check? It's not hearsay and it may come the next day. So they're not patient. So it's a lot of like... Typically what happens is that, you'll have maybe one or two attorneys and then you'll have a staff of 10 to handle the volume of phone calls that you're doing just on a daily basis. What's it like to represent employers? Small employers are typically ignorant of workers' compensation, workers compensation insurance, how much control they can exert in their claims and how to the lower their insurance premiums, they don't know. They think that, hey, if an injury occurred, I report to the insurance carrier, the insurance carrier is going to accept it. And they don't pay attention that the policy may not cover that person. So they just think very simply, like most people, Hey, I bought an insurance policy, should cover it. And they don't, and out of not even I read insurance policy terms. So trust me, they're certainly not reading their workers' compensation insurance policy terms. Larger employers are typically more sophisticated, but not necessarily. I know Fortune 500 companies that don't have a clue how workers' composition exists. Their risk management teams have no clue on how to manage their claims. And so it is a lot of handholding, it's a lot of making them understand what works for your state but not another. And again, you have those same issues with the attorney client privilege wages, because risk managers won't always include their brokers and their brokers kind of break that attorney client privilege where there's some really interesting cases out there about it right now. Now there are no actual statistics for diversity and inclusion workers compensation, but I also, this is much number one. There are a lot of employer driven demands for D&I now and you are seeing that change in a lot of claims. In my personal experience, the majority of my associates and young partners are women and they're people of color. They tend to settle in worker compensation because it provides an easier work life balance and a more manageable schedule while they're gaining experience. And then they transition to in-house counsel for an insurance company or an employer after seven to 10 years. And that's what I've noticed that in my personal experience. But you are still running into the issue at some of the larger law firms, plaintiff and defense. That as you go through the ranks, women and people of color are being systematically, you see less and less them at the senior partner level and the equity partner level. And so the representation drops as you go further up and that remains a key issue today. And so the employers requiring diversity and inclusion measures being held by law firms is huge and that's fantastic. And hopefully that'll continue to improve in the future. So there is a great article that you can check out, which is into the Institute for Inclusion in Legal Profession is just something. If you wanna spend some extra time reading it, it's useful. And here finally are some useful websites about workers' compensation. So the ABA Workers' Compensation group is a great place for you to go. And I really encourage you to try to find a mentor. If you're gonna do workers' compensation, find a mentor. There are loads of wonderful people in this industry. It is not usually as cutthroat or mean or just annoying as general litigation. We are dealing with ambulance chasers. People generally tend to try to help each other out. And so reach out to these committees and then these people will help you establish a practice, establish you, tell you what they did wrong and tell you how you can make your life easier, set up your practice so you can avoid some of the pitfalls that they went through. So these are some of the links. If you have any questions, please feel free to reach out to me. Again, contact me with any questions and feel free to check me out or ask any questions on social media or through email. Otherwise, thank you for your time. I've run a little bit over, but I hope this was useful to you. And again, if you have any questions, please feel free to reach out to me. Thank you.

Presenter(s)

Debra Doby
Partner
Vaughan Baio & Partners

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