Month: February 2021

You may have a Workers’ Compensation claim without even knowing it.  An injury used to be defined as “violence to the physical structure of the body.”  Now in the realm of workers compensation, an injury is no longer just an accident that results in a physical injury.  The court did away with that definition back in 1972 and broadened it, allowing for more compensable claims.  The Workers’ Compensation court focuses much less on defining an injury and more on whether the injury is related to employment.  The injury does not need to be pinpointed to a specific event or definable incident, as long as the injury arises in the course of employment and is related to the employment, regardless of the employee’s previous physical condition.  Also, the definition of an injury includes aggravation, reactivation, acceleration, or death resulting from the injury.

Time and time again a client comes to see us with a new injury, but they are unsure if they have a claim because of their medical history.  Let’s take, for example, a nurse who injured her right shoulder while transporting her patient from a wheelchair to a hospital bed.  However, two years ago, she was involved in a motor vehicle accident that resulted in an injury to the same shoulder.  The insurance company denied the nurse’s claim, citing a pre-existing condition.  We see this far too often.  On one hand, the nurse may have had some treatment and fully recovered from the motor vehicle injury.  If that is the case, we will handle the matter like any other traumatic injury.

On the other hand, let’s say the nurse developed some arthritis in the right shoulder as a result of the motor vehicle accident, or just from general aging or degeneration.  Her shoulder did not bother her, also known as “asymptomatic”, following the motor vehicle accident.  The nurse went back to work and was able to perform her job duties without any issues.  She then moves her patient and feels pain in her right shoulder.  Now, she is unable to perform her usual job duties.  Her doctors believe she aggravated her pre-existing right shoulder arthritis.  The nurse can, and should, seek Workers’ Compensation benefits because her work injury caused her current disability.

Additionally, you do not need to suffer a specific injury to be entitled to Workers’ Compensation benefits.  The court acknowledged that “work-related disability may be shown to result from the cumulative effect of the recurring trauma of the work duties.”  Therefore, Workers’ Compensation includes injuries resulting from cumulative or repetitive movements.  This is very common, and we effectively litigate these types of cases on a regular basis. An example of this is a warehouse worker who constantly bends down to pick up and move boxes who starts to experience pain in his lower back.  He cannot point to a specific event that caused his pain, but the repetitive act of bending over throughout the day certainly caused the pain in his lower back.  Eventually, the warehouse worker can no longer perform his job duties because the pain in his lower back.  Under the Workers’ Compensation Act, this type of injury is compensable.

You should also know that the Act covers specific loss benefits.  These benefits relate to loss (amputation) or permanent loss of use of member of the body, hearing impairment greater than 10%, loss of vision in one or both eyes and disfigurement.  Disfigurement must be to the head, neck or face area and must be serious, permanent and unsightly.  Specific loss benefits are an exclusive remedy that precludes consideration of any disability that normally flows from that injury.  In other words, it does not matter if, or how long, an employee is out of work.  He or she will receive benefits corresponding to a pre-determined amount of weeks spelled out in the Workers’ Compensation Act.  For instance, you are entitled to 335 weeks of benefits if you lose your hand; 250 weeks for a foot; or 40 weeks for a big toe, etc., regardless of how long you are out of work.  Let’s use a mechanic as an example here. One day, the mechanic severely cuts his left thumb while working on a car. He goes to the hospital and they have to amputate most of the thumb. The mechanic misses some work but is back to full duty shortly thereafter.  Despite the fact he is back to work, the mechanic is entitled to 100 weeks of benefits. The mechanic may also be entitled to additional weeks known as a “healing period.” Like specific loss benefits, the healing period corresponds to an already set amount of weeks.  The difference with the healing period is that it ceases if the employee returns to work without impairment in earnings before the expiration of the healing period.

In sum, Workers’ Compensation injuries come in all different shapes and sizes.  The examples above are only a small sample of the injuries covered by the Workers’ Compensation Act.  You may have suffered a psychological injury or occupational disease; these are also compensable under the Act.  It is important to know your rights and what you are entitled to if you suffer an injury in the course of your employment.

Contacting An Experienced Workers’ Compensation Attorney

If you or a loved one has been injured in a work-related accident, call us at (215) 999-1443 or contact us by using the assistant or by filling out our contact form. The initial workers’ compensation consultation is free-of-charge!

Many people who receive medical treatment under the Workers’ Compensation Act, regardless of whether their employer initially accepted their claim or if your case has gone through a round of litigation, may at some point receive a notice of Utilization Review (“UR”). 

Utilization Review Explained

The Workers’ Compensation Act provides for a utilization review process by which all treatment provided by a health-care provider under the Act may be subject to prospective, concurrent, or retrospective utilization review at the request of an employee, and employer, or an insurer. The most common reason an Employer files a Utilization Review Request is for cost containment. In other words, your employer is trying to establish whether your medical treatment is still medically necessary because if it is not, they no longer have to pay the bills. 

Once an employer has received medical bills referable to your work injury, they are entitled to file a UR request within 30 days of receipt of the medical bill. When a UR request is filed, payment for the treatment in question is under dispute. During the time it is in dispute, those bills will not be paid under the Act until the dispute is resolved.  DO NOT WORRY – most providers are still willing to provide you treatment even with this pending.  If not, the lawyers at Stern & Cohen will have a solution for you.  We will not let this get in the way of you obtaining the necessary care for your work injury!

The UR request can cover a range of treatments. For example, if you are treating with a pain management doctor for your work-injury and the treatment is covered under the Act, your employer could be disputing the reasonableness and necessity of you seeing that specialist at all, or they could simply be stating that a certain type of treatment, such as a certain medication, or the frequency at which you see the specialist is not reasonable.  An organization called the Utilization Review Organization performs the review. What this means is that a provider licensed in the same profession and having the same or similar specialty as the treatment rendered by the health care provider under review determines the reasonableness and necessity of the treatment in question. For example, if your employer files a UR request regarding physical therapy you receive, a physical therapist from the Utilization Review Organization will review your medical records and determine if your treatment is still needed. After reviewing the medical records related to the work injury, including the treatment under review, the Utilization Review Organization will issue a report, called a Utilization Review Determination (“URD”). 

A URD is a report indicating whether the treatment under review, relating to a specific period of time, is medically reasonable and necessary. If the reviewer decides that all or part of the treatment under review is not reasonable and necessary, they must explain the basis. If the reviewer determines the treatment is not reasonable and necessary, the injured worker has a right to challenge the URD, which is called a Petition to Review Utilization Review Determination. 

By filing this Petition, the worker is indicating that they need this treatment and it helps in some way. It is important to note that even when the worker files a Petition to Review Utilization Review Determination, the Employer still has the burden of showing the treatment is not needed, because they are the ones trying to stop their obligation to pay workers’ compensation work-related medical expenses.  Our firm is very adept at litigating these issues.

How Do We Prove The Treatment is Reasonable and Necessary?

First, we will have the provider under review either testify as to the treatment in question or issue a report indicating the reasoning behind the treatment and its relation to the work injury. Further, and most importantly, the worker will be allowed to testify specifically about the treatment they receive. 

We have used the term “reasonable and necessary” several times at this point. It is very important to note what “reasonable and necessary” means under workers’ compensation laws. The following are situations that qualify as reasonable and necessary treatment: treatment that is merely palliative in nature and provides no lasting benefit, treatment designed to manage the employee’s symptoms rather than cure or permanently improve the condition, treatment for pain that does not increase the employee’s physical capacity. 

Practically speaking, if you receive any benefit from treatment that is related to your accepted work injury, you are entitled to continue that treatment. The treatment does not need to “heal” or “cure” you to be deemed reasonable and necessary.  Our lawyers have vast experience at developing and presenting this testimony from our clients.

Let’s take a look at how this might look in a real case. In this hypothetical, you are involved in a work-related accident in January 2020 and injure your back. Your employer accepts your injury and you begin treating with doctors, including a chiropractor and a pain management doctor, using the workers’ compensation insurance. Now, after a few months of treatment, your employer files a UR request relating to treatment with your pain management doctor and chiropractor from April 2020 and ongoing. This indicates your employer is not sure that they should still be treating for those specific doctors as of April. The Utilization Request Organization will have two reviewers, one chiropractor and one pain management doctor, review your medical records and determine whether you still need to be treating for your injuries with these providers starting April 1, 2020, through the present. 

In this hypothetical, a UR Determination comes back in June 2020 and indicates that the treatment with your pain management doctor is reasonable and necessary, except for one prescription during the period under review, and that no chiropractic treatment is necessary as of April 1, 2020, and ongoing. In the meantime, you had continued treating with both providers for the two months while treatment was under review, and now there are outstanding medical bills.

What Should You Do?

You should have your attorney file a Petition to Review Utilization Review Determination. It is important to note that if you do not have an attorney already, you should get one. As mentioned above, we will submit medical evidence from the providers in question that support the medical necessity of the treatment. Further, you will have the opportunity to submit an affidavit and testify, either via deposition or at a hearing in front of a Judge, regarding your treatment. 

This testimony is your opportunity to explain why you need the medical treatment and what benefit you get from it. As noted above, the treatment does not have to cure you. Rather, as long as you receive some benefit, even if temporary, you are entitled to continue treatment. For example, if the prescription medication that was determined to be unreasonable and unnecessary helps you manage your pain levels, then it is reasonable and necessary. Even if you are still unable to work while on it, if there is some palliative benefit, then it should continue to be covered under the Act. Similarly, if you receive benefit from chiropractic treatment, even if only for a few hours after treatment, then the treatment should continue to be paid for. 

The most important thing to remember if you receive an unfavorable Utilization Review Determination is to not panic. If you believe you benefit from the treatment under review, keep treating with that provider and have your attorney file a Petition to Review the Utilization Review Determination. The most important thing to focus on is your recovery. 

Contact Us – the consultation is always free.

This is a question that we are often asked by our clients – and it makes sense. You are unable to work because of an injury and now, in addition to being in pain and dealing with your injury, you no longer have an income to support yourself or your family. Work injuries place financial strains on individuals and their families.

For starters, if your Workers’ Compensation claim is denied by the insurance carrier for some reason, we have to litigate a “Claim Petition.” This Petition gets your case into Workers’ Compensation court so we may pursue your lost wages and/or medical expenses. We understand that not everyone can endure being without an income for an entire year, the amount it typically takes to litigate a case (this topic was discussed in a previous blog – check it out HERE). If you fall into that category, the answer is “yes”, you should apply for other sources of income.

Under Workers’ Compensation laws, an injured worker can receive benefits, such as unemployment compensation. However, if we are successful in litigating your Claim Petition, your employer has the right to reduce your Workers’ Compensation benefits based upon the net amount of unemployment benefits you have received.

Let’s break this down. To be clear, the receipt of unemployment compensation benefits by the employee is not a bar on the receipt of Workers’ Compensation benefits. In other words, we understand that when filing for unemployment, you have to certify that you are available and able to work. How does this reconcile with the fact that you are currently litigating your claim alleging you cannot work because of your work injury and are entitled to Workers’ Compensation benefits?

The answer is fairly simple. You can be “disabled” under Workers’ Compensation and entitled to full disability benefits, meaning you are unable to perform your pre-injury job with your employer because of your work injury – but that does not mean you are not capable of performing some other type of job. If you are partially disabled and you may be able to perform light duties, then you are qualified to receive unemployment compensation benefits and for the same period, be entitled to benefits for total disability under Workers’ Compensation.

How might this look in a case? Let’s say, for example, that you are a carpenter, and you break your leg on the job. It seems fairly obvious that you will not be able to continue your job as a carpenter while you are treating your leg and waiting for it to heal. Under Workers’ Compensation laws, you are disabled because you can no longer perform your pre-injury job duties as a carpenter. However, if you were accommodated and given a sedentary customer service type job, or a work-from-home job that involved mostly being on the phone, you could maybe work, even while recovering from your work injury. If your employer has not offered you a job accommodating your injury, which is likely the case if their insurance carrier denied your claim, you are entitled to apply for and receive unemployment. Further, in many instances, like the one above, if you work for an employer and your job involves physical, manual labor, oftentimes there is no “light-duty” job to offer. In that case, you can still apply for unemployment benefits.

Here is a simple example of how this might look in a real case. Let’s say you were injured on January 1, 2019, and your claim was denied. We litigated your Claim Petition, and in the interim, you applied for and received unemployment for a while. On January 1, 2020, the Judge determines you were injured and unable to work because of your injury and you still have not recovered. In this case, you would receive Workers’ Compensation wage loss and medical benefits retroactively from the date of your injury to now, in addition to future wage loss benefits weekly. Your employer’s insurance carrier will be able to get a credit for the net amount of unemployment benefits received that were paid in a time period that is attributable to your work injury. Simply put, you cannot “double-dip” and receive unemployment benefits and Workers’ Compensation benefits for the same time in an amount greater than if you never stopped working.

To sum it all up, applying for unemployment, i.e., agreeing that you are willing and able to work, does not mean that you are admitting you are not injured. Rather, you are agreeing that you could work in some capacity, but not what you used to do.

There are specific strategic decisions that should be discussed with an attorney.

Contacting An Experienced Workers’ Compensation Attorney

If you or a loved one has been injured in a work-related accident, call us at (215) 999-1443 or contact us by using the assistant or by filling out our contact form. The initial workers’ compensation consultation is free-of-charge.