Some people find that medical marijuana helps them control injury pain better than any other medication. If New York Workers’ Compensation benefits currently cover you, your medical marijuana may be covered.

The key case in New York Workers’ Compensation Law was the 2018 case, Matter of Kellner Bros., Inc. In this case, the claimant received medical marijuana to treat chronic pain for an established neck injury, prescribed to him to help wean him off of opioid pain control. 

In order to get workers’ compensation to pay for your medical marijuana, the following must be true.

1. A licensed medical provider must prescribe the marijuana.
2. The provider must be board-authorized.
3. They must submit a variance request.
4. They must file a prior authorization request through the Workers Compensation Board medical portal.

The doctor must provide certain information on the forms that they file, including the requested treatment, the duration of the treatment, the anticipated functional gains of the treatment, and why an alternative treatment would not be successful.

In other words, if there is another conventional medication that would do just as good of a job of managing your pain, the doctor must try that medication first, even if you might prefer to use medical marijuana instead.

In addition, medical marijuana prescriptions must be in keeping with New York’s Compassionate Care Act. Under this law, marijuana may be prescribed for a severe debilitating or life-threatening condition or for a condition or symptom that is clinically associated with a complication of a severe debilitating or life-threatening condition. One such condition is pain that degrades health and functional capability where the use of medical marijuana is an alternative to opioid use.

In addition, the prescription must be for an approved route of administration, including metered liquid or oil preparations, solid or semisolid preparations like capsules, chewables, tablets, or lozenges, metered ground plant preparations, or topical forms or transdermal patches. The Compassionate Care Act expressly prohibits smoking as a form of medical marijuana. It also prohibits edibles like chocolates, gummies, or candies. 

If you’re having trouble getting workers’ compensation to pay for medically approved treatments, including medical marijuana, it may be time to reach out to a workers’ compensation attorney. Contact our firm to get help today. 

See also:

Alcohol and Drugs in New York Workers’ Compensation Cases

Steps to Take After Getting Injured on the Job in New York

Why Workers Compensation Claims Get Denied in New York

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The denial of a workers’ compensation claim can cause a considerable amount of stress. While there are steps you can take to prevent denials, some denials will require help from a qualified New York Workers’ Compensation attorney to resolve.

Here are some of the most common types of denials that we see. 

Failure to File Paperwork

You must file your Form C-3 within 30 days of receiving your injury. Usually, we recommend filing your form on the same day you are injured. 

If you’ve injured the same body part in the past, you must also file a Limited Release of Health Information Form. 

Disputes Over The Cause of Injury

You may only claim a workers’ compensation injury if the New York Workers’ Compensation Board or the workers’ compensation insurance company believes that you were injured on the job.

If either party believes the injury was not work-related, there could be significant problems.

You will need to work with an attorney to prove that your injuries are work-related.

Failing to Seek Medical Attention or Follow Doctor’s Orders

Failing to seek medical attention after an accident is one of the worst mistakes you could possibly make. You should always seek attention directly after the accident.

Yet you can also get into a great deal of trouble by failing to follow doctor’s orders.

If your claim is particularly expensive or involves any form of major disability, you can expect that you may be placed under surveillance. Even minor, accidental failures to follow doctor recommendations can call your claim into question. Make sure you understand your limitations and follow them.

Your Conduct Has Been Called Into Question

There are some actions you can take at work that can prevent you from receiving a workers’ compensation claim. You wouldn’t be eligible for workers’ comp if you were working while under the influence or if working under the influence contributed to the injury. 

In addition, if you were roughhousing or intentionally ignoring your workplace safety policies, it may be impossible to pursue your workers’ compensation claim. 

Get Help Today

Struggling with your New York workers’ compensation claim? Don’t try to go it alone. 

Contact us to schedule a free consultation. We’re here to help.

See also:

What is the Difference Between Temporary and Permanent Disability in a NY Workers’ Comp Case?

How Can I Prove My Injury Happened at My New York Workplace?

Steps to Take After Getting Injured On the Job in New York

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A Section 32 settlement permanently closes a workers’ compensation claim in exchange for a lump-sum payment or structured settlement with annual payments.

Once you accept a Section 32 settlement, you forfeit future medical and lost wage benefits from the claim. However, partial settlements may address either medical or lost wage benefits while leaving the other type of benefit open.

The New York Workers’ Compensation Board must approve all Section 32 settlements.

Key Considerations for Section 32 Settlements

You should think about the following before accepting any Section 32 settlement.

1. Your future needs. Once you accept a settlement, it cannot be undone. Negotiate for the maximum amount you can receive.
2. Be aware that in many cases, you’ll receive less money in a Section 32 settlement than you would if you received ongoing benefits. 
3. Settlements may impact Medicare, Medicaid, and private insurance coverage for work injury care. Check with each provider before settling, as some require special arrangements, such as the creation of a Medicare Set-Aside account.
4. Remember, some insurers make low offers hoping workers will save them money by taking quick, unfair payouts. 

Remember, you are not required to accept any settlement offer. Consult with an attorney to ensure your settlement offer is fair before you sign away your rights. 

When a Settlement May Make Sense

Consider a settlement if any of the following conditions exist.

1. You’re dealing with financial and medical hardships after numerous benefit denials.
2. You’re struggling with ongoing fights over medical treatment approvals.
3. Your employer is playing games with light duty or is attempting to violate doctor’s orders, and you’re repeatedly struggling with them over these issues.

A lump sum or structured settlement may provide a predictable income that lets you locate a new job or pay for the care you desire. You must budget carefully, however, as you’ll have to pay your treatment costs out-of-pocket once the settlement money is all gone.

Some workers wait until their treatment needs are very clear before they settle, so they know exactly how much money they’ll need.

Get Legal Advice Today

Signing a Section 32 waiver is a major decision. Need help? Call us. We’re workers’ compensation experts who are ready to help you with your case, and we’ll be happy to evaluate your offer to determine if it is fair and reasonable. 

See also:

Frequently Asked Questions About Returning to Work in a New York Workers’ Compensation Case 

Types of New York Workers’ Compensation Benefits 

What is the Difference Between Temporary and Permanent Disability in a NY Workers’ Comp Case?

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You might not qualify for workers’ compensation if you had a workplace accident while drunk or high. While New York workers’ compensation is a “no-fault” benefit, meaning you can usually receive compensation even if the accident is your fault, intoxication may serve as an exception. 

While the New York Workers’ Compensation Board does not require drug testing, neither does it bar employers from demanding one. Many employers demand a drug test as a matter of routine after an accident, usually within 12 hours of the incident. Some will require you to get it done even before receiving treatment unless the accident is so severe that you’re whisked away to the ER before it becomes an option.

Fail it, and your benefits may be denied. 

Intoxication Must Be the Cause of the Accident

There is one bright spot for employees who might have a drug or alcohol problem, for those who use marijuana while off-duty (it can remain in the bloodstream long after the effects fade), or who must rely on certain prescription medications that are prohibited on the job. It’s also good news for individuals who end up with a false positive.

New York law does require employers to prove that the injury arose solely from the intoxication of the injured employee while on duty. If you were taking a prescription drug and can produce the doctor’s prescription, they may even have to prove they had a policy against using that specific drug or class of drug. 

In other words, if you weren’t really high at work but had drugs in your system from the night before, you could still be eligible. If you were intoxicated but couldn’t have caused your injury—i.e., a piece of equipment suddenly shot off some heavy machinery and struck you, or someone else dropped something on your head—you may still be eligible.

The burden of proof lies on the employer, not on you. They must prove two things: that you were intoxicated at all and that the intoxication was the only cause of the accident.

While providing such proof might be difficult for them, they will certainly try. 

Employers may still fire you for drug use on the job, regardless of whether they are forced to move forward with your workers’ compensation claim. 

Get Help Today

1 in 25 people use marijuana at work, many to manage pain just so they can get through their days. 2.3 million employees drink before work, and about 8.9 million people admit they drink during the workday. One in ten full-time employees struggle with substance abuse. One in 20 people admit to showing up while impaired by prescription drugs. Many feel they have no choice.

Our job isn’t to judge you. Our job is to help you secure your workers’ compensation benefits. If you believe you’re going to have any problem doing that, contact our law firm for a free consultation today.

See also:

How Credibility Impacts Your Workers’ Comp Claim

The Impact of Fatigue on Workplace Safety

Safety Training and Education Can Reduce Workplace Injuries

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You can only continue receiving workers’ compensation lost benefits in New York if you demonstrate that you are sufficiently “attached” to the labor market. Employers and insurers alike are often quite concerned by the idea that a worker who could work is instead resting at their expense. 

Once a doctor clears you to return to work, you must demonstrate that you’re making reasonable efforts to obtain gainful employment consistent with your medical restrictions. 

This could mean returning to work on light duty or part-time when such work is offered or trying to find a new job. This is true even though employers often make every effort to encourage injured workers to leave the workplace because they don’t want to deal with light duty requirements, and it’s true even though employers often flat out ignore light duty requirements and adopt a “take it or leave it” stance when employees complain.

Unfair as it all may seem, you must still demonstrate that you are making honest efforts to get back into the labor market. 

The employer or insurance carrier may ask you to demonstrate labor market attachment anytime. You do this by filling out Form C-258, Claimant’s Record of Job Search Efforts/Contacts. 

Fill out this form if you’re using services like New York State’s Department of Labor re-employment services, One Stop Career Centers, and are working a network or job search community. You can also use this form if you actively participate in vocational rehabilitation, job retraining, or are pursuing a new degree. 

If you are conducting an “independent” search, meaning you are using in-person contact, telephone calls, emails, and web searches only, then you would fill out Form C-258.1, Claimant’s Record of Independent Job Search Efforts.

If you are found to be permanently disabled, you no longer need to demonstrate labor market attachment. 

Labor market attachment can be extremely frustrating for workers’ compensation benefits, as often injured workers are pushed to take work at wages far below what they’re used to living on, or assumptions get made about what the worker can do that are not actually realistic for the workers’s capabilities. Getting declared 100% disabled is extremely difficult.

Having a qualified New York workers’ compensation lawyer on your side can help you navigate labor market attachment issues and can help you provide evidence that you have the right to retain your ongoing benefits. 

If you’re struggling with your workers’ compensation claim, contact our law office to schedule a free consultation today. 

See also:

Frequently Asked Questions About Returning to Work in a New York Workers’ Compensation Case

What is the Difference Between Temporary and Permanent Disability in a New York Workers’ Comp Case? 

What Are Your Rights When You Return to Work After a New York Workers’ Comp Claim?

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Unlike in some other states, New York gives the worker control over which doctor they see. The only requirement is that the New York Workers’ Compensation Board approve the physician.

In an emergency situation, you can go to any ER and use any ambulance. You don’t need to check whether either of them is registered with the Workers’ Compensation Board. In this case, we’re talking about the physician who will be handling your follow-up care and who will handle referrals to any specialized physicians. 

This is no guarantee that the doctor you’ll see is your regular doctor. Still, it does reduce the chances that the doctor has a special relationship with your employer or the workers’ compensation insurance company. 

You can use the online database to search for a suitable doctor, but you should check with your employer first. Some employers have workers’ compensation insurance companies that use Preferred Provider Organizations (PPOs) to cover employee medical care. 

You only have to use a PPO doctor for 30 days and can change if you don’t feel that the doctor is listening to you or working in your best interests. After 30 days, you can switch doctors. You can choose your doctor at any time if they don’t use a PPO at all. 

You’ll usually have a moment to think it through and make some decisions here. Don’t be afraid to choose carefully. Check the doctor’s reviews. Check their malpractice record with the County Clerk’s office as well. 

Note that choosing your own doctor does not change the fact that the workers’ compensation insurance company may request an IME at any time. An IME, or Independent Medical Examination, exists not to give you care but to analyze your claim. 

They are gathering evidence against you, or are trying to, but there’s not much you can do about that. You must attend the IME with the physician the insurance company chooses. You still have some rights: they must inform you of the IME 8 days in advance, and the examination location must be reasonably convenient. 

You must also receive your copy of the IME report within ten days, and they must mail all copies simultaneously. You also have the right to bring a witness to the exam or to have it taped. 

Ask your doctor to keep good records, as your doctor will gather the evidence that helps you. 

Even when you choose your doctor, you might struggle to get the treatment you need. State treatment guidelines bind Doctors, and the insurance company wants them to use the cheapest possible treatment, which might not be the treatment that actually supports your health. 

As workers’ compensation lawyers, we are experienced advocates who can help you get the care you need and deserve, even when the insurance company balks. We can push back when the insurer tries to claim a treatment is “not medically necessary” and can show how using the treatment you need would fall within state guidelines.

Need help? Get started today.

See also:

What Happens When a Work-Related Injury Exacerbates a Pre-Existing Condition in New York? 

Steps to Take After Getting Injured on the Job in New York

Workers’ Compensation Insurers May Trade Quality for Cost Savings

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Most workers’ compensation cases aim to get workers well and get them back on the job. Yet sometimes, the return to work doesn’t go very smoothly.

Here’s what you need to know about some of the most common issues that can arise when a person returns to work. 

How long can you be out on workers comp in NY?

In New York, you may stay out on workers’ compensation from 225 to 525 weeks, depending on the injury you have sustained and the amount of money you lose when you can’t go to work.

If you are permanently disabled, you may be eligible for lifetime benefits.

Does my employer have to hold my job while I am on worker’s comp?

Your employer isn’t required to keep your job open for you unless you are using your Family and Medical Leave Act (FMLA) benefits, which can protect your job for up to 12 weeks. 

Hiring is expensive, and finding the right hire is difficult. Therefore, many employers do hold jobs for injured employees, even if they don’t have to.

How does returning to work impact a workers’ compensation claim?

You should still be able to receive ongoing medical care, and you can expect workers’ compensation to continue to pay for your care needs.

If you are earning the same amount of money, your wage benefit may come to an end. If you’re earning less than you earned before the accident, your wage benefit may make up some of the difference.

If you return to work before a doctor clears you, you could lose your entire workers’ compensation claim, regardless of whether or not you are returning to your former workplace or a new one. 

If your injury worsens while working, immediately report the situation to your employer.

What happens if a New York employer tries to violate a doctor’s orders?

Be sure to document employer instructions, conversations you have with your employer about your light duty restrictions and anything else that might qualify. You may need to retain a workers’ compensation lawyer to protect your rights.

Anyone who is partially disabled is eligible for reasonable accommodations on the job, but employers often have very different ideas about what is “reasonable.” In addition, if your physician documents your light-duty restrictions and is in writing, then your employer may not violate them without consequence. 

Get Help Today

If you’re struggling with your workers’ compensation claim, contact our office for help. We’ve helped hundreds of New Yorkers resolve their workers’ compensation cases and can help you, too.

Contact us to schedule a free case evaluation today.

See also:

What Happens When a Work-Related Injury Exacerbates a Pre-Existing Condition in New York?

What is the Difference Between Temporary and Permanent Disability in a NY Workers’ Comp Case?

4 Questions You May Have About Workers’ Compensation

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Pre-existing conditions do not stop New York workers from receiving benefits. Workers’ compensation is even required to pay when a workplace injury exacerbates a pre-existing condition.

That’s not to say that a pre-existing condition helps your claim or makes it easy. You can expect employers to challenge whether your injury arose “out of and in the course of employment” unless the pre-existing condition is completely unrelated to the injury. For example, a pre-existing knee injury doesn’t touch a broken arm. 

Nevertheless, you should never hide a pre-existing condition from your employer. If you do, employers can accuse you of insurance fraud, worsening your problems. Share the information during your medical exams.

What happens if the pre-existing injury has nothing to do with my workplace injury?

You’re owed full, normal workers’ compensation benefits. 

The courts affirmed this principle in the 2015 case, Lattanzio v. Consolidated Edison of N.Y., et al., which involved a pre-existing neck injury and a back injury that arose out of and in the course of employment. 

Mr. Lattanzio had a pre-existing neck condition requiring surgeries and intermittent treatment but worked full-time with restrictions until he fell at work and sustained injuries to his back. The courts could find no record at all that his pre-existing injuries caused him to perform his work duties less than satisfactorily. 

The courts affirmed that he was entitled to workers’ compensation benefits.

Which pre-existing conditions might be aggravated by a workplace injury?

Almost any pre-existing condition could be aggravated, including RSIs, back pain, arthritis, heart disease, high blood pressure, diabetes, asthma, and chronic diseases of every kind.

Does the aggravation of a pre-existing condition reduce workers’ compensation benefits in New York?

Yes. The New York Workers’ Compensation Board can “apportion” benefits, essentially reducing them by a percentage. This will depend on how much your pre-existing condition is responsible for the injury versus your employer being responsible for the injury. 

What if the pre-existing condition was a previous work injury?

Workers’ compensation will divide your claim between the two injuries. This could mean a reduction in your current claim. 

Calling a workers’ compensation lawyer when you have a pre-existing injury is always a good idea.

By its very nature, your case is more complicated than the average New York workers’ compensation case. You can expect the workers’ compensation insurance company to use the pre-existing condition in any way it can to reduce the value of your claim. They may even try to deny the claim. 

You should also document your case to the fullest extent that you can at every point during your claim so that we have as much evidence as possible to work with.

Contact us to schedule a free consultation today.

See also:

Types of New York Workers’ Compensation Benefits 

What is the Difference Between Temporary and Permanent Disability in a NY Workers’ Comp Case?

What Are Your Rights When You Return to Work After a New York Workers’ Comp Claim?

Posted in Workers' Compensation | No Comments »

Domestic workers in New York enjoy some workers’ compensation protection. Employers must have workers’ compensation coverage for employees working 40 hours or more a week, including live-in and live-out nannies, housekeepers, cooks, home health aides, butlers, drivers, and gardeners.

Workers’ compensation may also apply in cases where the worker is sleeping and eating at the employer’s residence or off-premises, running errands, and performing other duties for the employer. Any hours where the employer requires the domestic workers’ presence count. 

Workers’ compensation is also required whenever you have a minor handling of power-driven machinery, including a power lawnmower.

Employers must also provide domestic workers who work over 40 hours a week with a statutory disability benefits policy. Domestic workers are also entitled to minimum wage, overtime pay, and at least one day off per week.

Your immigration status does not matter. You are entitled to workers’ compensation benefits even if you are undocumented. However, if you are about to pursue a workers’ compensation claim, we do recommend hiring an immigration lawyer at the same time you hire a workers’ compensation lawyer, as the workers’ compensation case could expose your undocumented status to the wrong individuals or employers may contact ICE just to retaliate against you for filing a claim. 

If you are injured on the job, you should take the same steps as any other employee:

• Report the injury to your employer
• Seek medical attention from an approved doctor on your employer’s list or from the ER
• Follow the doctor’s instructions
• Fill out Form C-3 to alert the state Workers’ Compensation Board
• Follow any work or activity restrictions provided by your doctor

Many workplace injury cases run very smoothly. You get a portion of your wages while you recover, your medical bills get paid, and you return to work. 

Sometimes, employers don’t want to pay, workers’ compensation denies the or delays the claim, or other problems arise. When that happens, hiring a workers’ compensation attorney who can help you navigate the process is vital. 

Domestic workers are often vulnerable to employer abuses, but you don’t have to face your workers’ compensation case alone. If you’re having trouble, contact our office for a free consultation. We will help you protect your rights.

See also:

Can Your Immigration Status Stop You from Receiving Workers’ Compensation in New York?

Steps to Take After Getting Injured on the Job in New York

Types of New York Workers’ Compensation Benefits

Posted in Workers' Compensation | No Comments »

12.7% of full-time employees work from home in 2023, and 28.2% work a hybrid model.

While we’d love to believe that no worker could ever get injured at home, workplace injuries happen in home offices too. This is especially true of repetitive stress injuries, as some home workplaces aren’t ergonomic. 

It’s important to know your rights while working remotely.

1. Employers are required to provide workers’ compensation to remote workers too.
2. You must prove the injury arose from the course of employment and not while conducting personal business around your home. 
3. Minor deviations from employment, such as taking a coffee break, do not necessarily prevent you from claiming workers’ compensation. A reasonable deviation will be a short-duration meal, coffee, or bathroom break.
4. You must work at home. Checking your work email at home wouldn’t elevate your home to a place of employment, but working regular hours at your home does.

It’s also important to know how you can make it easier to prove a workers’ compensation claim.

1. Work regular hours every day. If you can prove the injury happened during your regular working hours, it will be easier to show the injury arose from the course of employment. New York law assumes injuries at work during working hours are assumed to be work-related unless the insurance company can prove otherwise. They would have to prove you definitely are not working. This will be easier if you don’t maintain regular working hours.
2. Designate a regular working area of your home. Set up your workstation there. Consider creating an ergonomic station. 
3. If you are an hourly employee, you should never engage in “off-the-clock” work. When you’re working, you should always be clocked in.
4. If your employer has established a home safety checklist, has offered ergonomic equipment, and has established a telecommuting policy with guidelines for a home office, you should follow those guidelines to the letter. If you fail to do so, proving your injury was work-related may be harder.

In all other ways, a home workers’ compensation claim proceeds exactly like any other claim. You should report the injury to your employer and seek medical attention. If the injury is not an emergency, you should go to one of your employer’s approved providers. If it is, you should go to the ER.

If you are denied workers’ compensation benefits, you should reach out to lawyers like us. Schedule a free consultation to get started today.

See also:

When Are You Officially “On the Job” in New York? 

How Can I Prove My Injury Happened at My New York Workplace?

Steps to Take After Getting Injured on the Job in New York

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