Worker's Compensation Transcripts August 28, 1997 9 a.m. - 10 a.m. GUESTS: DOMINICK TUMINARO, LABOR/EMPLOYMENT ATTORNEY The following are excerpts from the viewer call-in portion of the program. Ten-Year Delay in Receiving Worker's Comp Reporting Worker's Comp after Leaving Job Can Worker's Comp be Increase if Expenses Increase? Can You Chose Your Own Doctor Under Worker's Comp? Trouble Finding a Lawyer to File Claim What if Employer Says Injury is Not Work-Related? Tips for Filing Worker's Comp JUNE GRASSO: Good morning. I'm June Grasso, and welcome to Legal Cafe, Court TV's daily wakeup call to the law in your life. On Thursdays, we focus on the work place, and we'll begin by discussing workers' compensation. What are your legal rights and responsibilities if you've been injured on the job? I'm joined by Dominick Tuminaro, an employment attorney and former chairman of the workers' compensation committee of the New York Coalition for Occupational Safety and Health. Dominick has years of experience with workers' comp cases, and it's a pleasure to have you here, Dominick. MR. TUMINARO: Thank you. It's nice to be here, June. MS. GRASSO: When you hear about workers' comp, you always hear about workers taking advantage of the system. Is there that much of that problem out there? MR. TUMINARO: First of all, let me say there's no data. There's anecdotes. If you talk to the National Council of Compensation Insurance, and they're the people that are the rating organization and gather the statistics, they'll tell you that the major problem is premium fraud -- employers who don't get the proper coverage, who misclassify their employees, who go bare -- that is to say they don't get the coverage that's mandatory -- and that's where most of the money is. Secondly, provider fraud. There are providers who are paying for medical expenses that are overbilling and things of that sort. Claimant fraud is minuscule in terms of the whole problem, yet that's the issue that's focused on, unfortunately. MS. GRASSO: You hear, also, stories about how long it takes -- people who are in workers' compensation cases for it seems like years, going on and on. Are they doing something wrong? Is their employer doing something wrong? Should it take a long time? MR. TUMINARO: First, let's say that the nature of disabilities, June, is that they evolve over a period of time, so there are questions about is the person still disabled, have they gotten better, do they still need more care, and those issues are often litigated. While people hear about it as a no-fault system, that doesn't mean that all issues are sort of automatic. They get litigated, and so the nature of disabilities is you have to check and see what's happening with somebody, so the nature of it is that it's going to take some time to play out. Secondly, there's lots of litigation by the insurance carriers. If people got the money that they need or got the procedures or medical care that they need, we wouldn't have all this delay, but the delay is occasioned by the fact that there is litigation not about fault, but about a whole range of other issues. MS. GRASSO: Now, it's supposed to be -- I mean, workers' comp is supposed to be there so you don't have -- if you get injured on the job, your employer doesn't have to worry about punitive damages and your suing him or her, but it's supposed to be an easier system so that there's no questions asked, the employer's what's called strictly liable. I get hurt on the job, I get workers' compensation from my employer. What's the process? What makes it difficult? MR. TUMINARO: What makes it difficult is the workers don't have a lot of information about what their rights are, and a program like this is very helpful in that regard, because I assume we're going to talk about -- MS. GRASSO: We are, we are. MR. TUMINARO: And so they don't know what to do, and employers are not helping them, and employers don't give them claim forms -- MS. GRASSO: So let's help them right now. What do you do? You get injured on the job, what's the first thing you do? MR. TUMINARO: First thing to do is report it to your employer, even though you might not be sure about what the extent of the injury is. MS. GRASSO: And you might feel kind of, oh, I just pulled something -- MR. TUMINARO: You might feel like, "Oh, I just pulled something, I might get better," but it's important to give notice to the employer, and that should be done in New York and in many other states within 30 days. You have two years to file your claim. You've got to file a claim. A lot of workers think that because they filled out an incident report on the job, they've filed for compensation, but, in fact, they haven't -- MS. GRASSO: Who do you file with? MR. TUMINARO: You've got to file with the workers' compensation board or the agency in your state -- if this is a national program, then I think we should talk generically. You've got to go to the doctor. That's the second thing. After reporting it to the employer, go to a doctor, and when you go to a doctor, don't just say, "I've got a problem with my arm," or, "I'm having problems breathing," explain, if it's a work-related problem, that this is a workers' compensation case -- I got hurt on the job. And, third, file a claim. So if I had to give three tips, I'd say report it to the employer and then secondly go to a doctor and let the doctor know that you got hurt at work, and, third, basically file a claim. MS. GRASSO: Now what's -- if you trip over a box or something, that's clearly, you know, it's workers' comp. Suppose you get ill and, you know, suppose you think it's because of things happening -- people talk a lot about buildings being unhealthy -- MR. TUMINARO: Sick building syndrome, yeah. MS. GRASSO: -- something like that -- right. Being in New York, there are so many buildings to be unhealthy, but what about if you're not sure if it's -- if you really -- it really happened on the job, and you come down with something. Is that workers' comp or not? MR. TUMINARO: It might be, and very often it is. There are some issues that do get litigated, but basically here in New York and in New York state generally, we have a network of occupational health clinics which will make a determination, which will evaluate a worker and see whether the symptoms that they're presenting are caused by work place exposures. One simple example is lots of people are developing problems with their hands because of so much keyboarding. Carpal tunnel syndrome, tendinitis, and a whole range of other polysyllabic words. So those workers may not know or the doctors that they go to may say, "Well, you know, it could be, but maybe -- I don't really know for sure" -- and that's when the worker has to get specialized help at this network of occupational health clinics we have in New York, and they'll evaluate you and see whether those symptoms that are being presented by the worker are being caused by the work that they're doing. MS. GRASSO: Well, it's becoming clearer, the area, already. It's going to be even clearer before we get done with this hour, but let's find out what our viewers are thinking about, because we've gotten lots of e-mail questions about workers' compensation at our Legal Cafe website. TEN-YEAR DELAY IN RECEIVING WORKER'S COMP This morning's question comes from Janice in Louisiana, who says she was injured on the job over 10 years ago and there's still been no decision from the judge. Janice writes, "Can my employer's insurance company discontinue all of my necessary medical treatment and wages without a decision from the judge?" So we're talking about delays -- this is a 10-year delay. What's the answer to that question? MR. TUMINARO: Sometimes the law does allow them to make a decision before there's been a determination by the judge. The law sometimes allows the carriers to make unilateral decisions about discontinuing care or discontinuing payments, and those issues get litigated, and that's a terrible example of what we're talking about that makes the system so difficult -- MS. GRASSO: Ten years from the time when she was injured and she's still -- I mean, that seems -- even if it went into civil court and you talk about long dockets in different states, like New York and California, but even a long docket wouldn't be a 10-year-long docket. MR. TUMINARO: We had a case here in New York recently that was reported in The New York Times and other places that involved a 30-year struggle by a worker named Bob Manning against a powerful employer and carrier, so what you're talking about is situations where there's not a real balance, you know. The carriers have lots of money, and their attorneys can litigate things and most of the people in the system are not represented by lawyers. They're in it by themselves. REPORTING WORKER'S COMP AFTER LEAVING JOB MS. GRASSO: All right. Thanks so much, and now we go to another Susan, from Michigan this time. Good morning, Susan. Q Good morning. MS. GRASSO: Hi. You're on Legal Cafe. Welcome. Q Thank you. I'm calling because my husband was injured as a bus driver, cumulative trauma type things. He has a neck and shoulder and arm problem -- but mostly in his neck. This was July 1, 1995. Does he have a legal leg to stand on to go back now after being out of work for more than one year and having -- but he's no longer employed with them. MS. GRASSO: He never reported these medical problems he was having, the problems from -- they're cumulative, I understand, but did he ever report them? Q I don't believe that he reported them as injuries to the company. However, he was certainly seen in the emergency room and subsequently on many occasions by physicians and had injections and physical therapy and so on. MS. GRASSO: Susan, has he -- now, July 1. He hasn't been working with the company since July 1, 1995? Q Correct. MS. GRASSO: All right. And he's in a different job now? Q Correct. Actually, he's not working, because he's so minimally disabled. MS. GRASSO: Wow. That sounds like a long time. Now, you said there were 30-day periods, usually, in most -- MR. TUMINARO: Two separate issues. Susan from Michigan, you're asking whether he has a legal right to stand on to get his job back, and I'm afraid in that regard, while he may have a good workers' compensation claim, he probably doesn't have a legal right to be reinstated. Most of the states in the country do not provide that you have a right to be reinstated after you've been injured on the job and been out of work, you know, whatever the period of time, so there is a confusion that many workers have that their job is protected if they're disabled, and the reality is that unless they're protected by civil service laws or by a union contract, they may not have a right to be reinstated after they recover from their injury. The issue of whether he has a good workers' compensation claim, June, is a separate issue, and, Susan, I would suggest that you have your husband pursue that claim, get evaluated as to whether his symptoms are work related, and if they gave him some treatment in the emergency room, then that constitutes advance payment of compensation, and even if he's been lax in reporting it, he'll be able to qualify. MS. GRASSO: So you can get around those notice provisions that we were talking about before, where you have to notify your employer within a certain amount of time? MR. TUMINARO: Well, for example, if an employer has provided and paid for emergency care, that means they're on notice that there's been an injury -- you see. In a sense, that requirement is then waived on the basis that there's been notice, in effect, and there's been a kind of advance payment of compensation in the form of the medical care that's been provided and paid for. MS. GRASSO: Okay. Great. All right, thanks so much for calling, both Susans. CAN WORKER'S COMP BE INCREASE IF EXPENSES INCREASE? But let's go to your phone calls now to see what you have suffered through at work, perhaps, with injuries on the job. Barbara from New York. Good morning, Barbara. Q Good morning. MS. GRASSO: Hi. Have you had a workers' compensation case? Q Yes, I did, since 1972, and it was settled, and at the time it was settled for a small, you know, small payment. MS. GRASSO: Barbara, may I ask you what kind of work you did and what kind of injury it was? Q I worked for the city of New York, and it was a back injury. MS. GRASSO: Okay. Q And it ended up that I did Social Security disability, but when you get workmens' comp, they take -- take something away from the Social Security disability. My question was are there ever any increases in your workmens' comp payment, because things don't get better with the back. In fact, as years ago by -- I'm 63 now -- it gets worse. Medication is terribly expensive. I haven't been able to use workmens' comp doctors because they all say there's nothing wrong. Of course, I have proof that there is. MS. GRASSO: Okay, and I think you've raised a couple good issues there, but first, to answer her question, she says it gets worse as the years go by, but your workers' compensation payments don't get any better. MR. TUMINARO: Well, Barbara is right, and the last time, for example, that the New York state legislature raised the benefits of people like Barbara, who had older cases, was in 1990, when they raised -- when they made a small increase in cases that were settled before 1979. Generally when there's an increase in the statutory benefit rate, that increase does not apply to cases that have already been determined, so essentially Barbara is correct. There is no enough relief for people who have small payments and then years have gone by, and they're getting $50 a week or $105 a week, and that's not the kind of money that people can live on. MS. GRASSO: And so there's nothing that she can really do about it. That's the system. MR. TUMINARO: There may be an issue in her case in which she's getting a partial disability rate and her condition has deteriorated, she might be able to reopen the case, but that only applies to a relatively small percentage of matters, and it may well be that Barbara is basically stuck on a fixed rate, even though years have gone by, the cost of living has gone up, and so forth. So I think policy makers need to take a look at this and realize that there are people who are on fixed incomes due to injuries that prevented them from going back to work. CAN YOU CHOSE YOUR OWN DOCTOR UNDER WORKER'S COMP? MS. GRASSO: Dominick, and she also raised another issue, which is going to the doctor. Now, do you go to your own doctor, or do you go to a doctor, a workers' compensation doctor that the company has? MR. TUMINARO: You go to your doctor -- in New York, you have a right to choice. This is a highly contentious issue right now in the country. There are about 20-some-odd states in which the worker chooses to go to their own doctor and the doctor has to be authorized by the workers' comp agency in that state, yet there are another 20 states in which the employer chooses, and then there are some in between in which there's a system that's a little bit more of a mix. So this is an important issue that you put your finger on: Who chooses the doctor? Because if the doctor is chosen by the employer and getting referrals from the employer, very often the doctor's going to lean in the direction of those who are sending them the cases, and that's just the nature of the beast, so to speak, and if doctors are being chosen by you and they're there for you and they don't have any conflict of interest and they're concerned about taking care of you and, in effect, they're an advocate if, in fact, you're injured and you're still too disabled to get back to work, and this is an important issue at this moment in workers' compensation systems across the nation. MS. GRASSO: Well, there seem to be a lot of controversial issues in this area. Up next, more of your questions about workers' compensation. TROUBLE FINDING A LAWYER TO FILE CLAIM Let's go right to the phones, where Theresa from Illinois is standing by. Thanks for holding on, Theresa, and good morning. Do you have a question about workers' comp? Q Yes. I have a policy with hiring an attorney. I have gone to see an attorney. I'm in a workmens' comp case for 10 years. MS. GRASSO: What kind of injury did you have? Q A back injury. MS. GRASSO: And what kind of work did you do? Q I am a postal worker, and when they hear that you're a postal worker or a government employee, they say they can't take the case. MS. GRASSO: Really? Q And I was just wondering why this is. I mean, I've looked all over the state of Illinois trying to find a lawyer. MS. GRASSO: Really? Well, let me ask -- first of all, let me ask you, Theresa, have you gotten any workers' comp at all, or -- Q I had an injury 10 years ago, and then I had a reoccurrence, and now I'm down to the occupational disease. MS. GRASSO: I see. Q I've gone through the board of review in Washington, DC. Now I'm back to occupational -- OWCP in Chicago. MS. GRASSO: And back injuries with postal workers, I think that's something that would probably plague a lot of postal workers. Dominick, why is it so difficult for Theresa to find a lawyer to handle this? MR. TUMINARO: Theresa, the problem is that across the country, postal workers do not get attorneys and representation because the system has been set up due to a change some years ago in which the lawyers have to chase after the clients. In the state systems, the lawyers have a leave, and they're paid out of the award by the insurance carrier, so they don't have to chase after their client. What's happened is that lawyers have exited the system in connection with the Federal Employees Compensation Act, and they do not practice in that system because they have a difficult time getting paid for the work they do. So this is a very important issue, and I have postal workers in New York that can't find representation. For example, my firm does not do that work because we don't want to be in a position of having to chase after clients or not be able to get paid. MS. GRASSO: So what -- what -- it's funny, because you'd think that -- MR. TUMINARO: It needs a change in the law. MS. GRASSO: -- federal would be an easier area to deal with. And we're going to have more, by the way, on the federal workers' compensation for you, more information, later. So there really is no good advice for her for how to get a lawyer? MR. TUMINARO: I have been at a loss. There is exactly one firm in New York state, for example, that I can possibly refer people to, and this is a terrible situation, and it needs to be remedied. MS. GRASSO: Okay. Well, I'm sorry we couldn't help you with that, Theresa. Good luck to you. It certainly seems to be a problem that many people share, though. WHAT IF EMPLOYER SAYS INJURY IS NOT WORK-RELATED? MS. GRASSO: Let's go to your phone calls to find out what your questions are in this area of workers' compensation. Bob from New York. Welcome to Legal Cafe, Bob. how are you? Q Oh, I'm not too bad. I have a question. I hope it's based -- dealing with compensation. Well, I work for city government. In May of this year, I fell on my job and hurt my ribs and my shoulder. So I went out on compensation. A few weeks later, I developed numbness in both my hands, so I went back to my doctor and he diagnosed it as carpal tunnel system. Now, I went back to my employer, explaining to him that I think I developed carpal tunnel syndrome because of the injury. Now they're claiming that it wasn't job related because I didn't notify them immediately. Now, I went to a couple of compensation hearings, and they tend to agree with them. Now I don't know what to do. Meanwhile, for the last four months, I haven't gotten paid even for the original injury. MS. GRASSO: All right. Are you still out? Q Yes. MS. GRASSO: Okay. All right. Well, Dominick, I mean, this sounds like a classic case of you think it's from the job, it's job related, and they disagree with you. Now, he's been through the process, obviously. What does he do now? MR. TUMINARO: Well, Bob has to get medical evidence that the numbness and the problems, the carpal tunnel syndrome are a consequence of the injury, so when he had the initial injury, of course he wouldn't be reporting about the numbness, because that developed later. The law provides that if you have a consequential injury, something that arises out of the first injury, it should be covered. However, it will be litigated, so what he's going to have to do, Bob, is to -- Bob, you're going to have to go to the doctor and make sure the doctor gives you a report that the carpal tunnel syndrome is as a result of that acute injury that you had. It didn't necessarily show itself immediately, but the doctor has to give that opinion. And, of course, your employer's carrier or if they're self-insured, they have the right to get a contrary opinion, and the judge is going to have to decide, June. MS. GRASSO: Now, Dominick, I have another question raised from his call. If you belong to a union, do unions help you litigate workers' compensation issues? Can you go to your union delegate if you're having a problem with your employer, and will they help you? MR. TUMINARO: Unions are very helpful to their members. They're not able, necessarily, as a union to litigate it, but they can do an awful lot to provide workers with the necessary information of what they should be doing, of giving them guidance, of even helping them find appropriate legal representation. Unions give their workers lots of information. Here in New York, I work with many of the unions, and I find that if a worker is unionized, is a member of a union, they have a much better chance of navigating the system than a worker who is not part of a union. MS. GRASSO: All right. That's another good piece of advice. Thanks so much for calling, Bob. TIPS FOR FILING WORKER'S COMP MS. GRASSO: Our time for this hour is almost up, so let's take a minute to summarize some of the key legal points on workers' compensation. We'll call this Dominick Tuminaro's House Blend for a Speedy Recovery. First, if you are injured at work, report the injury to your employer as quickly as possible. You should also go to the doctor's sooner than later to eliminate any suspicion about the legitimacy of the injury. Finally, file your own claim, if possible, but don't be afraid to hire an attorney to work out any problems. All right. Dominick Tuminaro, thanks so much for being here. MR. TUMINARO: Nice to be there. MS. GRASSO: It's been a real pleasure. You have a wealth of information on this subject. Thanks for sharing it with us. MR. TUMINARO: Thank you. MS. GRASSO: That's a wrap for our look at workers' comp.