Workers’ Compensation

Bad Insurer: The Board agreed with the firm’s contention that the insurance company’s conduct in appealing the case was “inhumane, abusive, irrational and frivolous” and penalized the insurance company for filing a meritless appeal.


Immigrant Workers: A judge who denied benefits to a claimant on the grounds that he was an illegal immigrant was reversed by the Board, which reminded the judge that “an illegal alien does not lose the right to benefits because of the illegal status.”


Insurer Fraud: One insurance company tried to suspend payments to a permanently disabled injured worker because he would not settle his case, and duped him into signing and sending back a questionnaire that they then used in an application to the Board. The Board agreed with the firm’s argument that the “claim was reopened based upon the carrier’s improper communication with the claimant” refused to consider the questionnaire, and continued the award of benefits.


Death benefits: The firm obtained $250,000 in retroactive benefits plus continuing payments of $800 per week to the widow of a volunteer firefighter in a hotly contested claim, an award of more than $100,000 plus continuing weekly payments to the widow of a City of New York employee who was found dead at work (a case in which the firm won three separate appeals to the Board). The firm also won a permanent award of $400 per week to the widow of a truck driver who suffered a heart attack while driving after the firm obtained a Board decision reversing a judge’s decision which denied benefits until further evidence was produced.


Medical Evidence: Our client suffered a serious injury to his hand while at work as a gravedigger. After missing many months from work, he was able to return to his job, and the question in the case was the percentage loss of function (called a “schedule loss”) of his hand. [In cases involving injuries to limbs (hands, feet, arms, legs, fingers or toes), if there is a permanent loss of function of the limb the client may be entitled to a money award in addition to payment for time out of work.] Our client’s doctor reported and testified that there was a 47.5% loss of use of the hand, and the insurance company’s doctor claimed it was only a 20% loss. The judge awarded the 47.5% figure, which most lawyers would have considered a victory. Not Grey & Grey. Having studied the Board’s guidelines for schedule loss, we appealed the decision and argued that both doctors had been too low in their evaluations. On the appeal the Board agreed, and made an award for a 75% schedule loss – almost double the treating doctor’s report and almost quadruple the insurance company’s doctor’s opinion.

Heart attacks and strokes: Year in and year out, Grey & Grey litigates these claims against determined resistance by the insurance companies, winning many cases against the odds. One such case involved a man who worked as an auto repair mechanic for 32 years, in which he was exposed to asbestos and chemical fumes. Although he had a heart attack in 1990, he did not know that it was work-related until 2000 – by which time the two-year time limitation to file an accident claim had expired. Grey & Grey took the case anyway, arguing that the client’s heart and lung problems were due to his occupational exposure, and that in an occupational disease case the time limit should run from when he learned that his work was the cause of his problem. After hearing testimony from the client and four cardiologists and pulmonary specialists, the WCL Judge decided in favor of the claimant on all grounds, awarding him $400 per week for the rest of his life.


Chemical Exposure: One interesting case involved an ironworker who was exposed to argon gas while welding beams. Because he was working in an enclosed area, the argon gas caused a lack of oxygen, resulting in damage to the part of the brain that controls balance. As a result, the man now suffers from vertigo and is permanently disabled from work. The insurance company contested the case, denying that the argon gas exposure caused brain damage, and claiming that the man’s problems were the result of head injuries 20 years ago. After litigation, the Workers’ Compensation Law Judge found in favor of our client and awarded him $50,000 in back payments plus continuing payments at the maximum rate of $400 per week. Our trial work was so convincing that the insurance company paid the award without an appeal.


September 11th: A volunteer firefighter suffered pulmonary and psychiatric problems as a result of volunteering at Ground Zero. After paying benefits for a period of time, the insurance company refused to make further payments, contending that the man had no loss of “earning capacity” which is the test for volunteer firefighter benefits. One basis of the insurance company’s defense was that the client had written a book about his experience as part of his therapy. After extended litigation, a judge found that the man was permanently partially disabled and entitled to $268 per week (a rate fixed by law for moderately disabled volunteer firefighters and ambulance workers). The award was upheld on appeal. While you may be surprised that an insurance company would deny benefits to a Ground Zero volunteer, it is unfortunately not an unusual occurrence.


Lost Wages: People who are injured at work and are not able to return to their old job, but who can do other work for a lower salary are entitled to compensation for some of the lost income. Those who are self-employed, however, often become entangled in arguments about what business deductions are “legitimate” and which ones should really be counted as “earnings” Grey & Grey had a sweeping victory on this issue which may result in an insurance company appeal to the Courts.


Occupational Illnesses: A nurse with hepatitis C was stuck by a needle in 1979. she had been represented by another law firm for many years without results until Grey & Grey took over the case. She received a check for $250,000 for 12 years of benefits at the maximum rate. In another case, we won a decision finding that chronic neck and back injuries were an occupational illness for an operating engineer whose work exposed him to constant vibration and movement of heavy equipment. We also established cellulitis (a skin infection) as an occupational disease for a transit worker who was required to wear a certain type of boots.

Volunteer Firefighters: In claims under the Volunteer Firefighter Benefit Law, careful legal work can make a tremendous difference in benefits. We obtained an award in excess of $100,000 in retroactive benefits plus continuing payments of $887 per week for the widow of a volunteer firefighter who died in the line of duty.


Apportionment: We continue to battle the insurance companies on the issue of “apportionment”.This issue usually comes up where the worker has a previous injury or medical condition, causing the insurance company to argue that it should not have to pay full benefits. Obviously we disagree, and fortunately for our clients we usually win the argument.
In one recent case, our client had a minor injury when she was a teenager. Thirty years later, after an injury on the job, she needed to have a total knee replacement. Based on its doctor’s report, the insurance company took the position that only half of her permanent injury was work-related and that the other half was due to the childhood injury. Although a Workers’ Compensation Law Judge agreed with the insurance company, on appeal the decision was reversed and over $30,000 in additional benefits was awarded to our client. In another case, our client had considered having knee replacement surgery before her work-related accident, but had decided to put if off for as long as possible. After she was injured at work, her symptoms increased to the point where she could no longer avoid having the surgery. Because surgery had been considered before the work-related accident, the workers’ compensation insurance company took the position that it should not be responsible to pay for the procedure. The judge found in favor of our client, and his decision was upheld by the Board when the insurance company appealed.


Asbestos Cases: In another recent decision, our client was the widow of a victim of asbestosis. Like many asbestos victims and their families, she was entitled to file for workers’ compensation and bring a lawsuit against the asbestos manufacturers, which she did.
When an injured worker files a lawsuit, however, the workers’ compensation insurance company usually has a right to recover some of the money it has paid out of the lawsuit (called a “lien”) and may also be entitled to stop paying the injured worker (called a “credit”). In this case, the workers’ compensation carrier had been paid its lien and was arguing for a credit that would end any future compensation payments to the widow.
After a number of hearings that required us to track down documents that were over 15 years old, we proved that the insurance company’s credit was far less than it had claimed. As a result, our client’s benefits were reinstated, with $46,000 in retroactive payments.


Retirement: Our client was working on light duty because of his injuries, and eventually retired due to pain from those injuries. The insurance company refused to make any payments, arguing that the client “voluntarily withdrew from the labor market” by retiring. After a long trial, a judge denied benefits, and accepted the insurance company’s argument that the decision to retire meant that no benefits were due. On appeal, however, the Board reversed the judge’s decision and made an award of over $120,000, with payments to continue at the maximum rate of $400 per week.


Apportionment: In one case, the insurance company argued that although the worker had a 50% loss of use of his leg, 90% of that loss was because of pre-existing arthritis. A judge agreed, and made an award for a 5% loss of use (ten percent of a 50% loss of use). On appeal the Workers’ Compensation Board reversed the judge and awarded the full 50% – a tenfold increase in the award.


Volunteer Firefighter: We won a case for a volunteer firefighter with lung disease. Although the Volunteer Firefighter Benefit Law has a legal presumption that lung disease is caused by firefighting, the insurance company insisted on contesting the case, and hired a doctor who denied that our client’s problems were caused by his volunteer firefighter activities. After we had that doctor’s report thrown out, the insurance company insisted on questioning every one of our client’s doctors. In the end, the judge ruled in our favor, found our client to be permanently totally disabled, and awarded over $70,000 in retroactive benefits as well as continuing payments of $400 per week. The award was upheld on appeal.


September 11th: In one case, our client was employed as an auditor for the City of New York, where her job was to audit programs. After 9/11, she was reassigned to give out benefit checks to people and businesses that were displaced by the World Trade Center attacks. As part of the reassignment she was transferred from her office to the field, where she worked at different sites in lower Manhattan that were set up as help centers. The Workers’ Compensation Board ruled that her work was not rescue, recovery or clean-up work and therefore that she was not covered under the law covering 9/11 workers.
The Court reversed the Board’s decision, writing that “the law was intended to be liberally construed to provide a potential avenue of relief for workers and volunteers suffering ill health as a result of their efforts in the aftermath of the terrorist attacks.” The Court concluded that the Board had not fully considered the worker’s duties in connection with the September 11th recovery, and sent the case back to the Board for a new decision.


Heart Attacks and Strokes: In another case, our client was a track worker who suffered a stroke on the job. Although the hospital record proved that the stroke happened at work, the Workers’ Compensation Board required the worker to produce additional medical evidence, even though the law presumes that an injury that happens at work is caused by the work. The Court stated that “the record is clear that neither the Workers’ Compensation Law Judge nor the Board gave the claimant the benefit of that presumption” and that it was the employer’s obligation to prove that the stroke was not work-related. Again, the Court reversed the Board.