August 5, 2021

Workers’ compensation cases are often controversial, and pre-existing medical conditions add to the confusion as to whether or not one is eligible in receiving their claim. Work injuries happen very frequently and are likely to arise from working in physical industries like construction, manufacturing, agriculture, and transportation jobs. Those who have a pre-existing injury are much more at risk to get injured working in these fields than those who do not. 

In the result of a workplace injury, workers’ compensation must be paid. However, employees with pre-existing conditions unfortunately get denied from their work place injury claim far too often. For this reason, we want to make sure you know and understand all of the facts and regulations regarding pre-existing injuries and workers’ compensation. We will also cover how to have a plan of action in the event you encounter a situation where this applies to you or someone you know. It is our goal to help you obtain the compensation you are entitled to. 

What is a Pre-Existing Medical Condition? 

It is important to point out what exactly a pre-existing medical condition is. As defined, a pre-existing medical condition is any condition or injury that existed before the workplace injury. Many people deal with pre-existing medical conditions on a daily basis. Some conditions may be severe and create challenges with everyday tasks such as chronic back pain. 

Contrarily, other pre-existing medical conditions can be as minor as an injury that flares up every once in a while. For instance, a high school ACL tear injury from playing a sport may be healed from surgery, but can act up when you do certain motions or put too much pressure on it.

Pre-Existing Conditions Examined Under the Law

Under New York State law, it is stated that If the condition is due to a previous work-related injury in which you have been receiving workers’ compensation for, then you can be eligible to receive additional workers’ compensation if it is further aggravated or has contributed to another condition.

It can be a tough call to make if you are unsure if your pre-existing condition has become worsened from performing a work-related task. A good rule of thumb to follow is : If your work responsibilities caused the pre-existing condition to once again require care and treatment. Therefore, if you find you need to seek additional medical help, you are most likely experiencing an aggravation of your pre-existing condition. 

How do you prove that Aggravation to a Pre-Existing Injury Happened? 

It is very important that an employee is able to prove that the aggravation happened at work or else they will not be able to receive their additional benefits. In other words, one must need actual proof that their pre-existing condition was made worse from a work related task. It is not good enough to simply state that your pre-existing condition is acting up and bothering you for you to receive the additional workers’ compensation. 

So, what can you do to prove this? One way in which you can accomplish this is by getting medical attention from an experienced workers comp doctor. Documenting your injuries right after the accident is crucial and it will help strengthen your case. Also, you must inform your doctor about any pre-existing conditions and let them know of any symptoms or injuries that have worsened or changed after the accident. 

Finally, you should follow up with your original pre-existing condition treatment provider. This way, you will have a record of your initial report from the injury and be able to point out any new changes or symptoms that occurred since this accident. 

The Degree to which the Injury was Caused by a Work Environment 

There are several scenarios where pre-existing conditions can make it confusing when determining how responsible an employer is for a new injury. Let’s say, for example, a worker gets his hand caught in a machine and now his hand has permanent damage. However, in his previous job, he had already injured this hand and therefore was at a disadvantage working in his current job with limited functionality. 

The question now raised from this scenario is: To what extent is the current job responsible for his permanent hand injury? This will require lawyers as well as an examination from a doctor. it is especially important to analyze the medical records and use them to make a comparison between the new injury as well as the old injury charts. 

Losi & Gangi is here to make sure you get the benefits you are entitled to. If you have any questions regarding pre-existing medical conditions when it comes to reviving workers’ compensation benefits… contact Losi & Gangi to speak with one of our workers’ compensation lawyers at (716) 854-1446

Article Adapted from:

https://www.injuredcalltoday.com/do-pre-existing-conditions-affect-your-workers-comp-claim-in-new-york/

If you have recently been injured and are seeking workers compensation benefits, you will have to show that your injury or illness is work related.  Typically, if you were doing something for the benefit of your employer and you became ill or was injured as a result, then your injury or illness can be classified as work related.  You must meet the following eligibility requirements  to receive benefits: 

• Be an employee 
• Your employer must carry workers’ comp insurance 
• You must have a work related injury or illness 
• You must meet your state’s deadlines for reporting the injury and filing a workers’ comp claim 

Here are some common situations: 

Lunch Breaks

Usually, injuries that happen on an employee’s lunch break are not considered work related.  If you were hurt while eating lunch on the company’s premises (lunchroom or cafeteria) the injury will generally be considered work related unless you were doing something during the lunch break that wasn’t allowed or fell within exceptions to workers’ comp coverage.  

Company Events 

If your company sponsors special events like parties, picnics or sporting games, injuries that occur at these events are usually considered work related.  There can be an exception if the employer doesn’t require their employees to participate in the off-duty events.  

Travel 

Under the “going and coming rule,” workers comp generally doesn’t cover injuries sustained during your commute to and from work.  There are exceptions to this rule including: 

• Driving a company vehicle 
• Required to bring your own car for business use during the work day 
• Doing special errands for your employer 
• Traveling on a business trip 
• An employee who regularly travels for work or doesn’t have a regular fixed work site 

Misconduct

If you were injured while breaking a workplace safety rule or doing something that your employer has prohibited, your injury might still be covered by workers’ comp.  This is part of the workers’ compensation bargain. Employees do not have the right to sue their employer for work-related injuries but those injuries are usually covered by workers’ comp regardless of fault.  There are some exceptions to the rule.  For example, workers’ comp usually doesn’t cover injuries that happen because an employee was under the influence of alcohol or using illegal drugs.  Several states rule our workers’ comp coverage when the injured employees were: 

• Trying to hurt themselves or someone else 
• Committing a serious crime 
• Horseplay
• Breaking a workplace rule on purpose 

Illness, Cumulative Injuries and Stress-Related Conditions

Workers’ comp may also cover cumulative injuries developed over time (repetitive stress injuries RSIs) occupational diseases and other illnesses resulting from on the job exposure and physical or psychological illness resulting from workplace stress.  In these cases, it may be difficult to prove that the illness or injury is work related especial in the case of infectious diseases like COVID 19.  If a pre-existing condition was irritated at work, it could possibly be considered a workplace injury.  

If you have questions regarding your injury or illness call Losi & Gangi today at 716-854-1446.  Our attorneys will help answer all of your questions and find out whether you might be eligible for benefits under worker’s comp.  

Article adapted from: https://www.nolo.com/legal-encyclopedia/workers-compensation-injury-or-illness-32964.html

Under New York State Workers Compensation Law, a death will be deemed compensable if the Estate proves the Claimants work or work injury contributed, predicated, or played a part either directly or indirectly in the decedents demise.

Additionally, there are multiple presumptions in favor of the Estate that can be used in proving causation of the death to the decedents work.

After protracted litigation, Losi & Gangi was successful in obtaining benefits for two Estates in death claims under the Workers Compensation Law.

A registered Nurse working for the Buffalo Psychiatric Center was originally injured on 10/13/2010. She hurt her back, right shoulder, and neck. She had multiple treatments including surgeries and medications including opioids. Unfortunately, on 5/15/2013 the claimant committed suicide. On behalf of the Estate, Losi & Gangi claimed that the Claimants ultimate suicide was related to her pain, treatment, stress and opioid medications from her ongoing Workers Compensation Claim.

After protracted litigation, and shortly before trial, Losi & Gangi was able to obtain Workers Compensation Benefits for the claimant’s husband and two daughters from her date of death until present. Additionally, the husband will continue to receive weekly benefits for the rest of his life.

In a second death claim, Losi & Gangi obtained a settlement for the widow of a local Attorney who worked for a Personal Injury Firm.

The claimant was a 43-year-old attorney who, while arguing a motion in court experienced sudden onset of sharp and severe leg pain. He suffered an aortic dissection and was rushed to the hospital. After a lengthy hospital stay, the claimant ultimately perished due to multi organ failure and infection.

The defense presented evidence that the death was not related to his employment but rather it was due to some previous health issues. 

Just prior to trial, a settlement was obtained compensating the widow and avoiding the uncertainty of future litigation.

Many jobs require you to perform the same motions over and over everyday.  The repetitiveness of these motions could result in you developing a number of small injuries over a period of time.  Most people think of carpal tunnel syndrome when it comes to repetitive motion pain, often coming from typing and overusing computers but it can be repeated stress on your back if you are a baggage handler or a hospital worker who lifts patients in and out of gurneys all day. 

As small traumas build up over time, these injured employees may need medical treatment and take time off of work to deal with the pain.  Repetitive Stress Injuries (RSIs) include more than 100 types of injuries and ailments caused by the body’s wear and tear over time.  If your job requires you to repeat similar motions day after day you might be at risk of developing this condition.  These injuries are considered compensable and should be claimed under the Workers’ Compensation law.  An RSI, otherwise known as a continuous motion injury, is caused by repetitive stress and strain to muscles and other body parts such as ligaments, tendons, spinal discs and nerves.  If you have this type of injury you might notice constant and reoccurring aches and pains in your hands, back, legs, neck and shoulders. 

Workers in any industry can develop RSIs.  If your job involves repeating any of the following job duties overtime they may become problematic:

• Moving heavy objects
• Computer typing and using a mouse
• Stocking inventory
• Digging and landscaping
• Using machinery and power tools
• Lifting hospital patients
• Lifting a heavy weight (boxes, pallets, loads)
• Standing in the same position

If your injury is not listed, it does not mean it is not an RSI.  This is where you should contact a Workers’ Compensation attorney to answer your questions. 

The RSI category is very broad and the intensity of pain and discomfort varies case by case.  Common problems include:

• Carpal tunnel syndrome – specific nerve damage in the wrist, which can lead to aches, numbness and tingling in the hand or fingers.  This is common in jobs that require computer, shifting or joystick use.
• Irritation and inflammation of a bursa, which is a fluid filled sac that helps cushion a joint and is often associated with overusing joints, carting heavy items and reaching overhead.
• Tearing and irritation of the tendons, which connect bones to muscles and can be linked to overusing or over-stretching specific muscles
• Stress fractures – small bone cracks due to repetitive actions or overloading that could come from running, walking, jumping and other rhythmic actions
• Patellofemoral syndrome – the weakening of kneecap cartilage due to repeated kneeling, squatting and climbing
• Epicondylitis – otherwise known as Tennis Elbow, which causes swelling and pain in the elbow often due to joint strain and overuse
• Plantar Fasciitis – inflammation of the fibrous tissue along the bottom of your foot that connects your heel bone to your toes

It is important not to ignore warning signs of RSIs.  Your injuries might build up slowly but they can lead to pain that can be just as intense as a dramatic accident, like a fall. 

If you notice any of these problems you may have an RSI:

• Joint or muscle weakness
• Hypersensitivity
• Tingling or numbness
• Lack of endurance
• Clumsiness
• Hands and joints feel like “dead weight”
• Coldness in your hands that won’t go away
• Using your non-dominant hand to avoid pain in your dominant hand
• Adopting “awkward” posture to make common actions more comfortable

You may be susceptible to these injuries if you work in a high stress job, use a computer for several hours a day, are not active and lead a sedentary life, have loose joints and are sleep deprived.

If you are having similar problems and think you have developed an RSI from repeating the same motions at work, you could be entitled to Workers’ Compensation.  You should report your injury immediately to your employer and seek medical care.  The attorneys at Losi & Gangi can help you file a claim and advise you on your benefits.  Call us at 716-854-1446 and we can start working on your case today. 

Article adapted from: https://blogs.lawyers.com/attorney/workers-compensation/are-wear-and-tear-injuries-compensable-59768/

Workers’ compensation fraud occurs when someone willfully makes a false statement or conceals information in order to receive workers’ compensation benefits or prevents someone from receiving benefits to which they might be entitled.  The people who may be committing this fraud can be employers, employees, providers or anyone else involved in the system. Unfortunately, the people that commit workers’ compensation fraud are making your premiums higher, higher prices on goods and services and lost pay due to draining business profits. 

When employers commit workers’ compensation fraud, they are usually doing this to avoid paying workers’ compensation premiums.  Employers can use a variety of tricks to accomplish this goal such as using shell companies.  Shell companies are inactive companies without significant assets that can be used to disguise business ownership from law enforcement or the public. 

Here are a few examples of Workers’ Compensation Fraud

Claimant Fraud

• Malingering or exaggeration of symptoms
• Working while allegedly disabled and not reporting income
• Claiming a job-related injury that never occurred
• Claiming a non-work related injury as a work-related injury
• Falsifying mileage reports

Employer Fraud

• Underreporting payroll or misclassifying employees for lower insurance premiums
• Deducting premium dollars from employee’s wages
• Employer knowingly fails to have necessary workers’ compensation coverage

Medical or Health Care Provider Fraud

• Providing unnecessary testing or treatment of injured workers to reap financial benefit
• Billing for services or treatment never performed
• Billing the workers’ compensation insurer and the workers’ health insurer for the same services

Workers compensation is a benefit to all employees.  The Office of Workers’ Compensation is there to protect injured workers and if you need help understanding your workers’ compensation rights call the attorneys at Losi & Gangi at 716-854-1446 to help give you all of the information you may need. 

Article adapted from: https://www.thebalancesmb.com/workers-compensation-fraud-examples-4101604

Most employers offer their employees numerous benefits including health and dental insurance, 401K and more. When employees are injured at work, they usually have to go though New York State’s workers’ compensation system to get reimbursed for medical treatment and to receive other benefits.

New York State Employers must carry workers’ compensation insurance through a third party insurance carrier or through a self-insured program set up by the employer. In most cases, employers must get workers’ comp insurance when just one person is hired. Large employers may insure themselves but need to apply with the state and meet very stringent self-insurance requirements. Even if they aren’t required to buy workers’ comp insurance, many employers choose to have it for their employees.

But what happens if your employer doesn’t have workers’ comp insurance? You may sue the employer in a civil court by filing a personal injury claim. In this case you can seek the full amount of your losses without being subject to an arbitrary cap set by law. Most states only pay around two-thirds of the worker’s wage loss for temporary disability benefits only up to a certain amount for a limited period of time. You can also collect money damages for emotional distress caused by your injuries otherwise known as “pain and suffering” and may be able to collect punitive damages which are intended to punish the employer if its bad misconduct caused your injuries. Neither of these can be rewarded through workers’ comp.

If you sue in court it can be a much slower process. It can be months or even years before you see any money through a lawsuit rather than a few weeks with workers’ comp. Since workers’ comp is a no-fault system you will need to prove that your employer was at fault for the personal injury accident. Talk to a lawyer immediately so that you can start the process and make sure your suit is filed in a timely matter.

Many states have special funds reserved for people who are injured while working for an uninsured employer otherwise known as “Uninsured Employers’ Funds”. Under these funds you may be able to get your medical bills covered or receive payments for a portion of your wage loss from it. Check with New York State’s workers’ compensation office for more information on how to file a claim or call the Workers Compensation Attorneys at Losi & Gangi today at 716-854-1446 and we can get you the proper representation you will need in your case.

Workers’ compensation covers all reasonable and necessary medical treatment for an injury or illness that happens at work.  This includes doctors’ appointment, surgeries, Physical Therapy, medications and other treatments.  The doctor who treats your work injury will play a key role in your case by being the one who oversees all of your medical care and giving you opinions that will affect how much you receive in workers’ compensation benefits.  It is very important to find a treating doctor that you can trust.

In 2010, New York State promulgated medical treatment guidelines which provide detailed criteria doctors must follow in order to obtain treatment.  The attorneys and staff at Losi & Gangi are very well versed in working with your doctor to help Injured Workers obtain medical treatment in the most efficient matter.

Being able to choose a doctor usually falls under one of these categories (1) choosing a doctor from a list or medical Network provided by your employer, (2) you choose any authorized doctor or (3) your employer chooses the treating doctor for you.  Losi and Gangi can help you find a doctor who provides treatment under the New York state workers’ compensation law.

In many states, employers have the option of Contracting with a preferred-provider plan, not work, or Managed Care Organization to treat their employees work injuries.  This is a way for employers and insurance companies to reduce costs and control the medical care for workers’ compensation cases.  If your employer has a similar plan to this, you must use a treating doctor for their Network and follow their rules for getting care.  In New York State such a plan only lasts for a short period of time.

In New York you have the right to choose your own treating doctor as long as your employer doesn’t have her provider plan or Managed Care arrangement.  You will need to choose from a list of healthcare providers that the state is approved for treating workers’ comp injuries.  Your employer’s insurance company may limit your options if they have a preferred provider organization (PPO).  If this is the case, you must see a network physician for the first 30 days and may have a specific Pharmacy you have to use.  If you happen to change your treating doctor, the new doctor must be in the workers’ compensation boards list of authorized medical providers.  Your employer may transfer your medical care to a different doctor if the initial physician you choose isn’t authorized by the WCB to treat any workers comp injuries.

In other states, you first have to go to a treating doctor picked by your employer.  Some of these states only require you to see the company doctor for your initial visit or for a certain length of time.  Some workers worried that a company selected doctor may have a conflict of interest and might minimize the extent of their injuries.  If this is true, you may be able to switch doctors if you believe you aren’t getting an adequate care but must follow the rules in your state for changing workers’ compensation doctors.

Here are some tips you should consider while finding the right treating doctor:

1. Consider their experience and understanding of your medical condition
2. Willingness to accept the workers’ comp medical fee schedule
3. Have knowledge of the workers’ comp claim process
4. Willingness to support your workers’ comp claim with detailed reports and
5. Availability for medical appointments

Losi & Gangi can help you with all considerations necessary to find the right treating doctor.

Bottom line – you should choose a doctor you can trust and feel comfortable around.  If you have questions call us today at 716-854-1446 and one of your experienced workers’ comp lawyers can explain the rules in New York state covering workers’ compensation and Medical Care.

Workers’ compensation is insurance that provides cash or medical care benefits for workers who are injured or become ill as a direct result of their job. Employers must pay for this insurance, and may not require the employee to contribute to any cost necessary for  compensation. Weekly benefits such as monetary payments and medical care are given by the employer’s insurance carrier, as directed by the Workers’ Compensation Board, a state agency that processes the claims.

It is not enough to just have insurance as an employer. It is the employer’s responsibility to also provide immediate emergency medical treatment for employees who are injured on the job. They must complete a full report of the injury, with the injured worker’s review and mail it to the nearest workers’ compensation board office within a timely manner.

A claim is paid if the employer or insurance carrier agrees that the injury or illness is work-related. If the employer or insurance carrier disputes the claim, no cash benefits are paid until the workers’ compensation law judge decides who is right. If a worker is not receiving benefits because the employer or insurance carrier is arguing that the injury is not job-related, he or she may be eligible for disability benefits in the meantime. Any payments made under the Disability Program, however, will be deducted from future workers’ compensation awards.

In a workers’ compensation case, neither party is determined to be “at fault”. The amount that a worker receives is not decreased by perceived carelessness, nor increased by an employer’s fault. Although workers’ compensation laws provide treatment to injured employees, they are also meant to protect employers, as they are designed to be the only remedy that injured employees may seek from their employers. One may find that an employer frowns upon employees who file workers’ compensation benefit claims, and some blatantly discriminate against such employees.

Most states prohibit employers from punishing, discriminating against, or discharging employees who exercise their rights under workers’ compensation laws, and allow employees to bring civil actions against their employers for the tort of “retaliatory discharge.”

It is of the business owners best interest to comply with the rules and regulations set forth by the Workers’ Compensation Board. Failure to do so could easily result in further fees, punishments or even lawsuits.

If you or someone you know has been injured at work or is dealing with a workers’ compensation case, call Losi & Gangi at 716-854-1446 and speak with one of our experienced attorneys.

This article has been adapted from information gathered from other sources including http://www.wcb.ny.gov/.