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When it comes to filing a workers’ compensation claim, there are several factors that come into play. One significant factor that can greatly impact the outcome of a claim is the individual’s medical history. The medical history of an injured worker can provide valuable insight into the severity and nature of the injuries sustained, as well as any pre-existing conditions that may have been aggravated or exacerbated by the workplace incident.
In this blog, our workers comp lawyers explore the effects of an individual’s medical history on a workers’ compensation claim and the challenges that may arise when establishing a direct link between workplace incidents and injuries.
In order to understand whether your medical history can be used against you, it is helpful to understand the term eggshell claimant. In other words, you come as if you are in good health or not so good.
Your medical history can be used against you in New York State if you do not disclose it. If you injured your back in the past and now you have a new back injury, and you say that you’ve never had a back injury, then the lie can be used against you. You need to disclose the injury and provide the insurance company with a HIPAA release. But only authorize the HIPAA release for the affected body part.
If your work injury is to your back, and you’ve never had a back injury, you are under no obligation to tell them about your foot fracture that you had two years earlier. You only have to disclose your prior medical history related to the same body parts that you’re claiming in the workers’ compensation case.
Warning: If you are asked to sign a HIPAA release, make sure that you limit it to the injured body parts. Do not give them a blank HIPAA release.
If you give them a blank HIPAA, they’ll get your entire medical history, and they will try to use that history against you even though it has no bearing on your workers’ compensation case involving a fractured ankle. The insurance company might delay or deny your workers compensation because they found that you couldn’t work because of an ankle injury two years ago. They may try to make your injury about the previous injury. “He’s not working because of his previous ankle injury.” Insurance companies will look for any reason not to pay an injured worker.
Unless the employer has cause to believe you were on drugs at the time of the accident, the list of medications you are on or were on in the past is generally not disclosable.
It’s always best to go back to work even if you can’t go back full-time, full-duty. If your average weekly wage was set at $900 and you are able to go back to a light-duty part-time position making $450 a week, you are eligible to receive reduced earnings. You’re entitled to two-thirds of the difference of your full-time wage ($900 – $450 = $450), which would entitle you to about $300.
In New York State, if you have an injury to a limb and you have permanent damage, you may be entitled to what’s called a Schedule Loss of Use award, which is an award that is made for a permanent injury to a limb, i.e., an arm, hand or leg. Once you return to work full time, full duty, any payments that you received while you’re not working due to the injury are deducted from your schedule loss of use award.
If you are entitled to a $10,000 scheduled loss of use for an arm injury, and the insurance company paid you $5,000 by the time you return to work on full-time, full duty, you would receive the difference of $5,000. If your employer paid you a salary of $7,500 while out, your employer would be reimbursed, and you would receive the balance of $2,500. If you return to work on part-time, light duty, which results in no decrease in your normal income, thus not losing any time from work, you would receive the $10,000.
Injuries that do not involve a schedule loss of use ( i.e., arms, hands, legs, etc.) are evaluated for a Loss of Wage Earning Capacity (LWEC). The medical permanency guidelines set forth the criteria and factors the medical practitioners use to set forth the medical impairment rating. The Judge will also take into consideration age, education, and prior work and life experiences.
If an injured worker is found to have less than a total disability either by his or her own doctor or by the Judge, the injured worker is obligated to demonstrate “labor market attachment.” In order for an injured worker to prove they are attached to the labor market, he or she must make reasonable efforts to obtain gainful employment that is consistent with his or her medical restrictions.
If an injured worker fails to make reasonable efforts to obtain gainful employment consistent with his or her partial disability, the weekly benefits that the injured worker has been receiving will be stopped. Once the workers compensation benefits are stopped, it is extremely difficult to get them again.
For more information on Worker’s Compensation Issues In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by contacting us today.
New York Workers Comp Lawyers & Social Security Disability Attorneys
