My last article (see February Allegro) introduced four musicians who had developed injuries while working. One of them was Carolyn, a violinist who developed carpal tunnel syndrome as a result of playing her instrument. (A brief description of this condition, and some treatments for it, appears below.) This repetitive strain injury is sometimes treated like an occupational disease and at other times like an accident – but since the condition is due to employment Carolyn should file a workers’ comp claim.
Before proceeding, it is important to identify whether the claim arises out of a single trauma or a repetitive strain – and, if a repetitive strain, whether the musician should proceed with a claim of “accident” or “occupational disease.” Sometimes, to avoid a statute of limitations, you may be better off filing an occupational disease claim. However, such claims must show that the disorder is characteristic of and peculiar to workers in your specific occupation. Every disease contracted while at work is not an occupational disease. For example, if you were to be exposed to TB while working as a musician that would not be an occupational disease claim, since such exposure is not typical for musicians.
An employer can controvert, or challenge, your claim on various grounds. Generally they will contend that your CTS is not “causally related” to your specific work activity or that other causes, besides work, contributed to the condition. Even when the employer is not inclined to challenge your case, your employer’s insurance company can do so. The carrier will be represented by an attorney and you should have one, too.
REASONS TO RETAIN A LAWYER
An attorney can obtain clarifying reports from your doctor, refer you to hand specialists, represent you before the Workers’ Compensation Board, cross-examine adverse witnesses, and present your case in its most favorable light to the Workers’ Compensation Judge. S/he can also advise you of your specific rights, entitlements and benefits should you prevail in your claim, and ensure that you receive the maximum award allowable under the law for your type of impairment.
In most states, including New York, lawyers’ fees are paid out of your workers’ comp award or out of an eventual settlement. You will not have to pay the lawyer out of your pocket. Lawyers do not charge for an initial consultation on workers’ compensation matters. In fact, in New York it is illegal for a lawyer to accept money directly from a claimant for fees in a workers’ comp claim.
The workers’ comp system provides a mechanism for paying medical bills and replacing a portion of lost wages for workers who are injured on the job. But, as with any government bureaucracy, things rarely go smoothly.
If your claim is contested or controverted you will have to “prove your case” to receive benefits. Ultimately, doctors may have to appear and give testimony, as will you and any witnesses. So whenever you are injured as a result of an obvious accident on the job, you should ask witnesses to sign statements as to what they saw. (Of course, with a slowly developing malady like carpal tunnel syndrome, no witness actually sees it happen.)
If your case is controverted it is especially important to retain a workers’ compensation lawyer because the issues can quickly become complicated. Even if you really don’t want a lawyer the Workers’ Compensation Judge may urge you to get one – because it is difficult for a judge, who is supposed to be neutral, to protect your rights.
If you win, the carrier will likely appeal and you will need an attorney to respond. It is unlikely that an attorney will want to handle an appeal if s/he didn’t create the “record” at the trial hearing. If you lose, you will need an attorney to write an appeal for you, and the same consideration applies. Since appeals must be filed within 30 days of a decision, it is difficult for an attorney to step in late in the game and get up to speed on what has already taken place. Don’t wait until it is too late to seek counsel.
Some workers have lost claims for compensation because they filed them after the statute of limitations had expired. Others have lost after their employers raised questions about the cause of the disability, linking it to outside activities like sewing or even fishing. Courts have also ruled in favor of employers who pointed to other conditions linked to carpal tunnel syndrome, such as diabetes and obesity.
PROBLEMS WITHIN THE SYSTEM
Expect long delays before a hearing. The workers’ compensation system is jammed and boards cannot keep up with their caseloads. It may take a year before you get your first hearing. If your employer has not controverted your claim, you will probably be able to get medical treatment before your hearing. However, if your employer is challenging your claim, you will have to wait. And if your doctor does not file a report saying you developed CTS from your work activity, you may never get a hearing! Files may be lost or may not be transcribed, adding to the delays and frustration. The New York State Workers’ Compensation Board recently computerized its system, a move that may eliminate some of the log-jams.
Your treatment may be delayed. This is particularly maddening for people with CTS. Even though you may be willing to pay your doctor and therapist up front for treatment, this is illegal in some states if you have filed a workers’ compensation claim (is it legal in New York?) and you may have to wait. If you have to appeal your case, it can take years. It’s unfair, but that’s how the system often works.
Some doctors don’t accept workers’ compensation cases because of the lower fees mandated by that system, and the burden of additional paperwork. And some specialists whom you may want to see, like a rheumatologist, have little reason to accept workers’ compensation because most of their patients don’t have work-related injuries. However, this has been changing as doctors get frustrated with the restrictions under HMOs. Some are now finding workers’ comp cases more attractive to handle than they used to be.
An independent medical exam is routine practice. However, it may be particularly difficult to receive one for CTS because many doctors are still not familiar with the condition. A doctor unfamiliar with your case may not understand that certain movements may cause your symptoms to flare up later.
Payments are often delayed, even after you establish your claim. Your workers’ compensation carrier may delay issuing checks, often for months, disrupting your relationship with therapists and doctors. There may be miscalculations in what you are owed. It’s important to keep a record of every check received from the compensation carrier as well as careful track of expenses. You should be aware that you are entitled to mileage reimbursement to and from medical appointments, and to reimbursement for adaptive devices, if authorized. Calculate the amount you are owed yourself, submit receipts, and keep copies.
THE BOTTOM LINE
Despite all these hurdles, it is definitely worth your while to file a workers’ comp claim because you may be entitled to weekly benefits (two-thirds of your average weekly wage up to $400 a week in New York, and even more in other states) when you are disabled from working, as well as a final “schedule-loss” award for any permanent damage you may suffer. In certain chronic cases, you may be entitled to compensation benefits for as long as you are disabled. And you are entitled to all reasonable and necessary medical care, without any deductibles or co-pays. You may have to fight for your rights – but those rights are well worth fighting for.
Attorney Victor Fusco, a former working musician, practices workers’ compensation, Social Security Disability Insurance and personal injury law, as managing partner of Scheine, Fusco, Brandenstein & Rada, P.C. He is also the host of “Labor Lines,” a program about working men and women and the organizations that represent them, heard three times a week on WGBB-AM 1240 on Long Island. His firm, which has offices in Manhattan, the Bronx, and on Long Island, can be reached at (212) 233-1457 or (516) 496-0100, by mail at Box 307, Woodbury, NY 11797, or via e-mail: firstname.lastname@example.org. There is no charge for a consultation in any of the firm’s areas of expertise.