Employers who discover, too late, that the carrier/TPA will be paying a substantial amount for a claim that shows no objective signs of disability are learning a little late that workers compensation claims have built in presumptions that make it far easier for a worker to receive benefits. Even to the point of awarding benefits where there is little, or even no disability.
The presumptions were part of the original 1914 law, but were there for very different purposes than exist today. The key presumption is that, ABSENT EVIDENCE TO THE CONTRARY, an accident that occurs on the work premises, during work hours, is presumed to be related to work. In 1914, only traumatic injury to workers for a few inherently dangerous employments were covered. There were almost no ways an injury could occur unless it were work related. [WCx]
However, today the presumptions have come, informally, to mean that every claim is presumed to be valid, and every injury is totally disabling and lasts forever (as long as timely medical reports continue to be filed). Furthermore, the workers do not have to be engaged in dangerous activity, and the injury does not have to occur at work or during work hours.
BUT that is the informal meaning. The law itself has not changed.
The slack interpretation came into being when information from employers failed to keep up with the overall growth of claims. Judges, and the Board, found that they could keep up by expanding the use of presumptions as a substitute for evidence, even though the expansions were not what the statute intended.
If the employer wants the carrier/TPA to limit the ravages that presumptions can cause, it must, from day one on a claim, provide more information. This information must be provided to the carrier/TPA, the Board, and the attorneys for both sides. Not all information provided will be a game changer, but little or no information will result in business as usual.
One might think that a substantial input of information just annoys people accustomed to working in an environment of silence (and, therefore, presumptions), but the very opposite is true. All persons in the claim process respond to challenges, but they are seldom challenged properly. And “all persons” includes the judge, the lawyers, the doctor, the adjusters and even the investigators. [WCx]
The employer does not have to make the final decision of what information will be used as evidence; lawyers for all parties will joyfully volunteer for that task. Nor should the employer think that only “damaging” information is being sought. ANY information which gets a claim to the correct result as soon as possible is welcomed. Hiring proactive, responsive defense counsel is a good place to begin.
See also our New York Workers Comp Rules and Regulations guide and resources in our state by state guide in our legal library.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. [email protected]
WORKERS COMP MANAGEMENT MANUAL: www.WCManual.com
MODIFIED DUTY CALCULATOR: www.LowerWC.com/transitional-duty-cost-calculator.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: [email protected].
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