What is a good case? My notes pulled up here stay up all night working on notes for this one. So today we're going to talk about what makes a good case and you know we hear the terms, do I have a good case? Does my case have value or am I gonna make good money in my case?
Here in New York State I just had this conversation probably about 15 minutes ago where somebody asked me, so you're saying I have a case and the answer is where you hurt where you're working then, yes you have a case. It's usually just as simple as that if you are working in what's known as a covered employment. There's a certain group of jobs that are not covered and whether they're not covered at all where they're not entitled to workers compensation benefits or they're just not covered under general New York State Workers Compensation.
You can look at an NYPD police officer for instance, they're not covered under general New York State Workers Compensation but they're covered in their own set of rules and their own their own laws. So it's not that they're not covered they're just not covered under a New York State claim. But you know if you're a babysitter and you work four hours every weekend well you're not an employee the person that you were babysitting for, so no you're not you're not covered. But aside from those few exceptions, clergy is one of them, New York City's public school teachers paraprofessionals and other people are are covered. But New York City public school teachers are not.
So certain exempted employment are not covered but generally speaking if you're working and you're hurt you're covered. Let's get started with our slides here.
So first foremost like we just said covered employment you have to be somebody who's working in a job that's covered under the law and a big distinction that we run into here all the time are employees versus independent contractors. The factors that that we look at and a judge will look at to try to determine whether or not a person is an employee versus an independent contractor first and foremost they look at the nature of the person's pay and how you're taxed.
Do you receive a W2 or 1099? I've had huge I mean we've had a case with I don't want to say fatal injuries but very close to it loss of limb type of injuries that balance that hinge on this particular question. W2 versus 1099. Being a W2 recipient makes it more likely than not that you're an employee and being a 1099 recipient makes it more likely not that you're an independent contractor. It is they're not dispositive, they don't make or break the case, but they are very strong indicators of whether a person is a employee versus independent contractor so how you're paid and how your tax is very important.
The biggest issue, the biggest question here to determine whether you're an employee versus independent contractor is what's known as direction and control. Does your employer, the person you're claiming to be your boss, your supervisor, your company, do they have direction and control over you? Do they direct your work? So those are the biggest factors. Those are the what we look to when we're trying to prove that there's employment and try to get you your benefits.
Do you wear a uniform, you're provided with a company uniform that you have to wear. Do they tell you where to go and what to do, or you're free to pick jobs as you want? With construction types of jobs or you know manual jobs, tools are a big part of it. Do they provide you with your own tools? Do you do that? Does your company provide you with tools and equipment or do you have to provide your own tools?
If you're bringing your own tools to a job site it pushes you toward more towards independent contractor status. We're not talking about hand tools again looking at construction sites is a big question. Always, who provides the tools? A lot of guys have their own hand tools and hand tools are not going to make or break a case, but who provides the saws and the ladders and all the big stuff that you need to do a construction job. Direction and control. Are you free to accept or turn down a job or an assignment?
If you're free to turn down a job without any negative repercussions you might be an independent contractor. If you're going to get penalized, suspended, otherwise in some sort of trouble for turning down a job or an assignment you're probably an employee. Hiring and firing capabilities. The person that you're claiming to be your employer have the ability to hire and fire you so all those factors are very very important in determining whether or not you are an employee. Direction and control, it's a big buzz word in the workers' compensation world.
Other factors that make it more likely that you're going to receive your benefits are when your accident and your resulting injury are clear and indisputable having a lot of witnesses. It's very important in a lot of circumstances giving notice immediately. "Call an ambulance" and this is coming straight out of a discussion I have with a client earlier today, "call an ambulance." We're putting ambulance here. The reason why a lot of the factors that contribute to a strong case a valuable case a successful claim a maximization of your benefits taking an ambulance to the hospital after an accident and an injury tick so many boxes and satisfy so many requirements that get people maximum benefits and successful cases if you're hurt on the job.
I don't know I guess my number one recommendation call an ambulance. You're not a doctor, your coworkers are doctors. If you're hurt and you don't know how and it's something more than a basic bump bruise scrape or cut go to the hospital and get checked out. There's no reason why you shouldn't or you wouldn't so call an ambulance.
What makes a strong case what makes a successful claim is proper notice under New York state law. You have 30 days to give written notice of an accident or an injury arising out of and in the course of your blood a work related injury. You need to notify your employer within 30 days in writing unless they have actual notice and your boss seeing you laying on the floor and you saying call an ambulance I just fell off the ladder and him calling an ambulance and the ambulance whisking you away to the hospital is pretty sufficient notice that you were injured and they know about it. So the ambulance ride to the hospital checks the box of notice it satisfies the notice requirement otherwise obvious injuries broken arms. You know listen I we nobody wants to get hurt but the more obvious injuries clearly make it easier to display and demonstrate to a judge that your employer had actual notice that you were injured a lack of prior medical history so you know if you hurt that if you hurt your back 15 times in the past and you're claiming to have a new work related back injury.
It's kind of muddy in the waters and it's going to make it a little more difficult so clearing up your medical history and making it clear that your current accident your current disabilities related to this particular accident claim make it easier. I'm not saying you should hide your medical past but just make sure it's clear it's the opposite make sure everyone knows about that medical past this way they can differentiate between old injuries and old problems and new injuries and new problems and it's easier to split them apart and proceed forward with the injuries that you sustained as a result of this accident. It gets you the maximum amount of words for this claim so those are just some initial thoughts on what makes a case strong and successful and valuable.
So if there's a lack of evidence showing that you were injured or that your injury was work related you know that could that obviously is going to work against you when your employer, you know, insurance company has the option when a case is first filed are they going to accept the claim or they're going to deny a case and fight it and if all of the facts are in alignment and make sense and there's no reason you know oftentimes insurance companies don't always deny cases.
A lot of times they look at the facts they look at their exposure how much is it really going to cost them and many times they accept the claim without putting up too much of a struggle. But if a case is going to cost them a lot of money because the injuries are significant or if the facts don't always line up and it doesn't take much to convince insurance company that the facts don't line up they're going to deny your case. They're going to fight your case number. They're going to require you to go in front of a judge to prove your case so that's when evidence is it becomes super important.
And again this is coming from a conversation from earlier today, you don't want it to be your word against somebody else's. You want to have proof and going back to my earlier theme taking ambulance is the first huge piece of evidence. Piece of proof it proves when you take an ambulance anywhere there's an ambulance report called the ambulance call report and it gives the pickup location the drop-off location the medical assessment that the EMTs give you when they pick you up and it lays out the whole groundwork for for a claim right there. This person was picked up at one two three main street and hey your job site where you were working the last six weeks was one two three main street the addresses line up and the EMT reports that this gentleman suffer is complaining of head neck and back pain after falling off a three-foot ladder. "Hey look your claim form says you you hurt your head neck and back after you fell off a ladder." You know it it corroborates your claim, it helps your claim it drives your case forward in a positive way.
So having good evidence, taking the ambulance and getting that report is the first piece of massive piece of supporting evidence.
What else makes a case less successful, a weak case, is missed deadlines. You have 30 days to give notice and you have two years to file a claim once your case is in court and the judge is requiring things of you. They're gonna put time limitations on you. You have 45 days to get a permanency report and you have 60 days to take testimony from the doctors. Judges are gonna put the time limitation on everything, don't miss those deadlines.
Show that you're serious about your case show that you want to be successful here when a judge tells you to do something go ahead and do it. Ask your lawyer what the two of you need to do together to get the job done and be proactive and get it done. Do not expect everyone else to do their job for you and that things are just gonna work in your favor. This goes back to something we always talk about and I putting my listen I love God like the next person but putting your case in God's hands you got you got to help yourself. You got to help yourself and you got to help your lawyer.
Another thing that hurts a case is going against your doctors medical advice. If your doctor tells you to stay out of work then stay out of work. I preface this to my clients all the time, I'll tell them, what is best from a legal perspective. Go back to work as soon as possible but as soon as possible means listen to your doctor first. If your doctor tells you to stay out of work stay out of work. If your doctor's recommending treatment or surgery and you're not sure if you want to follow that advice. Talk to your doctor express your your your concerns with your doctor let your doctor explain why it's important why he thinks treatment a is better.
Controversial cases cases that are disputed and are fought by the insurance company oftentimes can work out to be very successful cases provided you get to a judge. By the same token the insurance company will sometimes throw a monkey wrench into the works to try to slow you down and slow your case down. They'll go and tell your doc your doctor will say my call my patient needs a surgery and they're gonna say well we're contributing this case we don't think he worked for the employer we don't think his accident happened on the job we don't think he's really that hurt. We don't think whatever whatever other defenses they might have and they might tell your doctor we're not paying for the surgery we're not paying for his treatment right now. And sometimes certain doctors that are not familiar with workers compensation will get scared off by that and they won't give you the treatment that you need.
Sometimes that scares people to just say you know, what I'm giving up on my case and I'm gonna put it through my private health insurance let them deal with it. It's not the right way to do it, that's why you need to have a doctor who understands the workers compensation system and you need to have a lawyer who's there to back you. We get calls all the time from clients that say my doctor is he's given me a hard time, if you will call the doctors office will explain the system will explain the workers compensation process especially in a controversial claim and will show them that we're fighting to help you get your benefits and hopefully things are gonna work out. In the end things will be established and treatment will be paid for and you'll get what you need. You'll get better and you go back to work so it's important to get a good lawyer and a good doctor that understand the workers compensation system.
Reporting your accident right away, as I explained earlier, there is a notice requirement the workers compensation will give you 30 days to give notice. Suppose you have you know, to give written notice, unless your employer has actual notice and like I said before getting whisked away in an ambulance is very good notice to your employer that there was an accident. So it checks that box. If you don't get whisked away in an ambulance, you need to make sure your employer knows that you were injured. You need to. If you're not gonna do it in writing you need to let them know, writing is always the best. You know even if it's a text message. We all the time we screenshot text messages upload them up and so the judge could see. "Hey boss, I fell off the ladder and I'm in a lot of pain..." You know, whatever.
It's sometimes family members that you know a person's already in the hospital and they call their wife or their kid and they say oh "...can you let the boss know what happened? I can barely lift up my phone right now..." You know whatever it is, make sure your employer has notice of the accident as soon as possible. 30 days is the rule. I like to see it that day I like to see it that day or the next day if you have to bring them a doctor's note there's some documentation of an accident that's very helpful.
But if you take an ambulance you kind of check it off the box without even trying collect and present solid evidence. It's another way of taking a weak case and turning it into a strong valuable successful case. If you have photos of an accident or an injury police reports witnesses any documentation that supports your claim gather it up put it together talk to your lawyer about it. Taking an ambulance and getting that ambulance call report like we discussed earlier huge piece of evidence could take it otherwise weak controversial floundering case and turn it into a winner. So take your ambulance when you get hurt.
Another thing we discussed earlier don't miss deadlines. Be mindful of the time limitations on every aspect of your claim. Having a lawyer here is what makes this, it's crucial. You're not going to know every single in and out that a lawyer is going to know as to when things need to be filed do and statute limitation and things like that. Also having an attorney is going to help you identify other possible legal actions that you might be able to pursue that are in some way related to your case and this is something that people might not pick up on.
You might have a personal injury matter that arises out of the same accident. So not only you file for workers compensation insurance benefits but you could also potentially sue somebody in certain circumstances. If somebody else other than your boss co-worker something like that is responsible for your injury you might be able to file a lawsuit against that person or that entity and that could result in additional benefits. More money for you.
If you've been out of work for a certain period of time and you fulfill other requirements you might be able to file for social security disability benefits a whole nother realm of federal benefits that might be available to you based upon your disability and the time you're out of work. If your employer has a minute we see this all the time if they're not paying you properly if they're not paying you proper wages if they're not paying you proper overtime certain judge as we know waiters and waitresses don't need to be paid minimum wage they're allowed to get below minimum wage because they make tips, there's other jobs out there that have certain pay requirements that are not as widely known as the waiter and waitress thing and having an attorney helps. Find those and we can pursue additional benefits on your behalf so very very important.
Another way that we we take a weak case and turn it to a strong one is getting medical attention right away and what am I going to talk about here getting in that ambulance it's it is a very good indicator of how bad an injury is. When a person gets taken to the hospital okay you we've all spoken to our friends and they say, "...oh my god he got hurt yesterday how bad was it?" We don't say that you know he had a hematoma we say "...oh he went to the hospital yeah that means it's bad." So getting in that ambulance going to the hospital shows how bad an injury is and it's going to provide you with immediate medical evidence in support of your claim and usually they describe exactly what happened because you go in there and you give them the history and they write it right on that form and you now have a beautiful piece of evidence in support of your claim and you get in the medical treatment that you need to get to start on the road to get better.
Another thing that you want to do to to build a case and to to salvage a weak claim and make it strong is gather all your evidence and again ambulance call reports things like that medical records from the hospital. Getting a doctor who understands the workers' compensation system and getting a lawyer that does workers' comp and understands it is so important.
Your compensation rate, the amount of weekly benefits that you're entitled to and the basis for all the benefits that you're entitled to is your average weekly wage. So obviously the higher wage earners get higher benefits, more money. So you want to make sure that you're able to document that you have clear documentation tax returns pay stubs of all your your earnings this is especially important in the car service uber/lift world. Those that are covered, they are not all covered, not all.
Car service and delivery drivers are covered but those that are covered are subject to what's known as an industry standard and say pitifully low average weekly wage that is automatically established in their case and it's up to them to prove that they earn more. More often than not you do and especially now with with everything done by computers and credit cards it's it's very easy put your tax returns together get into your lawyer let them prove what you were earning at the time of your accident and get you more money.
Equally as important in achieving higher awards, your average weekly wage and your level of disabilities the other component the other half of that that equation so making sure your doctor properly documents your injury making sure your lawyers fully aware of it and is able to to set your case forward in most favorable light to maximize the amount of money. Your salary and your disability are what are put together to determine how much you're entitled to and that's not just while you're temporarily disabled.
But once you're deemed to have a permanent disability at the end of your case future medical costs also factor in here in terms of especially when you're evaluating a case for settlement purposes, we want to figure out how much of cases worth. How much money is the insurance company gonna have to owe you and how much they have to owe overall in your case so might not be money going you. Might be money going to medical treatment surgery testing whatever it is down the road and those future medical costs we do try to factor in and every case is different. How we do it sometimes, we were forced by Medicare to do it one way, sometimes we do our own estimates. But the cost of your future medical medical care is certainly a factor in determining the overall value of a case the age work history of the injured worker the strength of your evidence having a lawyer is super important here because we're able to put all those pieces together and present your case in the best way possible to maximize the value.
Well you know what I'm gonna say here the the theoretical ambulance or the actual ambulance, take an ambulance if you get hurt. And it's more than just a boo boo call an ambulance get checked out get taken care of it's certainly gonna help you. It's gonna help you get better it's gonna make sure you're not gonna die very important your cases the value of your case is meaningless if you're up there to sign the back of the check. So if it's more than a minor injury please take an ambulance.
But the reasons for that or the reasons we discussed it checks those boxes it puts your boss on notice of an accident it provides you with upfront immediate medical care it documents that the seriousness of your injuries. It documents what specific in particular injuries you suffered. It lays everything out in a super up front manner that makes the process of that case down the road much smoother for you easier. For your attorney to get you the most amount possible salary like I said before double check your salary provide your lawyer with those pay stubs provide your lawyer with those tax returns sit down with them and go through everything I go talk to my clients all the time and I'll show them the document that the insurance company has produced I'll say this is what they say you earned the for these weeks you are in this much and this is what they're saying you earned overall and I'll give them a copy also take it home compare it to your pay stubs if you see any discrepancy bring everything back to me let's sit down let's go through it we'll figure it out. We'll try to get you more money and we found money for people doing that it's it's work and it's required but you know you got it you got to be you got to be a part of your case and help your lawyer.
Another big thing and this is this goes for lawyers as much as it goes for injured workers is talking in court. I am a huge proponent of the concept of less is more when you are in court answer the questions that you're being asked and don't go you can't answer every question in one answer this is we have this discussion all the time when we're talking with prepping our clients for trial. Take a breath listen to what they're asking you answer the question and wait for the next question you're not going to be able to give the whole synopsis of what happened to you in this huge injury in this huge accident the closest massive injuries in one answer. Let your lawyer ask you a question and answer that question and don't give them any more than that because if he wants more he's gonna ask you for more pushing so don't talk too much less is more another way to increase the value of a of a workers compensation case settling it at the right time.
We've had many many videos where we discussed how to maximize the value of your case settling you want to strike with the while the iron's hot. You don't want to wait for the bitter end of your case when all your treatments been washed up and dried up and there's nothing else and you've gotten 90% of your benefits you know there's no value left in your case anymore you want to get where while the the pig is still fat. And you want to try to get as much money as you can and ride off into the sunset and that's something that really a lawyer is going to know when way better than you so make sure you have a very good lawyer.
Everyone I'm Rex Zachofsky, your workers compensation attorney and my number is 212-406-8989. Me and my wonderful staff here always available to answer your questions if I'm not here personally if I'm on a call on a deposition on a hearing doing a live and I can't answer your questions but please my well-trained staff can answer most questions and anything that they cannot get to I will certainly get to.
Now to answer some questions coming in here. "Could you explain a little about what a workers compensation trial is like and what are your best tips for winning a court case?"
So when you get to the point where you're having a trial that means the medical has been identified the witnesses have been identified the the framework of the claim, of what you're really looking for is laid out and you go in there and you're asking your client questions about the accident who were you working for what were you doing on the day of the accident. Please tell us what happened, what body parts did you hurt, notice like I said before did you give proper notice? Did you take an ambulance? Are you still working? What you're earning, basic questions. We just want to get the basics out of the way the insurance company has the right to cross-examine you.
I have a question here, "The defense submitted partial video footage of my injury that only supports their motion, can they get in trouble for only submitting video and only supports their motion and then what are the penalties for not submitting?"
I don't know if there's necessarily penalties but as your lawyer I would be arguing that I want the full raw uncut unedited footage and I want to show that if you're gonna rely on this video to support your side of the story and you've edited it. Well that's a horrible word to have if you've provided edits to show your side of the story I want to see the whole video from beginning to end so talk to your lawyer about that.
"Hi Rex, can you tell me the difference between an award versus a settlement?"
They're loosely used terms. An award is any is money. An award of compensation a settlement, is an award one week of workers compensation benefits. Is an award technically the receipt of medical treatment, is an award of medical treatment. So an award is anything. You're getting a settlement generally is when you resolve an issue or an entire case by an agreement between the two adverse parties. So when you're settling you can settle a portion of the case. So you could say well we're claiming that this six week period from January 1st to March 1st or that's an eight week period are related and they should be compensated for and they say no and will come up with a number, we could settle a small portion of a case or we could settle the whole case. That's usually an agreement amongst the parties that is approved by the judge so that's that's just generally that's there between a settlement and an award.
"Good afternoon lawyer, my doctor's deposition is completed. What is the next step?"
The next step could be on going back to court. Go back to court and let the judge make a decision hopefully in the meantime your lawyer can try to work something out. The next step is always negotiation at least as far as I'm concerned. No matter what stage you're at in the case you always want to try to keep the lines of negotiation open and have that out. I like to give my clients options.
"Is there a time limit to submit all evidence before a trial?"
Yes and no. Some judges will give you a time limit to get certain things in but you could also present your certain evidence at the trial. You walk in with it or you sign on with it, you upload it to the file and it's there and you can handle it that way. Workers copies relax rules of evidence, relax rules of discovery, so sometimes there is no time limitation. You could walk in with new evidence and you got to deal with it so yeah good question.
Thank you for joining me today again my name is Rex Zachofsky and you can reach me at 212-406-8989. Thanks everyone, have a great day.
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