Good afternoon everybody. On an otherwise dreary day, welcome to another live.
I am Rex Zachofsky, your workers' compensation attorney, here to help. Today we're going to discuss a hot topic, Surveillance, Workers' Compensation Surveillance. If anybody has any questions, please feel free to chime in, whether it's on Instagram or Facebook. Please, if any questions, I'm here to help. If anybody wants to call, my telephone number is 212-406-8989.
Workers' compensation surveillance is generally conducted by the insurance companies, and they are trying to catch you being bad. We all know for the most part what surveillance entails and what they're looking for. They're looking to catch you misrepresenting yourself.
So if you go to your doctor and you tell them that you can't do anything and you're totally disabled and you can barely walk one block and you can't lift more than five pounds and you're in agonizing, excruciating pain. So if you tell us to the insurance company doctor, if you tell it to the judge in court or the insurance company when they're questioning you in front of the judge, they want to catch you being less than truthful.
They want to catch you misrepresenting yourself. So if you tell your doctor or the insurance company doctor that you can't walk more than a city block and they catch you walking four blocks or five blocks or ten miles a day, they're going to use that against you. If you tell them you can't sit for more than five minutes without being in pain and they're going to get up and change position and they catch you driving a car for a half an hour, they're going to try to use that against you.
So insurance companies spend a lot of money on surveillance because they're trying to catch you because the money that they spend on surveillance, if they're able to prove that you're being less than truthful, if they catch you in a lie that's going to be used against you, then they don't have to pay you anymore, most likely. We've discussed insurance fraud in the past and the penalties that come with fraud. If you're caught being fraudulent, workers' compensation fraud, there are two penalties that can attach. There's actually three. The first one is if you're caught committing fraud, you could be prosecuted criminally. You could be referred to the district attorney, you could be arrested, you could be prosecuted as a criminal. When fraud is raised, you have to speak to a criminal attorney. You have to watch what you say at that point. We don't want you going to jail. The other penalties that can attach to a fraud finding, there are mandatory and there are discretionary penalties. The mandatory penalties are the benefits that you receive that are directly attributable to the fraudulent behavior are forfeited and a judge can find discretionary penalties, which more often than not is a complete forfeiture of all of your indemnity, your money benefits.
Usually, that's what happens. I have had cases where a judge will find a mandatory penalty disqualifying somebody from benefits for a period of time, and then a discretionary penalty word might be another six months of workers' comp awards. But generally speaking, if they're finding fraud, they're finding fraud, and you're going down, and all your benefits are going to be lost. We've discussed that before.
I will post a link to the fraud video here.
So, yeah, it's paid for by the insurance company. It's conducted by investigators. And generally speaking, the investigators, as much as people, my clients will come in, the ones that are having this issue, and they'll say, "Oh, I know I'm being followed." For every one of you that knows you're being followed, there's 10 of you that don't realize you're being followed. Why? Because the investigators, the private investigators who do this, are not idiots. Most of them are law enforcement, former law enforcement, retired cops. They know what they're doing. Even when they're not specifically following you and surveilling you with video, they know what they're doing. They know how to get information that is beneficial to their cause, and they're not idiots. So, again, for every one of you that says, "Ah, I know there's a brown view. It parked up the street that's only been there for a week. I know who that is." There's probably 10 of you that don't realize what's going on. So, please, be mindful of that, because surveillance is happening more and more. Insurance companies are being successful with it, and with every success that they get, they're doing it more and more to try to limit their exposure. And that's all it comes down to.
You know, people take it personally, and I certainly would take it personally if it was being done to me. Insurance companies don't really care. They don't care who you are. They don't care about you and your family. It's exposure, and it's a monetary thing. They want to keep from spending money. They want to save as much money as possible. They're a business like any other business, and the way they stay in business is by making money. And making money includes not spending it and not giving it out if they can keep from doing that. So, that's what happens here.
Here's a good question, "What if an insurance company does fraud?"
Well, it's very tough to prove. We have had it. We have shown in the past with certain very select cases where an insurance company or an employer, it's usually more the employer than the insurance company has done something that's been fraudulent. And it does happen. It's very, very rare, unfortunately. Insurance companies, you know, they do have a lot of money, and a lot of that money goes to their legal counsel. They have in-house lawyers. They have outside lawyers that they hire on particular cases. They have more lawyers than you could imagine. So, they make sure every step that they take for the most part is legal. So, it's very rare that you run into a carrier committing fraud, but it does happen. It does happen with more likely. It's the employer committing fraud because they're not as legally savvy as the insurance companies, and they'll do stupid things, and we'll catch them in fraud. You should put reporting certain information. But it does happen. So, good question. Jose, thank you, thank you. Thank you. Again, if anybody has any questions, please feel free to chime in at any point in time.
So, like I said before, generally instances of surveillance and the fraud allegations that come with it are happening more and more. And certain insurance companies use it more than others in certain circumstances, certain employers. I don't want to say it happens in certain circumstances more than others. There's trends. But that being said, on the whole, I see that it's a growing practice because to be completely honest, it's been useful for insurance companies. They're using it to their advantage to harm people. They're catching people. And what might be a relatively innocent white lie could result in you losing all your benefits. So, that's why we're seeing more and more of it. And you want to know what type of cases tend to have it at the side. Generally and traditionally, it was cases with higher exposure, more risk, more downside for the insurance company, more money at stake. It was the big money cases where you saw it traditionally and still generally true. But it really can be any case.
Anybody's subject to it. It could happen at any point in time. And I've seen it on relatively medium, small cases because the insurance company, really, they're just trying to, not only are they trying to save the money on that particular case, but oftentimes they're trying to make an example. So, what they'll do is they'll try to hit somebody and catch them on surveillance and know that that will send some shockwaves through their community, through their work community, their home community. And it sets the fear of God into people so they know not to mess around with the insurance company. So, honestly, it's popping up more and more. And people need to be aware of it.
We know the everyday common methods, tailing, you know, they'll follow you in your car. When you get in your car to go someplace, they'll follow you. And we generally and traditionally we see them, they'll sit outside your house and they'll show on their video recording, your house and the house number in the street, when they're coming up the block, so they could prove to everybody that they're at your house.
And sometimes they'll show a picture of the ID that they got somehow, usually through the doctor's office. And then they'll wait there. Sometimes they'll wait there for hours and even days and even weeks for you to make an appearance. So, when you come out of your house, boom, they put the camera on you and they zoom all the way in and they show that it's you. And then they follow you. And a lot of times these surveillance videos will show you doing a whole lot of nothing, but then they might catch you dumping the garbage. Then they might catch you shoveling the snow.
They might catch you unloading groceries in and out of the trunk of your car, carrying groceries, sitting in your car for a period of time, carrying your children, picking up toys, doing yard worker housework. We've seen all of these things happen. So, and the tailing aspect of it, a lot of times they'll, if they can't get you at home, they'll catch you someplace where they know you're going to be and where they're going to be. And where they know you're going to be, your doctor's office or the insurance company's doctor. They might know your exact schedule for when you see your doctor or your therapist, but they do know from the insurance company when you are scheduled to see the insurance company doctor. And that is a very ripe time for them to surveil you for a lot of reasons. They know you're going to be there. They know you're going to be taking transportation there. And the method of transportation is usually a very big factor in determining a person's disability and truthfulness.
They'll ask your doctor, "How long can so-and-so sit?" And they'll say, "Oh, he can't sit for more than five minutes." And then they'll have you on video driving 20 minutes to your IME appointment. And that shows that there's some issue there with truthfulness. Or they'll say, "My patient can't take the bus or the subway. He can't manage the stairs." And they'll have a video you coming off the subway. So that is one circumstance where they will tell you. Also, a lot of times they will have, once they tell you to the IME appointment, where you now go in and you talk to the insurance company doctor, and you say, "I use this cane every day and I can't walk around without it. And I use my neck collar and I use my elbow brace and I use my back brace. And I use all this equipment and I walk with a heavy limp and I can't lift anything. And they'll catch you, they'll record you, they'll report what you're doing at the time of the IME, the exam with the insurance company doctor. And the doctor will write all that down. And once you leave that doctor's office, they're going to continue to follow you.
And we've had people go to their car and drive up the street and take their back brace off and do a hop and a skip and a jump and walk into the supermarket and walk out with arms full of growth. And clearly at that point, I'm sorry, sir, but it doesn't look good that five minutes ago you couldn't walk without a limp or a cane and now you're skipping down the street. So insurance companies will send investigators and a lot of times they'll tell you to and from the doctor's office. That's a big one. Other things they do is they'll track your social media.
They'll go on your Facebook and your Instagram and whatever and they'll see if you're doing any activities, weekend fun. Doing things that you shouldn't be doing. So if you're claiming to be 100% disabled, skydiving might not be the best thing for you to do. You know, riding your dune bug, you might not be so smart. Running your dirt bike. So please be mindful and don't do things that you shouldn't be doing. So social media is a big one. They'll track your social media.
Another thing they do is they speak with your family, friends and neighbors. They will knock on your neighbor's door and they'll say, "Hey, what's up with so-and-so? Have you seen them?" You know, they'll ask simple questions and even the smallest bit of information can be harmful. So they will do things like that. They can also do very creative things. I'm seeing some questions chiming in here and we'll get to them in one moment. We had a gentleman one day who was living in an apartment building that was owned by his wife. And this is a true story.
It happened when one of my clients lived in a multifamily apartment building that his wife's family owned. She was at work. He was home with a back injury and there was a four rent sign in the window. One of the apartments was vacant and it was for rent. And the investigator knocked on the door and my client answered the door and said, "Can I help you?" He says, "I want to go see the apartment. It's for rent." He said, "I can't. It's my wife's building. When she gets home, she'll show you." He said, "No, no, no. I want to see it now." And my client climbed the flight of stairs with him and opened the door and let him in. He said, "When you're done, please lock up. And what do you know?" They raised fraud. They said, "Oh, he says he's 100% disabled and he can't work and his doctor said he can't work and he's not doing any work." But here he is showing apartments and that was an argument that we needed to deal with. And unfortunately it was a big problem. So, you know, they get creative and they do things that are tricky and they try to trap you and they don't always play fair. And that was a very dirty trick they played and it created a lot of headache for me and my client.
Jose is asking if they deny your claim in general, could they still have people investigating you?
If your case is still pending, okay, it's a very good question. Jose is on the ball today. Jose is getting a gold star so far. If your case is pending, if they're litigating your case, if you're actively involved in trying to prove your case and they're trying to disprove and you're going to court and you're in the middle of that litigation process, yes. They could still have people investigating you. They could still have people following you. Technically, if an investigator follows the rules and the law, they can investigate you any time they want because the information they're getting is information that would otherwise be accessible to the general public. So they're not looking in your window, they're not breaking into your house, they're just following you in public for the most part.
So technically, they could investigate you any time they want. I mean, theoretically, an insurance company wouldn't, I can't imagine that they would do this, but there's nothing to prevent them from investigating you after your case is completely settled. And going back and proving that this guy was a big fraud and a liar, we want our money back, they know that they don't have a tough time doing that. So they're very difficult case, the settled cases for reason to cut their losses so they probably would not happen, but could it happen? Absolutely. So very good question. You're always at risk for surveillance, Jose, to answer your question briefly.
So legal nurse Diego is chiming in on Instagram. She's familiar with this process and she says, "The surveillance are aware of the day of the IME appointment and may follow the client to know if they are not honest." That's exactly my point. They know the day and the time of the IME. They know the address of the IME. The insurance company gives them all that information and they will either sit outside your house and follow you there. They'll sit outside the IME doctor's office and watch you walk in and out. They will then follow you after you leave and see how you get out and then they'll follow you for the rest of the day to see what you're doing afterwards. And they will try to use that information to show that you were not being honest at the IME. That you needed a cane to walk in and out of the IME doctor's office, but you didn't need a cane the whole rest of the day. That's a very big one. Legal nurse Diego is very nice. Thank you. Okay. So, yes, the room for entering up the IME. So that's how they investigate.
So they have to follow along. They can't trespass. They can't do things illegally. But generally, if it's within the bounds of the law, if they're out in public, if it's something that somebody, if it's information or observation that somebody could get while being in public, that's generally what they're doing. They're exercising at the limits of the law, but they're not doing anything that a random person who decided to follow you around couldn't otherwise get. So if you feel like you're being followed, if you feel like something, if you're uncomfortable, if I've had clients say that there's a creepy guy following the run, I don't know that it's a surveillance or an investigator. If you feel uncomfortable, call the police. If there's a problem going on, if somebody's tailing you and you don't know if it's surveillance, call the police. If somebody's knocking on your door and you don't know who they are and you don't want to answer and you're scared, call the police. They cannot trespass. They can come knock on your door, like any other citizen or anybody out in public, they can come knock on your door. But they cannot trespass.
What are private investigators looking for when spying on injured workers? They're looking for big things like fraud or little things too. They're looking for both big things and little things. Listen, if they can get the smoking gun and nail you in the act of, you know, working when you're saying you're not working or lifting bags of concrete to, you know, to build a pool in your own back yard. You know, those big things are, they are looking for that, but they're also looking for the little things. If you tell your doctor or the insurance company doctor that you can't sit for more than five minutes and you're driving for ten minutes, they're going to use that against you. Something is minor and as stupid as that. If you say that you can't lift more than five pounds and you're lifting up your 30 pound child, they're going to use that against you as horrible as that is. You know, they don't know how much pain you're in, but the things like, even the little things like that, they're going to use against you. I've said in other videos, if you're helping your elderly neighbor by shoveling snow, they're going to use that against you. If you say you can't do that. So you need to be careful, you need to be smart.
They are looking for anything to show that you're misrepresenting your condition to whether it's your doctor, the insurance company doctor or the judge. So when you're in court and the judge is asking you questions or the insurance company is asking you questions, they're looking to catch you in a lie as small as that lie might be. They want to call your credibility into question and try to hammer you with that. And it's horrible, but it's something that's very real and we need to be aware of it and we need to deal with it.
Surveillance could last days, weeks, months, could last years, presumably. If the case is going to go that long. Usually if they're going to surveil you, they're going to tell you, they're going to follow you, it's usually a couple days at least. And I've seen it go, you know, they'll do a few days over a few weeks. Sometimes they'll go months because they're trying to pattern you. You know, they know that on Monday, Wednesday and Friday you go to physical therapy at 10 o'clock in the morning and sometimes it takes them a few weeks to learn that pattern. They know that you see your orthopedist at the third Thursday of every month, the two o'clock, they want to learn that pattern and they want to track you. They also want to pattern your, I guess, normal everyday behavior. You go to breakfast with your friends. You know, we had an older guy who used to meet all his friends at the coffee shop every Tuesday and Thursday morning. They want to learn those patterns and track those patterns. Again, the investigators that do this stuff are not idiots.
They are usually retired law enforcement or some level of law enforcement. And even when they're not, they're not idiots. They're trained. They know what they're doing. And, um, patterning you is something that they do. This way they can follow you on a regular basis, get you on a video on a regular basis and do their best to show that you are misrepresenting your condition, your work-related injuries. So be mindful, all that. When can injured workers rest assured that they're not being watched? Usually it's at the end of the case. When the case settles, when the case is otherwise completely finalized, if you go back to work at full duty and not much else has happened, generally at that point you're relatively safe. But like I said earlier, it could come up at any point in time. And a lot of times they're using it to make an example of that person for a lot of other people. It's just as important to them to save that money in that case.
Probably more important to make an example of that person for all the other people out there so they know that they should not be falsifying or misrepresenting themselves. At least this is the point they're trying to make because it's going to save them money in the long term. So that's their big purpose here.
So the biggest thing, and this has been the theme in many of my videos and live streams, you don't want to misrepresent yourself. You want to be upfront, you want to be honest. We've gone over all this before. If you have nothing to hide, you have nothing to hide. So if you tell your doctors and you tell the insurance companies doctors and you don't misrepresent yourself, you don't have anything to worry about.
So, "hey Doc, I have trouble lifting heavy things, but I still dump the garbage from time to time. I do the best I can. If I have to shovel the snow, I shovel the snow." If you're honest with them, you have nothing to worry about. If you go and you tell them, "Oh, I'm in the worst pain ever and I can't do anything," well then they're going to be looking to nail you. So just be honest.
Don't over embellish your pain, your disability, your injuries. Just be honest. It's so much easier that way. And if you're upfront and you're honest and they have nothing to look for, they're not going to send surveillance after you because what are they going to catch you doing? Exactly what you told them that you do anyway? It's pointless. Make sure you tell not only your doctor, but the insurance company doctor. Many people kind of feel like, "Well, my doctor knows me well enough to know what I'm capable of, so I don't have to mention it to him." And other people think also, "I don't have to tell the insurance company to look and figure it out on their own, so I'm not going to give them all the information." It's going to get used against you. And the same holds true when you're in court and the judge asks you, "Have you been working? Have you done anything?"
Always be upfront. I always tell people, "If you're serving soup in a soup kitchen for free and you're volunteering, somebody's going to accuse you of what you're doing." Somebody's going to accuse you of working. So just tell them, tell the judge, "Hey, I haven't done any work. I haven't made any money." Every Sunday I go down to my church and I help serve homeless people food. It makes me feel better and gets my mind off my injuries. At least you're upfront and honest about it. You're going to stay out of trouble. If you feel like you're under surveillance, if you feel like somebody's following you, if you feel like somebody's recording you, if you keep seeing a weird car up the block from your house, and you're suspicious, call your lawyer.
Talk to your lawyer and you really need to lay your cards on the table at that point and talk about what you're experiencing, your injuries, your disabilities. You should go through your IME reports with your lawyer. That's a big one. Talk to them about your concerns. You want to get out in front of a fraud and surveillance issue. You don't want it to blindside you and hit you. That's what they aim to do. They walk in the court. They disclose that the judge, we have surveillance. We want to ask the claimant some questions. The judge says, "Okay." They say, "Sir." They ask you a whole bunch of questions that are specifically pointed at what they're looking to get. "Sir, you told the insurance company, Doctor, that you're only capable of walking one city block. Is that true?" "Oh, yeah, I think I told them that." "Is that how much can you walk?" "Oh, maybe a block, maybe two blocks." "Okay, Judge, we have a video showing something different." "Then they show a video of you walking a half a mile." So if you feel like that surveillance is there, if you feel like somebody is on you, you want to talk to your lawyer about that. Seeing some questions pop up here.
"Can they send you to take a drug test and alcohol test after three months of the accident happened?" I don't know about the timeframe. I know there's a lot of union requirements there. If a person has an accident, certain unions have in their collective bargaining agreements where you have to go and take a -- Sorry, my news feed just popped up and blocked me. Where you have to go take a drug or an alcohol test. There are circumstances where drug and alcohol tests are required. Following an accident is also circumstances where drug testing is required. If you're being prescribed in our chronic pain medications, a lot of doctors want to make sure that you're taking your medication. So drug testing is a small component here. I don't know the specific timeframe there.
Sequoia, "can I make a restriction order of the investigator?" You were asking to an order of protection. I don't know the answer to that question. I don't think so because you're probably not an imminent hard, so you probably cannot get a restraining order against the private investigators. Just be smart, be mindful of their presence. If you have a significant team, smoke shack outdoors, it sounds like barbecue. I'm hungry now.
"If you have a significant injuries and diagnose PTSD, will they do surveillance?" That's a good question. They will do surveillance on people with psychological injuries as well as physical injuries. So it could come up either way. It's a little harder to show you acting or misrepresenting yourself with a psychological injury, so it's less frequent, significantly less frequent, but it still does happen. So you can be subject to surveillance and a fraud allegation even if it's a psychological injury like PTSD or psychiatric conditions. So a very good question, very good.
Anything that anybody should know? It's like I said before. Be upfront. Be honest. Do not embellish. Do not overdo it when you're talking to the doctors or the judge about your condition. It's not going to help you. Any convincing that your embellishment does is going to be far negated by fraud allegations. So it's just not worth it. Plus, the medical says what your condition is. Your medical records and your doctor's records show exactly what you're capable of. So by you over embellishing there, it doesn't help you at all. It makes you look worse. So you need to be very, very careful. Just be smart.
Know that somebody is looking over your shoulder, somebody's breathing down your neck, somebody's watching you. Operate into the assumption that somebody's always surveilling you, that somebody's always watching you and be smart about it. Be honest with your doctor, be honest with the insurance company's doctor, and you'll be okay. If you're not honest, you're going to have a problem.
The D-Man, "Is it usual once you reach MMI, the insurance company will send you for an IEMI a few months after reaching MMI?"
Although you are in the settlement stage. Is it usual if you're in the midst of settling and you're relatively close, usually insurance companies will not send you out for an IEMI. Sometimes it happens, I don't know if it's computer generated or if it's a person in a different department sees that it's been a while since an IEMI's been scheduled. We do see it sometimes. We've had cases where we work out a settlement and the next morning the client calls us up and say they just got a letter for an IEMI or a week later. We call them up and usually we can get a cancel because it's unnecessary. If the parties are not very close in terms of their settlements, if it doesn't look like an agreement is imminent, if there's an issue, if maybe there's still a medical issue, they might send you for an IEMI. So it does happen. I'm not going to say it never happens. And again, sometimes they're doing it because they are suspicious of you and they think if they set up an IEMI, they could send the investigator there to keep an IEMI and catch you in the act. So sometimes that's the reason why they set up IEMIs. It's like I said before. Surveillance somebody going into and out of an IEMI and what they do before and after that appointment are huge because they're very proximal in time to the IEMI. It's right before and right after. And what you report at that IEMI could be contrasted with what you've done right before and right after. So surveillance surrounding IEMI appointments like our nurse friend, I want to give you the proper legal nurse. Diego has said earlier, yes. Surveillance in and around IEMI time is a big one. Good question.
Another question here, "Hey, can my attorney request to keep my benefits coming after the doctor send me back to work?"
Well, which doctor is sending you back to work? Is it your doctor sending you back to work? Is it the insurance company doctor sending you back to work? It really depends who is recommending that you return to work. Are they recommending you return to work at full duty or at light duty? Again, an important distinction that we need to know about. If your doctor says that you're capable of returning to work at full duty and you choose not to for whatever reason, the insurance company has a very good argument to make to suspend your awards here in New York state. I don't know about other states. If the insurance company doctor recommends that you return to work, that based upon his examination you can go back to work, whether it's full duty or light duty, the insurance company has an argument, but they cannot generally suspend until you have a hearing. If the awards that are being paid have been awarded by a judge. They cannot generally suspend you until a judge suspends those awards. They can't do it unilaterally. They can't do it on their own. So, good question.
Maurice, "My last two visits with the insurance company doctor has not been pleasant." Well, welcome to my world. "I feel as though that their best interest is with the employer and not with me." You nailed it, Maurice. The insurance company is not there. You're used to a doctor who is there to help you and a doctor is there to be on your side. This is the one doctor that's not there to help you. He doesn't care. He is being paid by the insurance company to give his objective opinion about your condition. These are doctors that are hired by the insurance company to check up on you and your condition. They're not there to make sure that your best interests are in order. They're there for the insurance company. The pleasantries of those visits are fewer and far between.
Emmy, M.E.B. "I'm a nurse with a traumatic foot injury. It's been almost a year and a half. Still recouping. They denied my light duty until I'm 100%. Lori suggested trying to negotiate a settlement with the insurance company."
Well, that's a pretty standard set of facts right there. There are a lot of employers out there that have a lot of employment types that won't take you back unless you're 100%. Nursing is something I can understand why. They don't want you being less than 100% if you're taking care of other people who are hurt and you would be a liability to them. So they don't want you hopping around on one bad foot because you might cause more damage than good. And they don't offer light duty because if they did, everyone who had any sort of an injury would be asking for light duty. And it does issues like that sometimes run into ADA accommodation concerns where they have to sometimes give you an accommodation if you request it. And there are concerns there. And again, that's a labor and employment issue and I could certainly refer everybody to an attorney who handles that stuff.
He's a super guy, very smart, knows the stuff. We deal with a couple of different people who were able to help you with that. So any questions about ADA and accommodations. But generally speaking from a workers' compensation perspective, they don't have to take you back unless you're 100% because they need you at 100%. That's the job that you were hired for. That's the job that you do. Your lawyer suggested you try to negotiate a settlement with the insurance company. I mean, if your injury is stable, if you're at maximum medical improvement, it might be time to do that. And then you question whether or not you're able to do that job anymore. You need to have a sit down with your lawyer, have a real heart to heart with him and go over the facts of your case and what your expectations are moving forward because that's very important. And come to a conclusion as to what the next steps, no pun intended, in your case would be. Very good question. Sorry about your traumatic foot injury.
Team Smoke Shack Outdoors is back with a good one, "Do you recommend filming your IMA?"
In New York State, you have to let them know if you're going to film the IMA. When you get your IMA, I don't have one here, when you get your IMA appointment sheet, it's called an IMA 5, it would say in the bottom left hand corner, IMA-5. That's the appointment letter that shows that you're set to see the insurance company doctor. They'll say on there whether or not the doctor intends on filming the IMA. If you intend on filming the IMA or recording it in any way, you need to let them know in advance. Do I recommend it? It's not a bad idea. I mean, it is a protection. We have seen some fishy things pop up on video and audio recording from an IMA. So if that's something that you choose to do, certainly it can't hurt you. So very good question. Mr. Team Smoke Shack.
Sequoia is back with another question, "If they gave me restrictions, like don't pull five pounds, there's three months now. I didn't receive medical assistance now. If they send me to the doctor, can they change my restrictions? I don't feel better."
I'm not too, I don't understand really what you're asking here. It's been three months since you were given restrictions and you're not feeling better. You should certainly speak to your doctor about your restrictions, about your condition. Why aren't you feeling better after three months? You should, you know, we're human beings. As time goes on, we heal. Medical treatment is there to help us heal. We're supposed to get better over time. So if a few months have gone by and your restrictions haven't changed and you're still feeling bad, you're not feeling any improvement, I would absolutely speak to your doctor and make sure they know what your condition is and why maybe you're not getting the relief that you should otherwise be feeling. Again, I'm not a doctor, so I don't know, I don't know your injury, but I would certainly have a discussion with the doctor there. We all live the same life. Workers comp won't give me a lump sum and they froze my private lawsuit. The private suit is telling me they're waiting for the workers comp suit, but they're not answering my lawyer's emails. And then he wants to know what happens next. I need a lot more information to answer that question.
When you have an accident and a workers compensation, Kate, when you get hurt on the job, you have workers compensation. When somebody else, other than your employer or coworker or yourself, is responsible for your accident and your injury, oftentimes you could sue them. That's a third party lawsuit. This question is referring to the interplay between the workers compensation claim and your third party lawsuit. They both come from the same accident.
You have now two legal matters that come out of the same accident. And the two of them do have the interact. There is some back and forth between the two. And it sounds like we all live the same life as having some issues with the insurance company and the attorneys. You need to find out from your lawyer where the roadblock is, who is not answering who and what the next steps could be. Sometimes it's going back in front of the judge. Sometimes it might just be if the adjuster is not answering your emails, ask to speak to their supervisor. You can carry them and ask for the supervisor. There's a lot of different ways of going about it, but you need to kind of figure out where that roadblock is so you can come up with an idea of how to get around it. I'm sorry you're having those problems.
Another question, "Could you please give some advice on not accepting a Section 32 agreement after you've reached back to medical improvement, and you've been medically terminated?"
Medical determinant will have to pay you. I'm a little unclear on your question. Not accepting a Section 32 agreement. After you've reached medical improvement. So your employer is not taking you back because your injuries are so severe that you can't do your old job, and they want you back at light total. 100% clearance are pretty close to it, and they let you go from your job, and you want to know about settling your case with a worker's Section 32 settlement. There are a lot more facts that we need to know about your particular case to give you an answer to that question. But generally speaking, if you can't return to your job because of your injury, you can't return to your job. It doesn't necessarily mean that you are totally disabled. The example I always give, if you're a big strong construction worker, you might have a relatively minor injury. You might have a herniated disc in your back, which is something that a guy who just sits at a desk, a nerd, like me, the types all day, a herniated disc might not affect them as much as a big strong construction worker. So a herniated disc that gives them a little bit of pain might keep that construction worker from ever going back to their job. They might be medically terminated like you're saying, but they might only have a 25 or 30 or 35% permanent disability because of that injury. But it doesn't take much to make a construction worker or those types of strenuous jobs totally disabled. So it's hard to answer those questions.
Certainly have a discussion with your attorney though. Moving on here, let's see if there's some other questions here. The industrial clinic doctors have requested epidurals and surgery with the insurance. The doctor released me to modify duty because he can't do anything else and declared me, "MMI, now what?" Again, I can only speak to how this works in New York State, epidural surgery, things like that. Under New York State law, we have a set of medical treatment guidelines. And there are guidelines that essentially tell the doctor how to treat any particular type of injury. And there are certain treatments and surgeries that fall within the guidelines. And if the doctor follows the progression of medical treatment that's set forth in the guidelines, if it's surgery time and they've done everything else, they can go ahead and do surgery. But outside the guidelines, or if it's something that's not otherwise addressed in the guidelines, the doctor has to get permission, has to get authorization for treatment. And in New York State, we have a very specific and strict authorization process. And unfortunately for me, as much as I like to help my clients, the board, workers' compensation board has taken us out of that equation. They don't let us get involved like we used to. The doctors have to put requests in through a medical portal, which is provided by the board. It's on the workers' compensation board website, and they have to follow the instructions, and they have to run through this procedure. And there's three different levels of review, and it's a very convoluted process. But here in New York State, the doctors must follow that process to the end in their attempts to get treatment or surgery authorized.
Again, my number is 212-406-8989. Happy to help. You guys are on it with the questions today. I love it.
Marlon has a question, "I had a hearing and was awarded retroactive pay. Ten days passed and I haven't received all of them. Do my lawyers have to request a hearing for the awards that weren't paid?"
Great question. Late pain penalties. Yes. Wait a little longer. Make sure they really are late so you can really use it against them. But yes, if you are owed an award of compensation, they have a set time to pay. I believe it's ten days from the date of the notice of decision, an installment of compensation. So if you are getting weekly installments, they have 20 days before it's deemed late. So yes, if your payments are late, talk to your lawyer. Tell your lawyer to request a hearing. Go after a late pain penalty. If they owe you retroactive awards like you are saying here and they haven't paid you in time, we have a case like this is brewing right now. Twenty percent of the unpaid amount is the penalty. So if they owe you $1,000 and it's late, you are going to get a check for $200. Twenty percent. Very nice. B.J. Go crazy. He fell from a railroad car at my job, told the supervisor that I fell, the supervisor never told the manager about my injury job terminated. Can I file for wrongful termination? That's a labor and employment question and it might be a federal question. A lot of railroad employee cases, injuries, things like that are federal, not state. You might want to speak to a federal attorney. If you haven't retained anybody, you have any questions, give me a call. I might be able to get you set up.
Thank you everyone, have a wonderful day and I'll see you all in the next one.
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