Returning To Work After a Workers Comp Claim!

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Returning To Work After a Workers Comp Claim!

I wanted to touch base on an issue today and discuss returning to work. As always, folks, if you have any questions at all, whether it's about this topic, about something completely separate, feel free to chime in. Ask your questions, I will do all I can to answer everybody's questions. You guys always, always, always have such fantastic questions.

When should people with workers' compensation claims return to work? And what should injured workers think about when deciding whether or not to go back to work?

So, you know, and maybe the reason why I got so many questions last week is because I tell people it's best to go back to work as soon as possible. If you're able to go back to work, you go back to work. And I think people took that a little too literally, not that they took it too literally, but that's advice number two.

Advice number one, before you do anything that I tell you to do, go talk to your doctor. Make sure you have medical clearance. Make sure you have the input and the advice of your doctor after you have a discussion with them about your job, about how you're feeling, about your condition, about what the pros and cons are about going back to work. Can you re-injure the same body part? Can you make it worse? Do you have nothing really to worry about? Those are discussions you want to have and should have with your doctors before considering going back to work. So, before you listen to me, go talk to your doctor.

When the issue is returned to work, talk to your doctor. You know your job better than your doctor. You know your job better than me. And you're going to be able to explain to your doctor what it is you do. You're going to explain to your doctor how you're feeling, how your injury has been progressing, and what you feel you can and can't do. And the first thing you need to do is talk to your doctor. Okay? Talk to your doctor with that in mind. Assuming your doctor has cleared you to return to work, whether it's full duty or light duty, and you feel comfortable with what your doctor advised you, then you listen to me. Go back to work as soon as possible. Under most circumstances, it's the smart thing to do. It's the best thing to do. It's going to put you on the road to putting a bad part of your life behind you, moving on, getting the medical treatment you need, maximizing the dollar value that your case is worth, and riding off into the sunset. Going back to work puts you on that path. So, please always try to go back to work as soon as you can.

How will going back to work affect your workers' compensation claim? Can doing so cut your benefits short and can it impact your settlement?

The quick answer there, yes and yes. Going back to work can cut your benefits short, it can impact your settlement, but it's not always a bad thing because cutting your benefits short and impacting your settlement doesn't always, it's not always a negative thing. It's not always a negative in the long term.

First of all, holding out, staying out of work longer than you and your doctor know that you should be staying out or staying out longer than your doctor recommends or trying to prolong by staying out. Doesn't always help you. It rarely helps you because your medical records are going to show what your abilities and disabilities are. Your condition is reflected in your medical records. Your doctor has been following you, your physical therapist has been following you, they're charting all of the improvements that you've been making over time. The insurance company sends you to see their doctor periodically, their keeping track of the improvements that you're making over time and trying to hold out and staying out of work longer than you really should be.

It's going to be apparent by looking at the medical reports. It's going to be clear by comparing all those medical reports and that lineage of treatment records that, hey, you're at the point of time where you probably should be on your way back to work. If you're dragging your feet and staying out, it's not going to look good for you. It's not going to look good for your case. It's going to hurt the overall settlement value and it's not something that you want to do. You want to, excuse me, you want to put your best foot forward, look as positive as you can to the judge and going back to work does that for you and it shows that you're serious about you and your case and getting back to work and doing the right thing. It's very helpful across the board. So staying out of work is not always the best thing. It doesn't make you look good.

It does cut your benefits short, going back to work. If you go back to work at full duty or some people go back and actually earn more, yes, your benefits will stop. Your weekly benefits will stop most likely under that set of circumstances. Again, I'm speaking from a New York state perspective. First and foremost, that's my area of expertise. That's where I'm licensed. So I can speak to you about New York state law.

I know other workers' compensation systems throughout the country are similar, but every law is different. Every jurisdiction is different. So for specific questions about your local state laws, you should consult with a local attorney. If you need help finding one, you can always give us a call. We do have a very excellent network of attorneys that we work with. But yes, I'm speaking about New York primarily and predominantly and strictly. So yes, your benefits will cut short, but it also could help you in the long run. I'm going to explain it in a moment. And I've explained it in the past. With schedule loss of use cases, extremities, arms, legs, hands and feet, you can actually get more money by going back to work sooner in certain circumstances. So it's actually helpful. Well, hold on. I'm getting, hold on one second, folks.

Staying out of work doesn't always show that you have a more significant or more severe or a more valuable injury. It sometimes does, but generally your medical records are going to show the severity of your injury. Staying out of work doesn't always do that. Maybe it's different in other areas of law. Maybe personal injury might be a little different. But from our perspective, your records are going to reflect your overall level of disability. And going back to work sooner rather than later generally is the right thing to do.

So a question from Mr. Thomas, "I have an extended case that they make me trying to go back to work. I have a pinched nerve from work from the injury." Okay. A pinched nerve probably a neck or a back injury. You didn't get benefits in your case and it's still going on and you're still having pain from the pinched nerve and they're trying to force you to go back to work in your case. So I'm not fully understanding your question, but if you're discussing pinched nerves, Mr. Thomas, most likely we're talking about a neck or a back injury. That's generally what pinched nerves come from.

A neck and a back injury here in New York state are non-scheduled law cases. So I was just talking about the schedule of use cases, arms and legs and hands and feet, head neck and back are non-scheduled cases. And those cases are only compensable, generally speaking, based upon your lost time and your level of disability. So there you do need to be out of work in order to get monetary awards. If you have a bed, neck or a bed back, you do need to be out of work.

So I know that kind of goes, it's contrary to me saying go back to work as soon as possible. But if you think about it, your medical records are going to show when you're able to go back. Sitting out and not going back, your money is going to keep dwindling down as your level of disability falls and you get better and better. Your disability goes down because your ability goes up and your compensation rates kind of fall and you're doing yourself a disservice because then you're going to be, you know, you might have been making $1000 a week when you got hurt. Now you're making $150 a week when workers' compensation benefits, you can barely pay the bills, you can barely put a foot on the table and the records are showing that your injuries are not so bad anymore. Maybe it's time to kind of grab yourself by the bootstraps and get back to work and try to do the best you can. And look, if you can't, if the injuries, turns out you can't do your job and your injuries keep you from working to your potential. Look, at least you tried and that looks great to a judge.

"Hey, judge, I tried to go back. I worked for three weeks and I came home every night in agonizing pain. I had to go to the ER twice..." You know, at least you tried and it shows that you're doing the right thing. So, you know, it's certainly, it's not an easy answer to give. Yes, go back or no, go back. You really need to look at the big picture and that's proof that in the grand scheme of things, going back to work sooner rather than later is a smart thing to do.

Alex L. Rex question here, "I am an officer. And last year on March doing exercise, I tore my ACL in meniscus. It took three months to get my surgery going. Another three months to start therapy and a doctor's evaluation. A couple of days ago, when it sounds like I'm approaching the deadline to be released to full duty, even though I can't squat or run, jog, my case manager told me I was going to receive some money once the doctor clears me out on my next evaluation on May 20th. My question is, should I contact an attorney and see if I can get a settlement or am I too late? I am from Arizona."

What a beautiful place to be, Arizona. Compensation, not a beautiful place to be. Obviously, I'm not familiar with Arizona state law. And if you're a police officer, sometimes here in New York, NYPD officers have their own separate workers' compensation system. They don't fall under general New York state workers' compensation. So I can't even give advice to an NYPD officer because I do not represent them and I don't practice in that area. So you need to make sure that you are covered by the state law or who you are covered by. If it's not general state workers' compensation, if there's a separate system for police officers, check with the union. I'm sure there's a PBA or some union that you belong to. But you should certainly get the consultation of an attorney. Some unions will send you to an attorney.

I know here in New York you're free to go and speak with any attorney who is practicing within that system that can help you out. So I would absolutely ask the question to a lawyer. It can't hurt to ask. Ask the question, see what you might be entitled to. There might be a whole boatload of money waiting for you somewhere that you're just missing out on. Here in New York it happens all the time. I can't even begin to tell you how many clients people will come to me with a similar recommendation. You know what my friend told me, I should just speak to a lawyer. My father told me I should speak to a lawyer. My cousin had a case 20 years ago. He told me you might as well speak to a lawyer. And when I sit down with people and I explain to them how their case works, how a schedule loss abuse case works, and they haven't missed time from work. And I say, hey, I can get you money at the end of the case here. Some people are thrilled by it.

And in certain cases when they see exactly how much money we're talking about, you know, it's a great phone call to have with somebody when you say, hey, I just got the phone and I worked at your case. And you're getting 70,000, you know, it's a lot of money. Not every case is 70,000. There's cases that settle for 10 or 5, but, you know, there's also cases that settle for 200. So it's always worth talking to a lawyer.

Find somebody who knows what they're talking about. Find somebody that a friend or a colleague or a family member has used before or that your doctor recommends. Find somebody that's trusted and ask them these questions because it's certainly, it never hurts to ask. That's what we're here for. We're here to answer your questions about something that you don't otherwise know about. We are trained in interpreting the law and applying your set of facts to the relevant law and helping you find the answers because no one can expect an everyday lay person to be able to do it on their own. The same way no one expects you to be able to fix your own cavity. If your tooth hurts, you go to the dentist. If you have a question about what benefits you're entitled to while you're disabled, do a work related injury, talk to a workers compensation lawyer.

So Alex L. Rex, absolutely based upon what you're telling me here, you have a significant injury and I would 150% recommend that you contact a local attorney that you trust and try to get some guidance here helping you down the road. I hope you feel better. Horrible meniscus tear. I have not had it. I've had a lot of clients had it. I've virtually one of my family, my father had one, but me, my knees are just creaky. Moving on.

Why is returning to work after a workers' compensation claim a good idea and isn't it better to just try to stay on comp?

So sticking with the theme here, no. Try to go back to work. Going back to work, more often than not will result in you getting more out of your case, especially when we're talking about schedule loss of use cases. So what's a schedule loss case? I know we've talked about this before. I've showed you my little schedule that I made 100 years ago. This is the schedule. And if you look at the injuries on the schedule, hand arm foot, leg, fingers, toes. There's also eyes and vision is on here, but it's extremities. It's arms, legs, hands, feet, fingers and toes. Those are what we're talking about. The value of a schedule loss of use claim.

The amount of money that you will get for a broken hand, fractured wrist, carpal tunnel syndrome, cubital tunnel syndrome, torn labrum, torn meniscus, Achilles rupture, any extremity injury. The amount of money that that case is worth is based upon how much permanent residual disability you're left with. How much leftover disability do you have after you're all better? After you're done treating with your doctors, after everyone says there's nothing else they can do for you, how much leftover permanent impairment do you have? And whatever that amount of impairment is, and your doctor's going to tell us his opinion, the insurance company doctor's going to tell us their opinion, and usually they're more like this than like this. They're usually one high, one low, but they're going to tell us what they think your level of permanent disability is to that arm or that wrist or that foot, that ankle, that knee.

And whatever that percentage of impairment is based upon the good old chart here, car spots to a number of weeks of benefits, which are payable to you at the total rate of workers' compensation, which is two thirds of your salary, subject to a statutory maximum. The law has a max weekly rate that you can get, and it changes every year. But, for instance, if you earn $600 per week, you get two thirds of that per week, you get $400 a week. So an arm is worth a total loss of use of an arm, get to 312 weeks of compensation. If you have a 10% loss of use of the arm, you get 31.2 weeks payable at $400 a week. That's the value of your arm injury. Okay? Now, from that award, from that total number, whatever that number comes out to be, I mean, I can do the math here that 31.2 times $400 a week is a $12,480 injury. So if you have a $12,000 injury, and you've been out on workers' compensation for five weeks, and they've paid you $500 a week, well, that $2,500 that they've already paid you is going to get deducted out. They're going to take credit for that. So your $12,500 injury not just became a $10,000 injury. If you didn't lose any time from work, that five weeks of workers' comp that you just got from missing five weeks of work, you're earning your full salary. You're getting five weeks at $600 a week. You've made your salary for that five weeks. That's $3,000 of gross income that you've made, and the insurance company gets zero deductions.

So you got the $3,000 that you didn't get before, and you're getting the full value of your permanent injury, $12,500, so you just earned yourself more money by going back to work sooner. So that's why I always recommend going back to work sooner rather than later.

In New York state, a determination of disability is not a determination as to a person's disability from their job. It's a determination as to their disability from all jobs in the New York state labor market. And again, this might change state by state. Every state might have a little different. The same way some states consider which is your dominant hand if you have a hand injury. In New York they don't care which is your dominant hand. Your left hand is worth the same as your right hand. In other states, if you're a righty, your right hand is worth more than your left hand. So New York doesn't consider your occupation in determining permanent injury.

Sticking with slide number three here, "Why Returning to Work is a Good Idea." We talked about why it's a good idea on schedule loss cases, why it's better. You get your salary, plus you get the full value or a higher value of your permanent injury work because there's less credit to the carrier if you go back to work sooner. But on permanent partial disability cases, head, neck, and back cases, like I said before, yes, you are only compensated for your lost time. So you need to be out of work to get compensation.

On permanent partial disability cases, insurance companies set reserves on a lot of cases. They'll say, we've looked at this case, we've seen cases like this before, based upon your disability and your injury and the amount of money you earned and the treatment that you've gotten and the treatment that you might need, we're going to set aside this much money for your case down the road. This case is a $50,000 reserve. Staying out of work with a mild or very low level of disability is going to eat into those reserves.

And God forbid, you have a problem down the road, it takes a lot to get an insurance company to reevaluate what the reserve is on the case. You might be nickel and dimeing them at one point, but God forbid you have a problem down the road, it's going to make it even that much harder to get treatment to get more benefits. You go back to work, like I said before, it's apparent in your medical records as to what your level of disability is, what your capabilities are. So, it's all out there on paper. Nickel and Diving is not going to help you. It just makes you look bad. You're better off going back if you need to continue a treatment, continue a treatment, but it shows that you're doing the right thing. You're doing everything you can to stay ahead of the game, to go back to work and hopefully put all this behind you. Even for your mental stability, going back to work sooner rather than later, is a good idea.

Here's another fantastic question. Ken Pizarro, "how about multiple injuries head back and shoulder?" So, what Ken is giving me here is the old crossover. Schedule loss cases, the shoulder, non-schedule cases, head and back. It really comes down to which of those injuries are more severe. If we're having this discussion in the realm of returning to work, so if you're considering and you're able to return to work, it sounds like what we're going to try to be doing here is getting you the value of a shoulder schedule. Or getting you the value of a shoulder schedule and trying to get the insurance company to throw in some additional money on there to convince them that we're going to be closing at this case, which has treatment obligations for three different reasons.

So, yes, even when there are multiple injuries, it's something that you should do at least consider. Very good question and I was waiting for that one to come up and you nailed it, Ken. Thank you. Vito Gotti, great info. What should I do if I'm waiting for a torn rotator cuff surgery, an ACDF surgery, but my hearing date does not get scheduled. Four months after my work injury. If we're talking New York State, you don't need a hearing to get your surgery authorized. In New York State, we have a -- it's called the portal, the medical treatment workers' compensation medical treatment portal.

If your doctor wants to do surgery, he needs to follow the rules for treatment. The medical treatment guidelines are a set of guidelines that the doctor has to follow when he's administering treatment for any -- excuse me, for any injury covered under the guidelines, and his shoulder is one of them. If your doctor's been following those guidelines and he's at the point where the guidelines recommend surgery, he can go ahead and give you surgery without getting authorization. If he's looking to do things in a little out of order or if it's something that does require authorization, he needs to put a request in through the portal for authorization for that particular surgery. Your hearing doesn't make a difference. Even if you're hearing was tomorrow, the judge is going to -- and you said to the judge, judge, I need rotator cuff surgery right away. The judge is going to say, did your doctor put the request in through the portal? I don't know. Well, you better tell him to do it because I'm not going to do it. The judges don't get involved at that juncture. The request for treatment has got to go through the portal.

Talk to your doctor, make sure your -- and this is a bullet point I have on my notes here that stare me in the face, that I'm going to get to you later. Make sure your doctor understands the workers' compensation system. I understand that people like to go see the doctor who did their uncle's surgery five years ago. I understand that people want to go see the doctor that did Eli Manning's knee 20 years ago. I understand that people have certain doctors they want to say, but not every doctor understands the New York State or any state's workers' compensation system. And it's just as important that they understand the system as they understand your injury. There's a lot of great physicians and surgeons that do workers' compensation and understand the system. And those are the ones that know how to manage the portal. They know how to send the request in. They know how to properly send the request in so that you don't have to wait two and three times for authorization. And they get it done right the first time and your surgeries get authorized. I'm not saying, Vito, that your doctor's a bad doctor or he's done anything wrong. Obviously, I don't know your doctor. Sometimes the system just sucks and it takes time to get authorization. Absolutely. I'll be the first one to say it. You know, people call them. My clients, a lot of times they'll call them, "Oh, I need my treatment. I need my surgery." And they'll be upset and they'll yell on the screen. Listen, I didn't invent the workers' compensation system here in New York. And I'll be the first one to say, "It's an imperfect system."

And it's constantly being altered and changed and tweaked. And we try to make it better and the legislature tries to make it better. And we're working within this framework of rules and laws. It's an imperfect system. And sometimes waiting is a part of the game. But you want to make sure your doctor has done everything correctly, has put the request in properly, has filled out those forms completely. And this way, the weight is hopefully less than it could possibly be. So your hearing, Vito, doesn't matter. Talk to your doctor. Make sure that that request for surgery has been put in properly and timely.

What if my doctor says I can go back to work, but I'm not ready? Can I stay on work as comp and recover?

You better have a good reason. If your doctor is clearing you to return to work and you don't go back, or you don't try to go back, you better have a very good reason why you haven't. And usually that other reason is something generally is an unrelated medical condition, which is going to prevent ongoing compensation benefits anyway. Once your doctor clears you, there's very few reasons out there that would allow you to stay on comp, continue receiving benefits. So, it's like I said before, your medical records are going to be a reflection of your condition, your injuries and your disability.

So once your doctor clears you, you really need to get out there and try to find some work. Mrs. Thomas, I got a transmission drop to my left foot. It's traveling to my body, to my foot, from my foot to my leg, my arm, my wrist, all of my body. Let me see if you posted a follow-up questions. My question is today is only going to accept my foot tattoos in a spray-n body. It's traveling up to your upper extremities. I would 100% talk to your doctor. I would 100%. If it were me, I would make an appointment to see an neurologist. There's a lot of different things out there that could be going on there that I'd want to get out ahead of and try to get myself better as quick as possible. It sounds like a very, very bad injury. Talk to your doctor, make sure you get the proper referrals.

A neurology appointment might be necessary for you. I have things in my brain that are popping up as to the possibilities. I'm not a doctor. I don't want to give medical advice. I would just give you the advice to go see a doctor. Suzuki, I'm not better after my first surgery failed, which I waited for almost a year. Now it's almost 17 months that I've been on workers comp. The surgeon has put in for approval for his second surgery, requires L4-5 replacement. Is there anything besides pain waiting for me financially if I'm out longer? I mean, you have a back injury and back injuries are compensable based upon your lost time. If you had a failed surgery, it sounds like a possible failed low back syndrome. When they say L4-5 replacement, are they doing a disc replacement or a fusion? I'm a little confused. I do thank you for commenting that it's a New York state case because that certainly helps out.

You do have an attorney, which is good for you because you want to make sure if you're going through multiple spinal surgeries, certainly you need to have an attorney to make sure they can guide you through. I myself have had spinal surgery. I know what it's like. It's terrible. So financially, if you're out longer, this is one of those cases where it could benefit you financially. You could get more workers compensation benefits. It's a better way to put it if you stay out longer. But you should only stay out as long as you need to stay out because workers comp by its very definition will never pay you your full salary. You will always make more money going back to work and working to your full potential. Only in those circumstances where you can't, you physically or permanently disabled and you have a law, the term we use is loss of wage earning capacity. If you can never earn the same that you once did because of your injuries, only then will workers compensation pay you for an extended period of time. And even then, unless you're totally disabled, it's not a lifelong period. So it's not something you want to rely on unless you truly, truly, truly have to. It's a disservice to those people that truly can never work again to their capabilities before they got hurt.

Question here, Omega Cypress, "I had a scaffolinate risk reconstruction. The insurance will probably send me back to work. I don't work for that job anymore. I don't have the strength and flexibility to do that job anymore." Options, well, if the insurance company is sending you back to work, they might be recommending that you no longer are totally disabled, that you have a partial disability or you might have a permanent disability, a scheduled loss of use. That's, again, a New York state.

I don't know if you're in New York or not. But if you don't work for that company anymore, you could try to settle the case if you want to and maximize your dollar value. I'm getting hand gestures from my office. They're leaving. Say goodbye. You could try to find a different job. If you have an attorney, talk to your attorney about your options. Generally speaking, in a case like this, if your injury is stabilized, you don't require any further treatment, you can either get a scheduled loss of use award for the permanent disability. Again, New York state, from a New York state perspective, you could maybe do a section 32, depending on your particular circumstances. Section 32 might be worth a little bit more money for you, and it might be more of an option since you don't work for that company anymore.

The reason why I say that is something that's going to get me going off on a tangent that I don't want to go on today, because I'm going to get aggravated and throw things, but we'll do that next week. Talk to your lawyer. If you need help with that, please give me a call.

I'm Rex Zachofsky, your workers' compensation attorney, give us a call at 212-406-8989.

Is there any benefit to returning to work early? Can doing so make you more money?

So, yes. This is what we were talking about before. With the schedule loss of use case going back to work, every week that you work and you don't stay on comp, every week that comp doesn't pay you and you work instead, is one less week that they take away from you at the end. It's one more week of salary that you make. Yes, yes, yes. It's worth more money. I used to do speeches. I've been to churches and all over. All these different groups have invited me to speak at different places. And that used to be my topic.

You will get more money by going back to work sooner than if you stay out of work forever. And keep people going, "Oh my God, what do you mean?" In cases with schedule loss of use, broken arm, bad knee, yada yada yada yada, extremity injuries, arms and legs, hands and feet, fingers and toes, you will make more money overall if you go back to work sooner rather than later. And people, "Puk" mind blown. But it's true. And that's the reason why. We've been through it. And if you guys don't, if you need more explanation, please feel free to chime in and ask. Let's see what we got here.

Another question here, "I just did my IME and the month of May makes it a year since my accident at work. I left hand in risk. I've been going to therapy and not missing any doctor's appointment. How much will I be awarded?" I wish I could answer that question for you. There's a lot of factors here like what is your average weekly wage? What's your gross average weekly earning? Have you been to court yet? Have you been in front of a judge? How much money have you received thus far in prior payments? And what's your schedule loss of use finding?

We are working on it, and I'm probably going to get in trouble for saying this. We're working on adding a loss of use calculator to our website. I can see that my IT people, the smoke is coming out of their ears right now, and they're all the way across the country. I'm sorry. But we're working on it. We're going to, it's in its infancy. We're working on something where you're going to be able to say, "This is my injury. This is my salary. This is what I'm..." You're going to put all the factors that we've discussed here into this calculator and should spit out some numbers for you to give you a better idea. And look, I can't predict the future. I don't know what the future holds. We can only take the information that you give us now and try to give you a little more advice and an idea of what's to come. So look for that in the future. We are working on it.

Rakesh has a question, "Should I trust the recreational therapist assigned by my insurance company?" Depends on what state you're in. You might have to. Certain states, the insurance companies, assign you with your doctors and your therapist. So, perhaps you might have to do that. Here in New York, you do have the ability to find your own doctor, any doctor you want. And that goes for therapy and physical therapy, occupational therapy. So here in New York, you pick a doctor that you trust. You don't trust a doctor that you're necessarily given. So talk to people. Look up reviews on these doctors. If you're forced to see a doctor, you don't have a choice. Look up some reviews on them. Maybe you can call the insurance company, give them some names of people that you would rather see. Perhaps that'll work. But I don't know what state you're in, so it's hard to answer that question.

Here's a great one, "I have an IME appointment on April 30th. Any idea on what I should expect?" Expect the unexpected with an IME. Here in New York, I get calls and emails. This is no exaggeration. Every day I get a call from somebody complaining about their IME. What the hell just happened? I waited for two hours and they saw me for five minutes. They didn't even ask me any questions. The doctor touched me. He told me to sit on the examination table and then told me to go home. I didn't do anything. By the same token, I've had people say I was in there for 45 minutes. He put me through a full workout trying to figure out what was wrong with me. Expect the unexpected. More often than not, an IME, you're going to go there. You're going to sit in a room a lot of times. You're going to sit in a room with a lot of people because they jam a lot of people into one session or one morning or one afternoon. They try to get their doctor to see as many people as possible.

You go in there and you answer a couple quick questions. He tells you, "Do this, do this, move your arm, move your back, bend over, touch your toes. See you later." They might not ever say anything to you. What I want you to do, keep your mind open. Take notes if you have to. A lot of times when people call me and they're venting about what happened at their IME, this was terrible. Especially when they get the report back, he says that I could bend over and touch my toes. He never asked me to bend over and touch my toes. He said I can heal and toe walk. He never asked me to heal and toe walk. He says that I have 90 degrees of flexion in my hip. That I was able to lift my leg off the table to 90 degrees and put it back down. We never move my leg. If things are mentioned in your report that never happened or vice versa or if you have a problem about anything at all in that report, what I tell all my clients to do, print a copy of your report. Take a second copy and highlight, underline, put notes. Explain to me the problems you have with those reports. You were there. I wasn't there. You were there. You know what the problems are.

It gives me an opportunity to go after that doctor when it's time to cross-examine him. It's funny because a lot of times they'll say they did 57 different orthopedic tests and then they'll say that the exam only lasted 7 minutes. Well, doctor, how did you conduct all of these tests in 7 minutes? You said that you did 35 different range of motion tests, but you were only there for 5 minutes, doctor. How is that possible? And doctor, you said that you spoke to my client. Was there an interpreter there because it doesn't say in your report and my client doesn't speak English? You know, I want to know these things. I need to know from you the problems that you identify with these reports, the problems you identify with these examinations. So keep an open mind when you go in there. Take notes about things that you observe, things that you had a problem with, things that caught you as being funny or weird or difficult. And when that report comes, take good notes and speak to your lawyer. Listen, this is my job. This is my occupation. This is my living. But I enjoy a good cross-examination, whether it's a doctor or it's an employer or a witness.

And when you give me good ammunition, when something has gone a little fun. Listen, just because an exam is quick doesn't mean it was bad. But if something is wrong and it gives me a chance to really go after a doctor, if there's something that was very hurtful to your case, the more ammunition you can give me and the more information you can give me in that regard is very, very helpful for me and for you. So just be mindful of what goes on in there. And again, for the most part, we're all in this together. And whether it's our side or their side, we're all in this together. Everyone knows their roles. Everyone knows their functions. And I'm not saying that every IME is evil and terrible and bad, but you need to be mindful. You need to protect yourself and you need to be careful. Just keep an open mind, be observant, talk to your lawyer about any issues that you had. Make notes during the exam. Make notes on your report. If you don't want to make a photocopy report, sometimes clients will just take a piece of paper and write out notes for me. But it goes a very long way in helping you or helping me help you. So, love the question. So I'm giving out a gold star. Alex, you get gold star number one for the week. You have two awesome questions. So thank you, thank you, thank you.

Hey, Mac, "what if my adjuster is not family as specialist after four months?" Again, state specific. I don't know what state you're in. In New York, if the adjuster hasn't found you especially at the four months, the adjuster is not going to find you a specialist. It's not their job. In New York State, you find your own doctor. Your lawyer helps find a doctor. The emergency room, the surgeon who saw you in the emergency room. You're kind of on your own. They might direct you. Sometimes they'll direct you for medical testing. That's for financial purposes. They make and save money that way.

But depending on the state, if you're in a state where the insurance company gets you your doctor, well, I would start raising some hell if they didn't give you a specialist and you need one. If you have a lawyer, I would certainly get your lawyer on the phone and get your lawyer involved. And maybe you need to get in front of a judge and get something moving here. If you need a specialist, the delay is not, there's no reason for it. So I would get some people involved here. A lot of good questions come in. Thank you guys. Truth seeker, another contributor.

Hey Rex, "if my claim was denied and has been up to my appeal hearing and there was a reversal at the first hearing in my favor, the insurance company immediately changed TPA's. Do you know why?" Again, the appellate process of New York State is different. Every state is different. I don't know what state you're in. Changing TPA's, that's just, don't worry about it. Nothing you can do about it. Don't worry about it. Changing a TPA is that certain insurance companies don't have the expertise to practicing each state or any state at all. So a lot of times certain insurance companies will hire a TPA, a third party administrator. We also see TPA's with certain municipalities. So I can't say for sure, you know, I can't think of one on top of my head, but let's just say the city of New York is not even one of the, but certain municipalities, the city of Fryerville, I'm making up, you know, might be a self-insured entity and they cover their police officers and firefighters and their town workers and their crossing guards and their self-insured. There are certain, the city of New York is self-insured.

There are certain entities that are self-insured and the city, this fictitious city that I'm inventing, doesn't know how to, they know how to put police officers on the street and they know how to train bus drivers, but they might not know how to be an insurance company because that's essentially what they are in essence, they're self-insured. So what they do is they go out and hire a TPA, a third party administrator, they hire a company that has the expertise in being an insurance company with their money. So sometimes these self-insured or these insurance companies will change TPA's, will change third party administrators. Don't take it personally, it's not a big deal, nothing you can do about it either way, so don't let it bother you.

Jose, if you go back to work and there are cameras in the workplace, we'll be watching every move that you make to use that against you. Maybe yes, maybe no, but don't exaggerate, don't do what you're capable of doing, do the best you can, and that's all there, that's all you can do. It's very tough, but is it possible, absolutely possible, if they take surveillance essentially, show it to the doctors to show that you're more capable of what the doctors have said, but you should be up for it, not as if you're a doctor in their doctor when you go for an IME. So, listen, you're gonna live your life my friend, so I wouldn't worry about it.

Are there any common mistakes injured workers make when returning to work and what can they do to avoid them?

The biggest common mistake I see injured workers make when they return to work is not following their doctor's orders, just like, you know, up until now the entire idea behind this whole discussion has been peeped, you know, telling people to go back to work as soon as they can, and it kind of gives you the idea that people are trying to not go back to work when they should, and they're trying to prolong how long they stay out of work, there's a whole other side to that that we didn't even get into, and there's a good amount of clung, and there's a good amount of clung, and there's a good amount of clung, and there's a good amount of clung, and there's a good amount of clung, and there's a good amount of clung, and there's a good amount of clung, and there's a good amount of clung, and there's a good amount of clung, and there's a good amount of clung, and there's a good amount of some clients that rush back to work and go back to work too soon, and you know what, it's a shame because sometimes I'll have these conversations with them, and some people just say, "Look, I can't stand sitting at home and watching the price is right, it's making me insane, I'd rather go sit at work and do the best I can and be in pain there."

That's fine with anybody, going back to work, talk to your doctor first, but there's also people that have really bad injuries, and you know, for whatever reason they're not getting their benefits, they're not getting their full benefits, and you know what, they tell me, "I have two kids, I got to feed, I have to go back to work, I'm sorry, but I'm going back." And I'll tell them, your doctor says you're 100% disabled, you shouldn't be doing anything, I'm looking at you, you're limping in and out of here, you're a train wreck, talk to your doctor before you do anything, and they say, "I'm not talking to anybody, I'm going back to work."

And you know what, I get it, I'm sorry, I totally get it, and it's a shame because, you know, by definition, if you're back at work, you can't be totally disabled and be working at the same time. It's just one of those things, I fully understand that person's position, you have to feed your kids and take care of your family, and you have to go to work, and I get it. Talk to your doctor, talk to your doctor, talk to your doctor, maybe they could give you some advice, maybe they could tell you, "Look, there's a better way to lift, explain what your job duties are, maybe there's something they can do to help you under those set of circumstances, maybe your employer can give you different duties." It's such a bad situation, and it hurts to even talk to people because they're in a tough spot, and they're going to feed their families, and they're going to put food on the table, and it's a terrible thing. But under any set of circumstances, before you go back to work, make sure you talk to your doctor. That's my number one biggest piece of advice. All right.

Let me see what else we got here. Suzuki, "I wish I was able to go back to my old place from employment, but they let me go during the workers' compensation case, fifth month after I was there 22 years..." Wow, so they let you go. I hope there's some documentation as to why they let you go. They are allowed to replace you. This is another big topic that comes up, and it's probably going to be either a full-length video or a live at some point, but here in New York State, your employer is not required to keep your job available. That's the quick and easy. They don't have to hold your job for you while you're out.

I always tell people if you imagine the Ford assembly line method of building cars. If the guy who puts the steering wheel on the car gets hurt and he's not there anymore, and they have to hold his job for him, they've got to get cars built. So they're going to replace him. They're going to get somebody else to come in and put the steering wheels on. And when he's able to come back, they'll do what they can. Maybe they'll find a position for him. Maybe they won't, but they're not necessarily required to hold your spot for you. But if you are fired, workers' compensation, if you are fired for filing for or otherwise participating in a workers' compensation claim, you can file for workers' compensation discrimination.

They cannot discriminate against you for filing for a workers' compensation claim, bringing your claim, or for helping or participating in someone else's claim. So if a coworker gets hurt and you saw him get hurt and you come to testify, they can't fire you for doing that. I mean, they can. They shouldn't fire you for doing that. And if they do, you can pursue benefits through workers' compensation for discrimination action. Very few lawyers do it. They are difficult. You want to have good, very good evidence. Because it's a he-said-she-said thing when it comes down to it and you want evidence of it. If you can get an email that says, "Hey, I can't believe you testified in Joe's case. You piece of crap. You're fired." Well, that's great. But a lot of times you're going to go in there and you're going to say that you were fired because of your comp claim and they're going to say, "No, we fired you because you came to work late and you're a crappy worker." And it's a horrible thing, but that's why a lot of lawyers don't do it. So that's something that you should consider and keep in mind.

Alex, "Any idea what I should expect in IME appointment?" Remind me what we talked about in your case before. Let me find it here. Oh, on your us, we discussed this earlier. Your appointment's coming up on April 30th. So I think we went over what you should expect. Expect the worst. No, you'll be okay. Just keep an open mind. Keep your eyes open as to what's going on during your... which probably will be a very quick exam.

Another question here, "Can the workers' compensation board establish more bodily injuries if your doctors are seeing that you have more injuries due to your accident?" Uh, yes. Yes. If you have more injuries -- so, again, if the insurance company says they're only accepting your case for a neck in a back, and you have shoulders involved in your accident, yes, your lawyer can fight for that. The other thing that comes up all the time is consequential injuries. So first, we're talking about injuries that are directly related to the accident. You might have heard both shoulders your neck and your back when you fell down the stairs or when the shoring beam hit you, and they might only accept a neck in the back. Well, you could fight to have the shoulders included. You still have to follow the rules.

There's a two-year statute of limitations. You've got to make sure you raise those sites of injury within the first two years following the accident. But there's also what's known as consequential injuries. And consequential injuries we see all the time with -- I mean, the most common one is if a person hurts their left leg, they blow out their left knee, and they're hobbling around on a bad left knee, and their right knee starts hurting them from overcompensation. We say it with crutches. If somebody's on crutches, sometimes their shoulders develop injuries or their wrists. Sometimes people with bad knees develop bad backs. Sometimes people with bad backs develop bad knees. It could be a lot of different things. Those are consequential injuries. We even had a consequential injury, and I always give this example, even though it's so far-fetched, we had a client who had a broken foot. And anybody who's ever had a cast knows that when it comes time to take a shower, you wrap your cast and plastic and saran wrap and you tape it up and you keep all the water out. But your doctor also says to keep your foot hanging out of the bath so you don't get it wet. And this particular individual was taking a shower with his plastic wrapped cast hanging out of his bathtub and he was standing on one foot, and guess what happened? He slipped and fell and he broke his arm. And that broken arm was a consequential injury.

So it could be something simple, like overcompensation or overuse of one body part to compensate for the injured other body part, and it could be something as stupid as slipping and falling in the shower, but nothing's out of the realm of possibility. Mel, I hope you feel better.

Hugh McCon, "can I change my lawyer after having the first hearing with the court?" Yes. In New York State, you could change your lawyer at any point in time. You are always free to contact if you're not happy with your lawyer and you feel as though that you want to get a new attorney. You're always free to consult with a new attorney. It doesn't matter that you had your first hearing. So, let's see. Tay, my pleasure.

Thank you everyone. Please give us a call at 212-406-8989, I'm Rex Zachofsky and I'll see you in the next one.

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