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  1. #1
    Join Date
    Aug 2013
    Posts
    5

    Default Does Voluntary Retirement End Eligibility for Worker's Comp

    My workers compensation claim was made in the State of: NY

    Since 2000 I've rec monthly ck and doctor and prescription benefits. Case was closed in 2000. I was advised by attrny it couldn't be reopened unless i opted for surgery etc. Partial permanent disability re herniated discs was declared.

    Every year I filled out claimant verification form for carrier, provided tax return copies when requested and was also visited a few times by carrier agent who verified same info ( not working, 2 prescriptions for pain- anti inflammatory) Doctor's info etc. I have seen a neurologist on a regular basis since case closed in 2000, the same one who gave medical evidence during case hearings. Case is handled by a carrier who reps original insurance comp who is in a run off. They've had it since almost the outset.

    I just rec letter from WCB responding to carrier request to stop payments saying it's a voluntary retirement, withdrew from labor market. I was unaware they sent this back in April 2013. WCB denied it, stated they reviewed the case file and see no evidence of it and told carrier they need proof. All doctors reports since 2000 have been sent to WCB as required.

    Also I rejected a few sec 32 offers over the years, not in my best interests.

    I was surprised to find out they attempted this action, given the time frame . I've read up on it since letter. I also responded to WCB advising them I've cooperated with all carrier requests, still have same unchanged med condition which forced me out in the first place.Gave all info as stated above. This is the first time any question has come up re: benefits , labor market etc.

    Does anyone know where carrier goes from here and what chance to succeed? I know this appears to be a sticky area but again at close of case I was advised they could not adjust anything, it was a done deal and benefits were permanent.
    Also how can they claim I volutarily withdrew if physical/medical condition is exact same, if not worse, still on two meds etc when it;'s why I was awarded benefits in the first place. It took 13 years for them to approach this tactic, seems quite odd.

    Thank you

  2. #2
    Join Date
    Feb 2007
    Location
    Charlotte, NC
    Posts
    2,855

    Default Re: Volutary Retirement Issue, Carrier Seeks to Stop Payments

    You are probably going to need your attorney to help you deal with this.

    The theory is that they do not owe you any money for wage loss since you have voluntarily withdrawn from the work force by retiring. I do not know the law there in your state, but here in mine, if a person can prove with medical evidence that he is still disabled by the injury post-retirement, then he is still entitled to get the wage loss checks. The fact that they waited so long to pursue this is simply indicative of an adjuster not paying much attention to the file.

    Talk to a work comp lawyer. You may need to take some action to deal with this effort now.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney at Law

  3. #3
    Join Date
    Aug 2013
    Posts
    5

    Default Re: Volutary Retirement Issue, Carrier Seeks to Stop Payments

    Thank you for your response.

    Yes they took a long time and there were several different adjustors over the years who looked at the file. I'm guessing a different new one now is taking a shot without reviewing the entire case file, merely looking at the last claimant form I submitted which stated I was not working and had not interviewed etc. They filed their form within a month after I sent it. A thorough review of the file would reveal I still am under the care of a nuerologist, always have been and still have two monthly meds prescribed which would indicate proof I am still disabled and in fact did not withdraw myself or retire, I was forced to due to injury. Perhaps that was why response to their form was denied. In any event I think from what I've read ,it's similar in NY Re if you are still disabled post retirement you did not voluntarily withdraw from the labor market. Hopefully it's in my favor that it's well documented at the WCB and carrier all the doctor visits and medications prescribed since the injury. Again the WCB rejected their first attempt saying their is no proof of volutary retirement. I appreciate your help very much.

  4. #4
    Join Date
    Feb 2007
    Location
    Charlotte, NC
    Posts
    2,855

    Default Re: Volutary Retirement Issue, Carrier Seeks to Stop Payments

    I doubt that "being under the care of a doctor" and "taking medications" is enough to prove disabilty in NY. It certainly is nowhere near enough to prove ongoing disability in NC.

    You better talk to a work comp lawyer about this soon, before it is too late to do anything about it.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney at Law

  5. #5
    Join Date
    Aug 2013
    Posts
    5

    Default Re: Volutary Retirement Issue, Carrier Seeks to Stop Payments

    Thanks again and I am checking with attorney. I did not get specific re "under a doctors care" in my post.

    The Doctor I see is the nuerologist who performed all the tests originally and his reports were the ones that decided in court that my injuries warranted disabilty. He issues a report after a full exam at least 4 times yearly since the injury. It states among other things that I am still disabled and cannot return to work, that my condition remains unchanged, a short narrative each time. His exams proved disability initially and he continues to be the Doctor on record for me. I do think his exams and reports along with continued prescriptions will help show on going disablitiy. I can't see how they can hurt. His reports are detailed and were the ones that the judge ruled disability on initially and if I have 13 years of ongoing exams from the same Doctor stating I'm still disabled etc, I think it has to count for something as opposed to the view from the carrier that I simply took myself from the work force. I view it as 13 years of continued care from a very reputable Nuerologist in the NY area who still cites disability.

    I'll throw in that Soc Sec disabilty sends me a notice every three years on my disability. They are sent his reports and each time come back and state no further medical exams are needed by my Doctor or theirs. I know of others who had to get full exams/narratives but I didn't, his reports sufficed since they all stated still disabled and cannot work. He was also my Doctor on record in Soc Sec court findings.

    Bob, I will certainly speak with the attorney as you suggested, and thanks again for your interest and very quick responses ! I very much appreciate your comments and any others you might add. Have a nice weekend.

  6. #6
    Join Date
    Dec 2011
    Posts
    232

    Default Re: Volutary Retirement Issue, Carrier Seeks to Stop Payments

    When the claim was settled it would state the conditions in the decision. Your lawyer would be able to explain the settlement to you.
    Found this it might help:
    1. Retirement Issues



    If a worker "voluntarily"retires from his/her job, that worker's right to compensation benefits mayterminate if the worker is not also considered to be “totally disabled.” Theinsurance carrier may argue that the partially disabled worker who retiresvoluntarily has removed him/herself from the labor market and is no longerentitled to weekly benefit payments. In such a situation, the Workers'Compensation insurance carrier may be judicially released from liability for WageReplacement or Reduced Earnings payments (but not medical benefits) perhapsuntil the worker goes back to work, if ever. In fact, the worker who has beenfound to have voluntarily removed him/herself from the labor market may neverbe able to regain eligibility for weekly benefits, depending on the facts ofthe claim.

    However, in some claims, a worker may also be found to have retired
    "involuntarily."That is to say that the worker's causally-related injury or disease will beconsidered to have forced the worker from his/her employment because of itsimpact on the worker's capacity to continue working. Under such"involuntary" circumstances, the worker's right to continue drawingweekly benefit checks may continue even after retirement.

    Of course, the question of which types of retirement will be considered“voluntary” versus “involuntary” is not a simple one. No worker currentlydrawing weekly benefits should quit or "retire" without firstconsulting an experienced Workers' Compensation attorney. Insurancecarriers often litigate the question of whether benefit payments shouldcontinue after a worker's retirement, and indeed, the insurance companies maywin these "retirement" cases, even when claimants are represented bycompetent counsel. .

    Nevertheless, if a work-related injury or illness is truly forcing a decisionto retire, there is a very good chance a well-prepared and represented claimantcan have his/her retirement deemed "involuntary" by the Workers'Compensation Board. Weekly benefit checks will then continue, perhaps for life.If you need to retire soon due to a Workers' Compensation injury or illness,
    http://criscuololaw.com/workers_comp...nt_issues.html Read theDocuments at the bottom they are examples of cases

  7. #7
    Join Date
    Aug 2013
    Posts
    5

    Default Re: Volutary Retirement Issue, Carrier Seeks to Stop Payments

    Thank you for the info, most interesting. We'll see what the lawyer says, I don't have conditions in decision, just know that lawyer said it was permanent and carrier could never change it.
    Your info hit the point I was trying to make: that the injury forced the retirement it wasn't voluntary. I'm hoping that roughly 48 visits over the years to a doctor who documented and stated I'm disabled and can't work in any capacity will carry weight. I also think the carrier appears to be a bit disjointed in their effort: why offer more than one sec 32 settlement offers to an individual if you think they voluntarily retired and are not entitled to any more payments ? That logic escapes me . Thanks again. Obviously I was stunned by their unsuccessful first attempt considering it's been 13 years and extremely agitated, especially since I did a house refi a year ago and this money plays a huge part. Blood pressure high no doubt. Thanks to those who responded , very kind.

  8. #8
    Join Date
    Oct 1971
    Posts
    3,195

    Default Re: Volutary Retirement Issue, Carrier Seeks to Stop Payments

    tbird
    Since 2000 I've rec monthly ck and doctor and prescription benefits. Case was closed in 2000. I was advised by attrny it couldn't be reopened unless i opted for surgery etc. Partial permanent disability re herniated discs was declared.
    From what I see, for a non scheduled perm- partial disability in New York:
    The max you can receive is five hundred twenty-five weeks (ten and a half years) in cases in which the loss of wage-earning capacity is greater than ninety percent but not more than ninety-five percent;
    It goes down from there depending on the degree of loss of wage-earning capacity.

    N.Y. WKC. LAW § 15 : NY Code - Section 15: Schedule in case of disability
    Scroll down to 3- paragraph W - Permanent partial disability.

    w. Other cases. In all other cases of permanent partial disability, the compensation shall be sixty-six and two-thirds percent of the difference between the injured employee's average weekly wages and his or her wage-earning capacity thereafter in the same employment or otherwise. Compensation under this paragraph shall be payable during the continuance of such permanent partial disability, but subject to reconsideration of the degree of such impairment by the board on its own motion or upon application of any party in interest however, all compensation payable under this paragraph shall not exceed (i) five hundred twenty-five weeks in cases in which the loss of wage-earning capacity is greater than ninety-five percent; -
    http://codes.lp.findlaw.com/nycode/W....k4xD3oFC.dpuf

    All the info I have says the same thing, I don't see anywhere, where permanent partial disability in New York is payable for life.

    Tony
    Moderator
    We reserve the right to forbid any user from participating in this forum, and to close any user account, at any time, for any reason. In the interest of the community, this may be done without prior notice or warning.
    http://www.workerscompensationinsura...inks/index.htm

  9. #9
    Join Date
    Aug 2013
    Posts
    5

    Default Re: Volutary Retirement Issue, Carrier Seeks to Stop Payments

    Hi,

    I just came across something which addresses your info, I've now seen it in a few places. It was March 2007 when legislation put a cap on payments for workers comp. Any cases after March 2007 are subject to the caps. Cases prior to that are not effected by the cap. For certain cases, especially those involving spinal injuries you can get payments for life.

    That makes sense to me given that the carrier filed for voluntary retirement, not filing saying I reached the cap which I already would have passed had it applied.

    http://www.youtube.com/watch?v=oahp2UWfXds

  10. #10
    Join Date
    Oct 1971
    Posts
    3,195

    Default Re: Volutary Retirement Issue, Carrier Seeks to Stop Payments

    That's correct, my bad.

    Non-schedule benefits are based on the employee's permanent loss of earning capacity. If the work related accident or date of disablement occurred before March 13, 2007, benefits are payable as long as the partial disability exists and results in wage loss.
    If the work related accident or date of disablement occurred on or after March 13, 2007, benefits are payable for a maximum number of weeks as determined by the claimant's loss of wage-earning capacity.
    http://www.wcb.ny.gov/content/main/o...ilityClass.jsp

    Tony
    Moderator
    We reserve the right to forbid any user from participating in this forum, and to close any user account, at any time, for any reason. In the interest of the community, this may be done without prior notice or warning.
    http://www.workerscompensationinsura...inks/index.htm

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