At Leav & Steinberg, LLP we are often retained by construction workers who are injured during the course of construction, demolition or excavation work. Under various sections of the Labor Law of New York, a worker in injured has many legal rights and remedies to pursue to recover for pain and suffering as well as past and future loss wages. In addition, as many times the injuries are life altering and permanent; often requiring future medical care. For these select cases, our firm seeks to recover damages for the future medical cost the client will need. In our ongoing effort to maximize a client’s recover, establishing a Life Care Plan for their future medical costs will allow us to negotiate a successful settlement and at trial to present competent evidence of these expenses so a jury can award both fair and adequately compensation.
The recovery of future medical expenses may seem both obvious and not necessary. Some lawyers might tell their client, not to worry they have Workers’ Compensation benefits and will or can use that for future medical care. Others might say that the client’s private health insurance will cover them after the case is settled. Lastly, as many client’s with permanent injuries apply for Social Security Disability which comes with both a monthly economic payment as well as Medicare, the attorney or firm will lead client to believe he or she can use Medicare and have no worries. All the above are incorrect and without proper planning, presentation and obtaining the requisite proof a client can be without proper medial coverage for his or her accident related injuries.
The reason the options just mentioned are wrong and would lead the client to a false sense of security is because there are various laws, both State and Federal that state how a client, in a construction accident, can and should prepare and protect for future medical care. Under present law in New York, when a client settles his or her third party lawsuit (that is a suit against someone other than their employer) while injured on the job, their Workers’ Compensation benefits usually end. The reason is that under Section 29 of the Workers Compensation Law, a compensation carrier, is allowed to take a credit for the net award the client/employee receives from the third party case. This credit creates a “holiday” in which the compensation carrier is not obligated to make payments. For example: if an injured party settles a third-party case and nets after attorney fees, expenses and liens, $300,000.00, workers compensation will not have to pay this client any compensation benefits until he has used up that $300,000.00. So if he was getting $30,000.00 a year in benefits at the time of settlement, he will not get compensation benefits for 10 years. At that point the client can apply for benefits to continue but often has reached a certain age, passed away or is no longer entitled to benefits. So advising a client that he can keep getting compensation benefits for medical is not going to be correct.