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.
Secondly, as with most health insurance policies, they will not provide coverage for pre-existing conditions. Though the Affordable Care Act has tried to prevent this in certain circumstances it does not always work. In additions, if a client is permanently disabled, no longer employed he or she is likely to not have access to health insurance without purchasing a policy for themselves which can be very costly and expensive. A client can be faced with a $1500-2500 or more monthly premium when their case settles in order to try and purchase insurance for their ongoing future medical care.
Lastly, and possibly most critical is that many construction or labor law accident victims apply or intend on applying for Social Security benefits. These are the benefits that one earns after working and paying into Social Security through their regular pay check. If you are fortunate you retire without injury and get Social Security checks each month and Medicare at 65 or later if you choose.
For the construction worker injured while on the job, he or she may need to apply for those benefits much earlier and younger. Under the rules promulgated by the Centers for Medicare & Medicaid Services, a worker who is collecting Social Security or is likely to receive accident related social security benefits, must establish a Medical Set Aside account from the proceeds of their third party settlement. This is known as establishing an MSA
An MSA is a client funded account that at the time of settlement of their third party case, he or she must use some of the proceeds to establish an account for the projected future related medical costs of their accident related health conditions. At Leav & Steinberg, LLP we retain the appropriate professionals to establish a Life Care Plan. This plan will approximate the present value of the future health care needs of the client including but not limited to prescription medicines, physical therapy, surgery, radiological tests. When negotiating with the third party defendants (those responsible for causing the accident), we can present not only the pain and suffering and fixed past economic damages but can provide for the future loss wages and medical expenses. Only then will a settlement or jury verdict be fairly representative of the true damages and a client can establish an MSA and know that he has sufficient funds to cover his future medical expenses.
You might wonder what happens if the estimate for the MSA turns out to be less than what is needed in the future. Does Medicae deny future costs above the MSA amount? No. As long as the MSA was established with an MSA approved company and reviewed by Medicare at the time, any charges beyond the MSA amount will be fully covered and the client will not jeapordize his or her medical coverage or monthly social security payments.
You can review just some of the recent labor law cases below where our firm has resolved matters for clients and provided lifetime protection for our clients needs. Please click, here for full list.
$2,500,000 Settlement: obtained for 58 year old site supervisor who was injured falling from a defective ladder during the course of demolition work. Plaintiff sustained severe lower leg fractures and underwent numerous surgical procedures.
$2,450,000.00 Settlement: for electrician who fell off a ladder while installing lighting at a construction site. He sustained a tear of the right flexor hallucis longus muscle, tear of the right tibialis posterior tendon, tear of the right flexor digitorum longus tendon, lumbar spine herniations, thoracic spine bulges, among other injuries. He underwent multiple surgical procedures and was unable to continue working in the construction trades due to his disabilities.
$2,250,000.00 Settlement at Mediation for forty-eight year old worker who was struck by a construction vehicle while he was directing traffic at a construction site. He suffered injuries to various parts of his body including several fractured ribs, a fractured shoulder, and injuries to his internal organs which required multiple surgeries.
$1,450,000 Settlement on Eve of Trial: Plaintiff, a 48 year old laborer was performing work at a construction site when his ladder slipped from beneath him, causing him to fall and cut his non-dominant hand on exposed sheetrock and metal studs. He sustained a complete laceration of his median and ulnar nerve requiring two surgeries. He has not returned to work. Plaintiff moved for summary judgment alleging that the ladder was not adequate as the worksite required him to bend between two walls. The Supreme Court granted our motion and the matter was to proceed to trial on damages only.
