Jaroslawicz & Jaros, PLLC
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Jaroslawicz & Jaros, PLLC
Call or email to schedule a FREE consultation.
212-227-2780 800-269-2780
Free transportation can be provided.
Jaroslawicz & Jaros, PLLC

5 Secrets That Insurance Adjusters Don't Want You To Know

Insurance is a valuable commodity. Having insurance is a safeguard to financial loss in the event of an accident. Nevertheless, when an accident happens, the insurance company is not fully on your side. This post reveals 5 insurance secrets that adjusters and insurance companies don't want you to know.

Policing the Integrity of Workers' Comp Insurance

Q: Is your company's Workers' Compensation insurance legitimate? In New York, Workers Compensation, also known as Workers' Comp, is mandated insurance taken out by employers to cover the medical and lost wages claims of employees who are injured on the job. In general, it was designed to eliminate lawsuits against employers by injured workers, and also to streamline the employee's access to medical care and ease the financial burden that lost wages would place on the injured worker and his or her family during their treatment and recovery period. Any injured worker is entitled to workers comp--even those who are illegal immigrants, "off-the-books" workers, and even those whose employers don't carry workers' comp insurance. In the latter case, a worker can either sue their employer or collect from a workers' comp pool fund designed to protect workers from their uninsured employers (and the workers' comp organization that paid out will then seek to recover from the employer who failed to purchase the mandated insurance). Particularly in a rough economic climate, employers often feel squeezed by the rising costs of both mandatory and discretionary employee benefits programs. It's no surprise employers may seek the least expensive options for these benefits. Unfortunately, not all policies may be what they seem. On September 9, 2016, Breakaway Courier Corp., a bicycle courier company, sued Berkshire Hathaway, Inc. in Manhattan Supreme Court, accusing it of "siphoning premiums" paid on workers' comp insurance policies to unlicensed, out-of-state insurers by funneling the premiums through illegal shell companies. Without a license, you are prohibited from collecting insurance premiums. In addition, Breakaway believed it was buying an affordable, profit sharing- based workers' comp insurance policy that would reward it if its claims for loss were low. Instead, the company claims it actually purchased a misleadingly-labeled reinsurance policy that was not only costly, but was allegedly part of a "reverse Ponzi scheme" that required Breakaway to cover the losses of other companies--a position of great financial risk to the unsuspecting courier company. Plaintiffs deny any wrongdoing. In addition to $18M in damages, the Manhattan suit seeks to have the reinsurance participation agreements declared void and against public policy. Some similar workers' comp policies have been banned in other states. In addition to protecting their injured employees, allegations like those leveled by Breakaway are a reminder for employers to protect themselves as well when purchasing workers' comp policies. Have any questions regarding Workers' Compensation? Contact Jaroslawicz & Jaros at 212-227-2780, or toll free in New York 1-800-269-2780, or online here. The initial consultation is free of charge.

Construction Site Workers Not Always Limited to Workers' Comp in Accidents

Q: I got hurt on a construction job. Do I need a Workers' Comp attorney or a construction accident attorney? Generally, claims for damages related to an on-the-job injury in New York State are governed by the Workers' Compensation Law. Under Workers' Compensation, also known as "Workers' Comp", an employee can't sue his or her employer for damages, but rather is entitled to compensation for lost wages and medical bills related to the accident through the Workers' Comp claim process. These benefits are available even if the worker is an illegal immigrant, was at fault (provided s/he was not intoxicated or impaired by drugs), or even if the employer didn't carry Workers' Comp insurance. Workers' Comp was instituted was to streamline the process for an injured worker to get access to and payment for medical treatment, so s/he can heal quicker and hopefully return to work faster. While the employee is recovering, the Workers' Comp system provides for a portion of his or her salary to continue to be paid by the employer pursuant to a formula which factors in the body part injured, the percentage of loss of use of that body part, and the expected time it will take to regain its full use, if ever. Designed to bypass a traditional court proceeding, the Workers' Comp system is mandatory for employees making claims against their employers. It's beneficial in that it results in streamlined access to medical treatment and avoids a complete disruption of the injured worker's income. But a big negative is the general inability to sue your employer for other damages, like pain and suffering, or future income losses and medical bills. There are exceptions to those Workers' Comp claims limitations for workers who perform dangerous work, such as construction workers. Construction worker accidents can result from a wide variety of dangerous activities including but not limited to using defective machinery, being hit by falling debris, falling off ladders or into trenches, etc. If the workplace injury is the fault of a third-party other than the employer, the worker can sue that third party. In the case of a defective tool or piece of machinery, an injured construction worker may sue not only the manufacturer, but also the owner of the land on which the work site accident happened. And the scope of the damages sought can be broader than the Workers' Comp claim against the employer would be, covering damages such as pain and suffering, lost wages, and loss of potential future wages. Recently, a construction worker was critically injured on a job site in Brooklyn when a cinderblock fell from a height of about five feet and hit him in the head. A skilled construction accident attorney would investigate the possibility of third-party liability in order to maximize the compensation for the injured worker. For over forty years, the New York City Law Firm of Jaroslawicz & Jaros have successfully brought many Workers' Comp cases as well as cases for persons injured in various types of construction site accidents and even obtained a $44 million dollar record-breaking verdict in one such case. If you or a loved one has been injured on a construction site and are looking for an experienced firm with a proven track record, contact us here or call (800) 269-2780

Disability Insurance: Protection if You are Disabled, or a Trap for the Unwary?

Paul Shapiro was a dentist in New York who appeared to have a successful practice, performing some 275 procedures a month. As most dentists, cognizant that if they can no longer perform chair dentistry they will lose most, if not all, of their income, or at the very best be required to hire a dentist who must be paid to perform the chair work, Dr. Shapiro purchased several disability policies so that if he became disabled from performing his own occupation, he would be protected. Dr. Shapiro assumed that if he became disabled, the policies would kick in and he and his family would be protected. When Dr. Shapiro began to suffer from progressive skeletal illnesses, including osteoarthritis and spondylosis of the elbow, neck and other joints, so that he was unable to perform chair dentistry, he filed a claim for total disability benefits with the insurance carrier. At that point, the insurance carrier, which had willfully accepted and deposited Dr. Shapiro's substantial premiums for many years, took the position that since Dr. Shapiro's occupation was, in large part, administering his dental practice in addition to performing chair dentistry, he was therefore not totally disabled because he could still perform his duties as office administrator. The lower court found for Dr. Shapiro without putting him through a trial, and the Federal appellate court likewise affirmed for Dr. Shapiro that in New York the law is clear that where administrative work is incidental to the material and substantial duties as a full-time dentist, the fact that he was still able to perform administrative work did not prevent him from collecting on his disability policy if he was unable to perform chair dentistry. The Federal appellate court also made it clear that where a dentist, such as Dr. Shapiro, had purchased a policy to protect him against not being able to work in his own occupation, and proved that he was not able to work in his own occupation, he did not need to prove loss of income. In fact, in a case involving an orthopedist, the court found that even if the orthopedist was able to earn more money in a different occupation, he could still be entitled to recover for a disability from his own occupation. The Shapiro case seems quite clear on its face, that he was entitled to his disability benefits for which he had paid very substantial premiums. Yet the insurance company required him to hire an attorney, go through a lengthy discovery process, and spend years in court before finally paying him. Unfortunately under New York Law, as opposed to laws in other states, there is no provision for a disabled professional, who successfully brings a claim, to recover his attorneys' fee. This means the insurance company does not pay for the dentist having to hire a lawyer and even if the dentists wins the case, he will be out at least a legal fee or a contingency legal fee. The largest insurance carrier for professionals such as dentists, doctors, and lawyers, is Unum Provident, which has acquired other large disability carriers such as Paul Revere. Unum Provident trades on the New York Stock Exchange and is said to be the largest issuer of disability insurance in the United States. According to recent publications, Unum Provident's claim practices are the subject of a major investigation by the insurance departments of some forty-five states. Unum Provident has now agreed to change the manner in which it interprets its policies to avoid payment, pursuant to a consent decree in Georgia. In the Georgia case, Unum was also required to pay a fee of $250,000 for its improper claim practices. For other successful cases involving dentists and disability claims see, Hofer v. Unum and Fields v. Mutual Benefit Life Insurance. In other states, such as California and Florida, which permit punitive damages, juries have awarded substantial punitive damages against Unum Provident. In the case of Chapman v. Unum, the jury awarded $30 million where an ophthalmological surgeon was disabled from performing surgery because he had hand tremors and Unum Provident refused to pay his benefits. In Hangarter v. Provident Life and Unum, where a chiropractor, who was totally disabled, was denied benefits, the jury awarded him $5 million in punitive damages. In McGregor v. Paul Revere (a Unum Provident subsidiary), a court reporter who was unable to use a steno-type machine was denied benefits by Unum on the grounds that she was still able to proofread what other people typed and therefore she was not disabled from being a court reporter. The jury awarded her punitive damages and she was also found to be entitled to recover legal fees under California law. For another successful case involving a disabled court reporter, see, Mastroianni v. Unum. A dentist who purchases a policy must make certain that the policy is not an accident policy but instead an own occupation disability policy which kicks in and provides coverage if the dentist is disabled for any reason whatsoever. In Michigan, a dentist who was disabled with carpal tunnel syndrome was found not to be entitled to disability benefits under an accident policy because the disability had not arisen out of a sudden accidental event but rather had gradually developed over time. See, Nehra v. Provident Life and Accident Co. It is therefore critical to know exactly what type of policy is being purchased. It is also critical that the dentist make certain that the policy he is buying is an individual policy, if he is able to obtain one, rather than as part of the benefits he gets from his job if he works for a corporation. If he obtains a policy through the job, it is basically found to be governed by ERISA, which is the Employees Retirement Income Security Act, a federal law which has been turned on its head. ERISA was originally enacted to protect employees from having their pension funds dissipated or their benefits diminished. Instead, the courts have now interpreted ERISA to mean that the case must be heard in Federal Court without a jury, and that punitive damages and consequential damages are not permitted as a matter of law.

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