Workers Compensation

What is workers’ compensation law?


The New York State Workers’ Compensation Law covers any employee who sustains an injury while in the course of employment.  The injury could be from an accident or a repetitive accident occurring on a particular day, or the injury could develop as a result of the employee’s work over the course of time (an occupational disease).  Every workers’ compensation case is adjudicated by the New York State Workers’ Compensation Board where hearings are held to determine entitlement to wage replacement benefits and/or medical benefits pertaining to the work-related injury.

 

Who pays a workers’ compensation claim?


Workers’ compensation is paid by your employer’s insurance company.  The premiums for this insurance are also paid by your employer.

 

What happens when you go to court for a workers’ compensation claim?


A hearing, or several hearings, are held in connection with your claim at the Workers’ Compensation Board before an Administrative Law Judge.  The insurance carrier usually sends an attorney to the hearing to represent their interests and, therefore, it is always a good idea to have your own attorney representing you in connection with your claim.  You do not have to pay an attorney out of your pocket; the attorney fees are determined by the Workers’ Compensation Board and are only payable out of any additional workers’ compensation monetary benefits your attorney obtains for you.

 

Can I sue my employer for an injury on the job?


You cannot sue your employer for injuries occurring on the job.  A workers’ compensation claim takes the place of any lawsuit against the employer.  It is possible to sue a third party who may be liable and responsible for the injury, depending on the particular circumstances surrounding the accident.  An attorney should assess whether or not a third-party lawsuit can be filed concurrently with the workers’ compensation claim.

 

Can an employer deny a workers’ compensation claim?


An employer can instruct their insurance carrier to “controvert” (dispute) a workers’ compensation claim.  This should generate a hearing before the Workers’ Compensation Board on an expedited basis.  The Board will then schedule a trial date for the injured employee to testify as well as any witnesses from the employer.  The Administrative Law Judge will then make a determination as to whether the claim should be established as a compensable work injury.  Anyone who has a disputed workers’ compensation claim should definitely have an attorney representing them at the hearing.

 

How much does workers’ compensation pay for lost wages?


Workers’ compensation is payable on a weekly or bi-weekly basis based on the injured employee’s average weekly wage.  Workers’ Compensation for a total disability is equivalent to two-thirds of the injured employee’s average weekly wage up to a maximum benefit amount.  The maximum WC benefit rate is determined each year on July 1st and is based on the New York State average weekly wage.  Workers’ compensation benefits are State and Federal tax free.

 

Can you work while receiving workers’ compensation benefits?


Any work activity subsequent to the filing of a workers’ compensation claim should be reported to the insurance carrier.  If the insurance carrier is paying monetary benefits for lost time, it is extremely important to advise the insurance carrier of any work activity, either on or off the books.  It is possible to receive workers’ compensation benefits for a reduction in earnings subsequent to a work injury.  If you earn less money subsequent to a work injury as a result of your disability, you may be entitled to monetary benefits for the difference between your current earnings and your established average weekly wage.  The calculation of your entitlement to benefits is complicated and it is advisable to have an attorney assist you with the calculation of benefits for reduced earnings.

 

Does the employer have to give you time off to attend doctor and hospital appointments?


There is no provision in the Workers’ Compensation Law which requires the employer to provide time off to attend doctor/hospital visits.  Additionally, an employer can refuse to pay you salary while you are out on workers’ compensation benefits, depending on whether or not a union or employment contract exists.

 

Do you have to claim workers’ compensation when filing taxes?


As stated above, workers’ compensation benefits are entirely tax free.  You should consult with your accountant to determine whether or not any benefits received are reportable on a tax return; however, there should be no taxes due on any benefits received.

 

How do I get a settlement from workers’ compensation and how long does a settlement usually take?


There are several different types of settlement under the workers’ compensation law.  A schedule loss of use settlement is done approximately six months to a year following the injury or last surgery and applies only to injuries to extremities (arms, legs, hands, feet, etc.).  The monetary amount is based on the percentage of permanent loss of use sustained to an extremity and is also calculated based on the employee’s average weekly wage and benefit rate.

Cases can also be settled under a Section 32 of the Workers’ Compensation Law.  This settlement can resolve outstanding issues on controverted claims, claims where an employee remains out of work and may be out of work permanently, or claims where an employee has both lost time from work and a need for extensive medical treatment.  A Section 32 can be any amount at all that is negotiated between the employee’s attorney and the insurance carrier.

Settlements can be as early as six months following an injury or could take place several years after an injury, depending on the circumstances of each accident. The Workers’ Compensation Board must approve any Schedule Loss of Use or Section 32 Settlement.

In any instance where a settlement is discussed, it is always advisable to consult with an attorney given the fact that the carrier’s attorneys are always involved with settlement of their claims.

 

How long can you be on workers’ compensation?


If an employee sustains a permanent partial disability, there is a period of temporary benefits payable, usually for a couple of years.  Once the employee is classified with a permanent partial disability, the employee could be entitled to monetary benefits for up to ten years from the date of classification. For employees classified with a permanent total disability, which are very few and far between, there is no “cap” on permanent benefits

 

Is there a statute of limitations on workplace injuries?


An injured worker has 30 days to report the injury to the employer.  Notice can be given in either written or verbal form.  The injured worker has two years within which to file a claim for benefits with the New York State Workers’ Compensation Board.  Any claim should be filed on a C-3 claim form.  If an insurance carrier pays any monetary benefit and/or pays for any medical treatment related to the work injury, this payment may serve to extend the statute of limitations.

 

Can workers’ compensation payments be stopped?


As the workers’ compensation system is an “adversary system,” meaning that the injured employee is on one side and the insurance carrier is on the other, the insurance carrier is entitled to obtain their own medical examination to determine whether or not they believe the employee is entitled to ongoing benefits.  If the insurance carrier’s doctor finds that the employee is not disabled, the insurance carrier can apply to stop the employee’s benefits.  In these situations, a workers’ compensation hearing before an Administrative Law Judge at the Workers’ Compensation Board is needed.  Given the complexities of litigating the differences in medical opinions between the employee’s doctor and the carrier’s doctor, an attorney should be consulted to litigate the claim, especially when benefits are stopped.

 

Can you get workers’ compensation benefits when you have a preexisting injury?


All preexisting injuries must be reported on a workers’ compensation claim form.  Since the employer takes employees as they find them, preexisting injuries are not a bar to the establishment of a claim if the new injury occurs while in the course of employment.

 

Is FMLA and workers’ compensation the same thing, and can an employer force an employee is take FMLA?


FMLA (Family Medical Leave Act) is a Federal law which requires the employer to hold an employee’s job for a certain amount of time.  Employers who are subject to the FMLA requirement are employers with 50 or more employees.

Workers’ compensation is a State law which has different requirements.  For example, if an employee files a workers’ compensation claim and is out of work and the employer has 50 or more employees, the employer may have to hold the claimant’s job for a certain amount of time under Federal law and the employee can still pursue workers’ compensation benefits under the State law.

The FMLA law was designed to protect an employee’s job.

 

Can you sign yourself out of work?


After sustaining a work injury, any lost time from work must be documented by a medical doctor.  Your doctor should provide a medical report reflecting that you are totally or partially disabled from work as a result of your injury.  An employee who takes off from work without medical advice will not be paid workers’ compensation benefits.

 

Can a workers’ compensation case be reopened?


Once a case has been established as a compensable work injury, the injured worker has lifetime medical coverage for the injury.  Even after the case is closed, the case can be reopened for further medical treatment if there is a change in condition.  If there is a settlement of the case, the particular stipulations of the settlement will determine whether or not the case can be reopened.  Most Section 32 settlements cannot be reopened.  You should consult an attorney whenever considering reopening a workers’ compensation claim.

 

Can you sue your employer for emotional distress?


Employers can be sued for a variety of reasons having to do with Federal and State labor laws, as well as discrimination laws, etc.  The Workers’ Compensation Law specifically provides that an employer cannot be sued for an injury sustained while working.  There are workers’ compensation claims that can be pursued for psychiatric injuries sustained in the course of employment; however, the law in this area is very complicated and an attorney should be consulted.

 

How much will I get from a workers’ compensation settlement?


A settlement for workers’ comp claim is not guaranteed.  A settlement is an agreement between both parties to close the workers’ compensation claim.  The amount of the settlement includes indemnity and medical expenses.  The amount of the settlement is based on many factors, including average weekly wage at the time of the injury, permanent degree of disability, wage earning capacity and permanent loss of use to schedule body parts.

 

How are wages calculated in workers’ compensation?


In general, a claimant’s average weekly wage is based on the claimant’s wages for the 52 weeks preceding the date of injury.   As stated previously, an injured employee’s WC benefit rate is determined by the average weekly wage established on the case.

 

 What is the average settlement for a work-related back injury?


When dealing with settlement, there is no average to take into consideration when determining value.  A settlement is based on a number of factors, including future lost time, expected future treatment, and the insurance carrier’s willingness to settle the claim.

 

How long does it take to get money from a settlement?


After a Section 32 hearing is completed, a Notice of Decision is released by the Judge.  Either party has ten days within which to withdraw from the agreement before it becomes final.  Once the Decision becomes final, the insurance carrier has ten days to send the settlement check.  It must be postmarked by that tenth day.  In general, a settlement check should be received within 25 to 35 days.

 

What happens when you go to court for workers’ compensation?


Hearings and trial are set at the Workers’ Compensation Board to address any outstanding issues. A claimant is entitled to be heard by the Judge.  The insurance carrier’s attorney will also be at the hearing point, putting forth their argument.   It is always advisable to attend a workers’ compensation hearing with an attorney representing your interests.

 

How long does it usually take to get workers’ compensation?


The amount of time it takes to receive workers’ compensation varies.  To expedite the process, a claimant must advise the supervisor of an injury as soon as possible and an incident report must be completed with the employer.  This will allow the insurance carrier to possibly pick up payments voluntarily before a hearing takes place.

 

How long does it take for a compensation claim to come through?


On average, to receive a hearing date from the Workers’ Compensation Board may take between one to two months.

 

 Do you get paid while on workers’ compensation?


A claimant may be entitled to workers’ compensation payments while out of work.  The claimant will need up-to-date medical indicating a degree of disability.  These checks are usually paid on a weekly or  bi-weekly basis.

 

How do you get a settlement from workers’ compensation?


A settlement in workers’ compensation is a negotiation process between both parties.  As stated previously, there are several different types of settlement under the workers’ compensation law.  A schedule loss of use settlement is done approximately six months to a year following the injury or last surgery and applies only to injuries to extremities (arms, legs, hands, feet, etc.).  There are also settlements that resolve other issues under Section 32 of the NYS WC Law.    Once there is a meeting of the minds, Section 32 paperwork is drawn up.  The Workers’ Compensation Board (WCB) must approve any of these types of settlements.

 

How much does workers’ compensation pay for lost wages?


If a claimant is out with a total degree of disability, the rate paid is two-thirds of the average weekly wage up to the maximum rate for the date of injury.  If there is a conflicting medical opinion regarding degree of disability from the Independent Medical Examiner, that rate may be reduced.  An insurance carrier cannot reduce the rate without an additional hearing if the Law Judge has directed the carrier to pay at a certain rate.

 

Do employers have to give you time off for doctors’ appointments?


No, actually.  The employer is not required by the New York State law to give you time off for doctors’ appointments.  Doctor’s appointment should be made after working hours if you are working, if possible.

 

Who pays Worker’s Compensation claims?


The Worker’s Compensation claims are paid by your employer’s Workers’ compensation insurance carrier.  There are some instances where the employer pays monetary and medical benefits directly because they are self-insured.

 

How long will it take to settle a Worker’s Compensation claim?


Generally speaking, the claim, depending upon on what type of claim it is, is settled within approximately one year to three years depending upon again the nature of the injury, how long you are out of work, if there are several injuries, etc.  Many factors go into evaluating a case for settlement and determining the best way to settle and the monetary amount involved.   You should always consult an attorney to evaluate and pursue a settlement of a workers’ compensation claim.

 

What happens when you go to court for worker’s compensation?


Worker’s Comp court is an administrative procedure handled by administrative judges.   The hearings at the Workers’ Compensation Board are held to determine what the proper benefits to be paid are, also to determine what the proper medical treatment is.  That is generally why we have Worker’s Compensation hearings.  The hearings are held at the Worker’s Compensation ward and in Suffolk County that is actually in Hauppauge and in Nassau County, the hearings are held in Garden City and, throughout New York City, there are several different hearing points.

 

Can you sue for pain and suffering under Worker’s Compensation?


No.  Pain and suffering is terminology used in personal injury law where there is a lawsuit against a liable  party. You cannot sue your employer for injuries taking place on the job and, therefore, pain and suffering is not an issue in a Workers’ Compensation claim. In Worker’s Compensation, the issues are whether the injuries caused were related to the work and the nature and extent of the injuries.  Pain and suffering is not an issue.  You do not necessarily get any more money or less money because there is pain and suffering.

 

Can you be fired from your job while on Worker’s Comp?


Generally speaking, yes.  If you are not covered by a union contract that protects your job, the fact that you have a Worker’s Comp injury does not protect you from being fired by the employer.  The employer basically can fire you from work because you are not able to do your job. Your employer cannot fire you because you have filed a Worker’s Comp claim; however, generally employers do not usually indicate that they are firing you specifically because of the claim; they usually indicate that they are firing you because you cannot do your job, so that is perfectly legal under the New York State Labor Law as well as Worker’s Compensation Law.

 

How long do you have to be out of work before Worker’s Comp pays?


Rhe first week out of work is considered a “waiting period” and is not payable.   The second week out of work is payable.   If you are out for longer than two weeks, then that first week becomes payable as well.   Remember, you can only be paid workers’ compensation if there is medical evidence of a disability.

 

How much is the average Worker’s Comp settlement?


Well, that is a question that is determined by the nature of the injury.  There are settlements for extremity injuries worth $10,000 to $20,000.  There are settlements for more extensive injuries worth $250,000 to $500,000.  They are not personal injury settlements and therefore there is a limit to the settlement amounts.  Generally speaking, the settlement amount is up to the attorney to negotiate with the insurance company and is based upon many factors, including the nature of the injury, the employee’s Average Weekly Wage, the lost time from work.

 

How much is a Worker’s Comp Back or Neck injury worth?


There are many factors that go into that math.  If the worker remains out of work after a Back (or Neck) injury then certainly their resolution with the insurance company is worth more.  If they remain out of work for an extended period of time the insurance carrier may seek to limit their future liability for payment of indemnity (monetary) and/or medical benefits by a” lump sum settlement” under Section 32 of the Workers’ Compensation Law. It is a voluntary negotiation and the carrier does not have to offer something reasonable and the employee does not have to accept something unreasonable.  Injured workers should always consult an attorney to evaluate their case for possible settlement, as well as the “type” of settlement appropriate to the situation, and to negotiate an acceptable resolution with the insurance carrier.

Answers by:
Richard Donohue, Esq.
Managing Partner
McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP

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