Workers’ Compensation Made Simple [2019]

NY Workers Compensation Laws FAQs

If you or your loved one was injured or made sick on the job in New York, this guide is for you.

I Was Hurt on the job in New York —What Do I Need to Know?

The first thing you should know is that you are the most important part of the workers’ compensation system. The system was created for you.

First—Do what you have to do to protect your health and your family’s future. That means if you are hurt or sick, get the best medical care that you can get. Don’t settle for less!

Second—If you are confused (and the system is confusing) seek representation from a competent workers’ compensation attorney. Again, don’t settle for less!

Do I Have a Workers’ Compensation Claim?

If you are hurt (or someone is killed) on the job most likely, you (or the family a deceased worker) have a workers’ compensation claim. This is so whether you, your employer, someone else (or no one at all—the act of God) caused your injury if you are hurt on the job, you likely have a claim.

New York, like most states, requires that employers provide “workers’ compensation” benefits of medical treatment and weekly wage payment for employees hurt in on-the-job, or industrial accidents, or those who suffer from occupational disease or illness. If an employee is killed on the job, his or her family is entitled to Workers’ Compensation Death Benefits. Most employers provide the required workers’ compensation benefits by purchasing an insurance policy. You can’t be charged for the coverage or for using the coverage if you are injured on the job.

Keep in mind; many claims are wrongfully denied. If you have been denied, contact a competent workers’ compensation attorney to review your claim. You should get a free consultation.

This guide will help you determine if you are entitled to workers’ compensation benefits and, if so, what you should be getting. Hopefully, it will also help you decide whether you should hire a New York workers’ compensation attorney to make sure you receive all the benefits to which you are entitled.

Do I Have a Right to an Attorney?

Yes—you have the right to legal counsel of your choosing. In New York, you have a right to retain an attorney or licensed legal representative to help you with your claim and to represent you at any hearings in front of the Workers’ Compensation Board.

In New York, you can be represented by an attorney who has been licensed by the New York State Bar Association or the Injured Workers’ Bar Association, or you can choose a licensed “non-attorney” representative licensed by the Workers’ Compensation Board.

Your attorney can’t charge you a fee directly but will be paid a fee out of your award. The New York Workers’ Compensation Board must approve all fees for legal representation.

Do I Need a Workers' Comp Attorney?

There is no requirement that you be represented, but most injured workers choose to hire a competent New York workers’ compensation attorney to represent their interests. There are several reasons for this:
• Workers’ compensation insurance companies, like all insurance companies, are in the business of making money. It is in the insurance company’s interest to pay you as little as possible;

• Although New York’s workers’ compensation law is set by statute and much of it is “scheduled,” it is still a very complex area of law with a lot that is subject to interpretation—your attorney will argue for the interpretation that favors you instead of what the insurance company wants to pay;

• The insurance company will seek to apply the law in a way that is more favorable to them and less favorable to you—that costs you money;

• The Judges of the Workers’ Compensation Board do not represent you;

• Your Lawyer can keep you from giving the insurance company ammunition by, for instance, signing a release or giving a recorded statement or by talking to the insurance company, its claims managers, nurses, or investigators (usually you should not do any of the above);

• The insurance company will be represented by a team of expensive lawyers;

• A competent New York workers’ compensation attorney has seen the insurance company’s tricks and knows how to avoid them;

• Even the simplest workers’ compensation claim has complications or potential complications;

• If your claim is denied, you should have an attorney review the denial—but beware; if you wait until you are denied, it may be too late for an attorney to undo the damage.

• Most New York workers’ compensation attorneys will give you a free consultation to see if you qualify for workers’ compensation benefits or if you have other legal claims and remedies available to you.

How do I Find a Competent New York Workers’ Compensation Attorney?

Just like not all baseball players are Derek Jeter, not all attorneys are the same. Finding a good lawyer can be daunting, but it is in your best interest to find an attorney who really knows the ins and outs of workers’ compensation law.

Of course, you probably started with a Google search for “New York Workers’ Compensation Lawyer.” That’s a good start and probably how you found this guide. You may have a friend who had a work injury and who was happy with their lawyer. That is also a good place to start.

Your workers’ compensation doctor has likely treated many injured New Yorkers and can be an excellent source for a referral to a good workers’ compensation attorney.

Won’t the Workers’ Compensation Board Protect My Rights?

The New York Workers’ Compensation Board is the government agency that decides disputed workers’ compensation claims. It also offers limited assistance to workers with questions about their coverage or claim. For instance, you can use the Board’s “Request for Assistance by Injured Worker” for help with certain problems (benefits have not started, or have stopped, your doctor has not received authorization to treat, etc.) with an undisputed claim. You may also contact the Board’s Advocate for Workers’ Compensation if you have a complaint related to your workers’ compensation coverage or claim.

According to the Board, while the workers’ compensation judges may “assist” the injured worker, it may be “advisable” to hire an attorney if the issues are complicated. if the issues are complicated.

Keep in mind, the Board does not really “represent” you and may not be able to help you get everything you should from the workers’ compensation insurance company. That is a job better suited to your attorney, who will represent only your interests.

Am I Entitled to Workers’ Compensation Benefits?

If you are injured or get an occupational disease while working for someone, you are probably entitled to workers’ compensation benefits. Most on-the-job injuries and occupational illnesses are “compensable” under the workers’ compensation laws—meaning, benefits are due from the employer to the employee. This does not mean your employer, or its insurance company, will automatically pay you what you are due. Remember—the insurance company’s “job” is to pay you as little as possible. That means it’s in the insurance company’s best interest to make sure you don’t get all that you are owed. Your “job” and your attorney’s “job” is to make the insurance company pay everything that it should.

To have a valid claim, you (or your attorney) have to show: (1) that you were hurt or made ill while “on the job,” and, (2) that you are an “employee” working in a job covered by the workers’ compensation laws.

To satisfy the first requirement, of an “on-the-job” injury, you have to prove that the injury is “related” to the job in two ways. To be related to the employment, the law says the injury must “arise in the course and scope” of the employment. In the “course and scope” is discussed in detail in a later section, but just mean the injury or illness has to have happened while you were on the job and it must have been primarily caused by the work.

The second requirement, that you work at a job which must provide workers’ compensation insurance, is discussed in the next section:

Is My Job One That Has to Provide Workers’ Compensation Coverage?

Most people who do work for someone else work in a job that requires workers’ compensation coverage. In New York, nearly every worker in a “for-profit” occupation is covered by New York’s workers’ compensation laws, including:

  • Full and part-time workers
  • Leased or borrowed employees
  • Family members and volunteers in a “for-profit” business
  • Most City, County, and State workers
  • Public school teachers
  • Most subcontractors
  • Domestic workers if employed at least 40 hours by one employer
  • Farmworkers who made at least $1,200 for farm labor in the prior year
  • Certain corporate officers
  • Many paid workers for nonprofit organizations (see exceptions in next section)
  • Minors hired to use power equipment such as a lawnmower
  • Professionals and others who have their own businesses but regularly work on-site for another employer

If you are unsure whether you are or are not an employee covered by the workers’ compensation laws, or if your employer has told you that you are not covered, you should consult with a competent New York workers’ compensation attorney.

Worker Who Are Not Required to be Covered by Workers’ Compensation

Some employers do not have to provide workers’ compensation insurance, though they may still provide it. Those employees not required to be covered by the workers’ compensation laws include:

  • Professionals and others who have their own businesses who work off-site or perform only periodic on-site services for another employer
  • Volunteers for nonprofit organizations
  • Ministers (priests, rabbis, imams, etc.) who perform only ministry duties
  • Teachers and “non-manual” employees at religious, charitable, or educational institutions
  • Workers already covered by a different workers compensation scheme (may include maritime, railroad, those covered under federal compensation laws, police and fire personnel)
  • Employees of foreign/Native American governments
  • Real estate and insurance agents who operate as independent contractors

Again, if you are unsure whether you are or are not an employee covered by the workers’ compensation laws, or if your employer has told you that you are not covered, you should consult with a competent New York workers’ compensation attorney.

What Injuries are Covered by the Worker’s Compensation?

What Injuries are Covered by Worker’s Comp

Any injury, illness, or death “arising in the course and scope” of employment is covered under the workers’ compensation laws. Some common job-place injuries include:

When do Workers’ Comp Benefits start?

An employee is entitled to workers’ compensation benefits from the moment employment starts (unlike employer-provided health insurance which usually has a waiting period for coverage.)

What if I was “Negligent”? What if it's my fault?

Some workers are told they are not covered if they failed to use safety equipment or violated an OSHA rule. While that may be true in some very extreme cases, usually you should not be denied coverage for failing to wear a hardhat or use required safety equipment.

This is because you don’t have to be fault-free to receive benefits. Workers’ compensation insurance is “no-fault” insurance. This means you are covered, with a few exceptions, even if you were injured through your own negligence. The exceptions may apply if, for instance, you were hurt while intoxicated or while acting with intent to hurt yourself or someone else.

If your claim is denied for failure to follow a workplace safety rule, ask a competent workers’ compensation attorney for a free claim review.

I Think I Have a Workers’ Compensation Claim. What Should I Do Next?

If you have been hurt on the job or have suffered from an employment-related disease or repetitive trauma injury, you should:

(1) Seek medical treatment with a doctor experienced with workers comp injuries
Non-emergency medical treatment must be provided by a doctor “authorized” by the Workers’ Compensation Board;

(2) Confer with a competent New York workers’ compensation lawyer.

(3) Notify your employer as soon as possible but no later than 30 days after your injury, even if you do not yet have legal representation. The law says you must notify your employer within 30 days for a workplace injury. You have a longer time-frame to notify your job of occupational disease.

Are There Deadlines for Filing a Workers Comp Claim in New York?

Deadline to Notify Employer—You must notify your employer (or your supervisor) of injury within 30 days, or you may lose the right to compensation.

For an occupational disease, notice must be provided the later of two years from the date you were disabled (if a disabling illness) by the disease or the date you first knew (or should have known) you had the disease.

Occupational hearing loss must be reported within three months of the end of exposure or three months after leaving the employment that caused the hearing loss.
Deadline to File Form C-3 You have two years from the date of injury to file a Form C-3 with the Workers’ Compensation Board. If you miss this deadline, you may lose your right to claim benefits.

Deadline to File Form C-62 for Death Claims—For death claims (death on the job or from a job-related illness), the next of kin or its legal representative should file a Form C-62 (Claim for Compensation in Death Case). The Deadline is the same as for Form C-3, two years from the date of death from the injury or employment-related illness.

Other Deadlines—other deadlines apply to your doctor, your employer, and the insurance carrier.

Do I Have to Go to the Company Doctors?

In most situations, you have the right to choose your worker’s comp doctors as long as they are authorized by the New York Worker’s Compensation Board (WCB). You can check here for information on how to find out if your doctor is a WCB Authorized medical provider.

Some employers are authorized to use a “Preferred Provider Organization” (PPO), and you must use one of those doctors. Your employer should have notified you if they use an authorized PPO.

If your treating workers’ comp physician wants to refer you to a specialist, like an orthopedic surgeon, that is covered as well, but if the specialist’s services cost more than $1000, you will need pre-authorization from the insurance company

Will I Just Get Medical Treatment or Will I Be Paid Money Too?

Your first concern should be getting good medical treatment. Not only does this make sure you get proper medical attention, but it will also provide the medical evidence necessary to prove your workers’ comp claim and ensure you get the benefits you are due.

The purpose of workers’ compensation insurance is to help injured workers and their families to recover as quickly as possible from a workplace injury, disease, or illness. Workers’ compensation insurance doesn’t just pay medical bills (emergency room (ER), hospitalization, x-rays, MRI, CT scans, prescription medications, physical therapy), but also replaces lost wages and even provides help with the return to work or to new work after recovery.

The workers’ compensation law sets the benefits and limits, which include both medical and wage benefits:

What Are My Medical Benefits under the New York Workers' Compensation?

 

What Are My Medical Benefits under the New York Workers' Compensation

Emergency Medical Treatment/First Aid—If you are hurt on the job, the first thing you should do is get necessary emergency treatment. While you must obtain treatment from medical providers authorized by the Workers’ Compensation Board, this rule does not apply to necessary emergency medical treatment. Workers’ compensation pays for your ambulance charges in addition to your ER or ready care visit.

Ongoing Medical Care—the injured worker is also entitled to all necessary medical care required by the injury or occupational disease or illness, for as long as treatment is required. This includes all doctors visits as well as physical therapy or even necessary chiropractic care.

Drugs/tests/medical equipment—Medical care includes other necessities such as prescription medications, testing (such as x-rays and MRIs), as well as necessary medical equipment such as wheelchairs, braces, or crutches.

The injured worker must, other than needed emergency care, receive treatment from providers authorized by the Workers’ Compensation Board or by a provider contracted with a PPO (Preferred Provider Organization) certified by the New York State Health Department.

Also, as long as you are claiming temporary wage benefits, you are required to see your doctor at least once every 45 days.

Wage Benefits

If you are hurt on the job and unable to work for some period, you are entitled to a weekly wage benefit that is 2/3 of your average wage up to a maximum limit.

Temporary Wage Benefits
Your temporary wage benefit will be determined by whether you are totally disabled or partially disabled during the recovery phase of your injury or illness, as follows:

Temporary Total Disability (TTD)—A worker who is “totally disabled” during the recovery period from their industrial accident or occupational illness gets 2/3 of their usual weekly wage up to the maximum benefit (adjusted every year on July 1). The current maximum weekly wage benefit is $934.11.

Temporary Partial Disability (TPD)—If, or once, the employee can return to light duty, they are paid benefits for Temporary Partial Disability, to make up to 2/3 of the difference in pay they receive before the injury as opposed to what they are making under limited duty. This means a worker who is “partially disabled” gets 2/3 of the difference between their usual full duty pay and the light-duty pay (up to the same maximum wage benefit a for total disability).

For disabilities that are “temporary,” whether the disability is “partial” or “total,” you will receive the allowable weekly wage benefit as long as the disability exists. If the disability continues beyond a certain point (called “Maximum Medical Improvement”), you will receive a “permanent” disability rating and benefits for permanent disability.

“Permanent” Wage Benefits
For permanent disabilities, if the disability is total, there is no limit to the number of weeks you get the wage benefit. Permanent disabilities can be “partial” (PPD) or “total” (PTD). Permanent “partial” disabilities (PPD) are divided into two categories: those that are “scheduled” and those that are not scheduled. (See here for more on “Disability Ratings,” including an explanation of scheduled and non-scheduled disabilities).

Wage benefits are not paid for the first 7 days of injury unless the injury extends beyond 14 days, then the injured worker gets the benefit for the first 7 days as well as for the remaining days injured.
If you later return to work, but because of the injury cannot make what you did before, you may be entitled to a weekly payment to make up for some of that difference.

What Should I Do If My Workers’ Compensation Benefits Stop?

If you are not sure, your benefits should have stopped, seek a free evaluation from a competent workers’ compensation Lawyer.

Can I Combine Workers’ Compensation Benefits With Other Benefits?

In some circumstances, you may be entitled to both workers’ compensation benefits and social security disability, or even unemployment benefits.

You may also have a “third-party” claim (see here) in addition to a workers’ compensation claim.

Ask your workers’ compensation attorney, or another attorney, if you qualify for any other claims or benefits.

Is Occupational Disease or Illness, like silicosis or Black Lung, Covered?

Yes. The New York workers’ compensation laws cover an occupational disease. To be covered the disease or illness must be primarily caused by the work. Some common occupational diseases include hearing and vision loss, asbestosis in asbestos miners or remediation workers, bakers’ asthma, black lung in coal miners, HIV or hepatitis in health care workers, and work-related chemical poisoning, and many other illnesses causally related to employment.

Once you show you have an occupational disease or illness, you are entitled to the same benefits as for an industrial accident or work injury.

What if My Loved One Was Killed on the job?

Workers’ compensation coverage includes “death benefit” coverage, which provides for funeral and burial expenses as well as a monetary “Death Benefit.”

If a worker is killed in an on-the-job accident, his survivors may file a claim for death benefits. Dependents, such as a surviving spouse and children, are entitled to the deceased worker’s wage benefit. The wage benefit can’t exceed the maximum weekly benefit for the worker no matter how many surviving dependents there are. If there are no surviving dependents, the worker’s parents or estate may be entitled to a lump-sum payment of $50,000.

The available funeral and burial expense current maximum are $10,500 or $12,500 depending on the county.

Is Repetitive Injury, like Carpal Tunnel or a Herniated Disk Covered?

Repetitive use injury (also called Repetitive Stress Injury or RSS), such as carpal tunnel in office workers and back injuries in industrial workers, are covered injuries if the work can be shown to be the primary cause of the injury. These injuries can be hard to prove and are often disputed by the insurance company. But if the employee can prove to the NYS Workers Comp Board’s satisfaction that the injury was caused mostly by the employment, they will be compensable injuries.

You should hire competent legal counsel if you think you have a claim for repetitive use injury as these claims are almost universally disputed.

What Are Disability Ratings?

A “Disability Rating” is a tool used by the Board to determine the percentage (from 0-100%) of permanent injury from your work injury. This rating determines whether you will receive benefits for your injury and how much. The higher your disability rating as a percentage from o to 100, the more you will receive in wage benefits from your workers’ compensation claim.

Though the Workers Compensation Board has discretion in determining the disability rating, once a rating is assigned, benefits are set by the NY statutes. These statues assign certain benefits depending on the percentage of disability to particular body parts or systems.

You are generally not rated for permanent disability until your doctor determines you have reached Maximum Medical Improvement, or “MMI.”

Who Determines My Disability Rating?

Disability ratings are made initially by your doctor. Your doctors will assign a percentage of “impairment” to the different parts of your body injured in the workplace accident. These percentages of impairment will then be combined to determine your overall permanent disability rating.

The Board has prepared a helpful guide called “Workers’ Compensation Guidelines for Determining Impairment” available here. This guide explains the relationship between “Impairment” and “Disability Rating” and gives guidance on how impairment is determined for different body parts and systems.

If the employers’ insurance company disagrees with your doctor’s rating, it can send you to its chosen doctor for an “Independent Medical Examination” or an “IME.”
The Board will then consider both doctors’ reports, and the Board will issue your disability rating.

How is My Disability Rating Used?

Disability ratings determine the wage benefit you will receive and how long you are entitled to receive the benefit. Permanent disability ratings, like partial ratings, are divided into two classifications based on whether the disability is “partial” or “total.”

Since the disability rating determines the amount you are due, it is in the insurance company’s interest to try to send you to doctors. The company knows that it will give you the lowest possible rating.

Permanent Total Disability (PTD)

As its name suggests, a worker who is “PTD” is considered totally disabled—or unable to earn a wage—permanently. With this rating, the employee is entitled to the maximum allowable wage benefit (the same current maximum weekly wage benefit of $934.11 available for Temporary Total Disability).

There is no limitation to the number of weeks PTD is paid. Sometimes a worker rated PTD may still be allowed to work for a wage and receive PTD as long as they do not exceed a maximum combined limit. Consult your workers’ compensation lawyer to see if you qualify.

Permanent Partial Disability (PPD)

The permanently partially disabled worker is one able to earn only a partial wage. PPD will be limited to a certain number of weeks of pay, depending on the injury. Since your PPD award is for a limited number of weeks, it will be reduced by temporary disability payments already received.

The remaining award will then be paid on a weekly basis or in a lump sum payment. Benefits due to a worker with a PPD rating depends on whether the injury is a “scheduled” or a “non-scheduled” injury, which is explained below.

Scheduled and Non-Scheduled Benefits

Permanent Partial Disability (PPD) claims are categorized as those that are “Scheduled Loss of Use” (SLU) awards, and those that are “Non-Scheduled” awards.

 

Scheduled claims

Scheduled claims involve injury to body parts that are specially listed in the workers’ compensation laws (with no injury to a non-scheduled body system). Scheduled injuries include injuries involving only: extremities (arms, legs, hands, feet, fingers, toes), certain scarring, and job injuries or occupational illnesses involving hearing and vision.

The most you can get for scheduled benefits is 2/3 of your average weekly wage over the 52 weeks before your injury or occupational disease, multiplied by a percentage of the maximum number of weeks set out in the schedules for the listed body part. The percentage of the maximum allowable weeks of benefit is the percentage of loss of use to the particular body part.

For instance, the current maximum benefit for permanent partial injury to an arm is 2/3 of your average weekly wage for a maximum of 312 weeks depending on the percentage loss of use.

The following example from the New York Worker’s Compensation Board illustrates an award based upon a rating of 25% loss of function of an arm to a worker whose average weekly wage was $900 before the injury (http://www.wcb.ny.gov/content/main/Workers/ScheduledLossUse.jsp):

Maximum Weeks Allowed of SLU Benefits

Percentage of Loss of Use

Duration of Weekly SLU Benefits (312 x 25%)

Average Weekly Wage

Weekly SLU Benefit (AWW x 2/3)

*Total Amount of SLU Award (78 x $600)

312

25%

78

$900

$600

$46,800

Non-Scheduled Permanent Partial Ratings

Non-Scheduled Permanent Partial Ratings—your PPD is “non-scheduled” if you have any injury or combination of injuries that includes something that is not scheduled.
You probably noticed disability ratings could be very complicated with lots of room for error or “discretion.” For that reason, it may be advisable to seek competent representation to help ensure you are properly rated.

What is Maximum Medical Improvement?

Maximum Medical Improvement, or MMI, is when your doctors have decided you have recovered as much as you likely ever will from your injury. This does not mean you may not still need future medical treatment, but only that your condition is not likely to improve.

Your worker’s comp doctor usually determines MMI. The insurance company may demand an “independent” medical evaluation (IME) with one of their IME doctors, however the Workers’ Comp Board ultimately responsible for making the MMI determination in a contested case.

MMI is also the point at which your “temporary” wage benefits end and when you will receive a “Permanent” disability rating if you have not fully recovered from your workplace injury.

What if My Condition Worsens After Maximum Medical Improvement (MMI)?

If your condition worsens after you have reached “Maximum Medical Improvement” and your claim is still open, you should be able to be reevaluated.

Even if your workers’ compensation claim has been settled, it may still be possible, depending on the terms of the settlement (if the settlement was a Stipulation Agreement rather than a Section 32 Waiver) to “reopen” your claim to get additional compensation.

Consult with a competent New York workers’ compensation attorney if your condition has worsened after MMI and you are unsure of your options.

Do I Get Rehabilitation from my Workers' Comp Injuries?

The Workers’ Compensation Board offers many “rehabilitation” services, including:

Medical rehabilitation

Medical rehabilitation from workers’ comp injuries includes services like

Vocational Rehabilitation

Vocational Rehabilitation which includes testing, training, and counseling to help you transition into another career. These services can help you to identify and train for new work suited to any remaining injury or disability as well as help you with things like interview preparation;

Job Placement and Social Services

Job placement will help you find work you can do while Social Services can provide a host of services from help with things like childcare during a job transition to assist with things like keeping landlords and creditors at bay and help the injured worker to navigate public assistance such as food stamps and food pantries.

The Social Service Unit of the Workers’ Compensation Board will help you identify the many services available free of charge.

 

Can my Employer Force Rehabilitation?

In most cases, rehabilitation is your option. The employer or its insurance company cannot usually force the injured employee to use rehabilitation services. Rehabilitation is required where a worker is awarded certain Permanent Partial Disability Awards greater than 50%.

What are “Disputed” and “Undisputed” Claims

Undisputed Claim

Sometimes an employer and its insurance carrier agree to pay workers’ compensation benefits to an injured employee. This is called an “undisputed claim.” This does not mean the Insurance company will agree to pay you everything you are due, so it is often still advisable to hire legal representation for an “undisputed” claim.

Disputed Claim

When benefits are not voluntarily paid, this is called a disputed claim.
The New York Workers’ Compensation Board has authority to hold hearings before a workers’ compensation judge who will decide whether a disputed claim is “compensable” and if so, make the insurance company pay the benefits.
It is highly advisable to have legal representation for any disputed claim. If you are not represented, that means only the insurance company has legal representation.

Can I Demand a “Review” or “Appeal”?

“Review” or “Appeal” is when a decision is reviewed by a “higher” body or a court to decide if the original decision was correct (but read “Caution” at the end of this section).

You have an absolute right to at least two levels of review of a decision against you.

Review by a Three-Judge Panel of the Board

The decision of the workers’ compensation judge may be “reviewed” upon request of either party, who must file a written request for review within 30 days of the decision. Decisions are reviewed by a three-judge panel. The decision of the three-judge panel may be appealed to the Board of Commissioners, who may accept or refuse the requested appeal.

Appeals to the Courts

Either party to a dispute decided by the Workers’ Compensation Board has the right to appeal to the Appellate Division, Third Department, Supreme Court of the State of New York, where they are heard by a five-judge panel. The appeal must be filed with the Appellate Division within 30 days of the Board decision.

The parties provide a “settled” record to the Appellate Division, which includes the exhibits, records, and testimony to be reviewed by the Appellate Panel.
Some decisions of the Supreme Court may be appealed to the Court of Appeals, those where there is dissent in the Appellate Division and those accepted by permission of the Court of Appeals.

Caution: An appeal will only review a judge’s decision for “legal error.” A legal error does not mean the lower judge made the wrong decision, but that he made one that is not supported by the law or the evidence. The court that hears the appeal will not “retry” the claim, but will review only for “legal error” and will be limited to the “record” provided to the original judge by the parties (you, your attorney, and the insurance company attorneys). You can’t assume an appeal will “fix” a faulty presentation before the workers’ compensation judge.

This is another reason you should obtain legal representation at the very earliest stage of your workers’ compensation claim.

What is a Stipulated Settlement and is it Different from a Section 32 Waiver?

If the parties agree, a workers’ compensation claim can be “settled” rather than “tried.” There are two kinds of settlements. Both require the approval of the Workers’ Compensation Board.

Stipulation Agreement

The first settlement is called a “Stipulation Agreement.” This kind of settlement is appropriate when there is no real dispute about the nature and extent of your injury that it is work-related, and to what benefits you are entitled.

In a stipulation agreement, you and the insurance company agree on the benefits owed, and you are given those benefits as they become due. A Stipulation Agreement may be reopened if the conditions of the settlement change.

Section 32 Waiver Agreement

The other kind of settlement is named a Section 32 Waiver Agreement for the form (Form C-32) that must be submitted to the Board for approval.

Section 32 settlements usually result in a lump sum payment to you, the worker but they cut off your right to additional benefits, even for future medical treatment.
Section 32 Waiver Agreements may be withdrawn by the employee up to ten days but then after that cannot be withdrawn and your claim cannot be reopened even if you have a change in circumstances.

Why Would I Settle my Claim?

It may be in your interest to accept a Section 32 settlement of a disputed claim if:

1. There is a legitimate chance that you will lose your hearing. It may be in your best interest to settle the disputed claim rather than run the risk of getting nothing at your hearing.

2. For other reasons, you just want to be done with the process.

How Much Should I Settle For?

Each claim is different, and there is no one formula to determine how much your claim is worth.

It may be advisable to consult with a competent New York workers’ compensation attorney before agreeing to any settlement, especially a Section 32 Waiver, of your workers’ compensation claim.

Your attorney will take into account:
• the nature and severity of the injury
• the strength of any defenses raised by the insurance company
• the likelihood you will be able to return to gainful employment
• the likelihood you will need future medical or other care, and
• awards and settlements in similar claims.

My Company Says I’m a “Contractor” Not an Employee What Should I do?

There is no one rule that determines whether you are an employee, but there are several factors the Workers’ Compensation Board will evaluate to decide if you are an employee.

You are probably an employee if:

(1) your “boss” tells you when and how to do the work;

(2) your “boss” retains the right to hire and fire the individuals doing the work;

(3) the “boss” provides the tools/equipment and materials for the job;

(4) your specific work is consistent with the kind of work generally done by the employer (for instance a mechanic hired to repair cars at an auto repair shop is probably an employee, while a painter hired to paint that same auto repair shop may (or may not) be an independent contractor rather than an employee);

(5) you are paid on an hourly, daily, weekly, or monthly basis rather than by the project

The lack of one or another of these factors does not necessarily mean that you are not an employee, so you should get a legal opinion if your “employer” tells you that you are not an employee.

Construction Workers are Presumed to be Employees Rather than Contractors

If you work in the construction industry and provide services for pay, the law presumes you are an employee and not an “Independent Contractor.”

It will be up to the employer to prove you are not an employee, using the factors cited in the section above. If you face this defense, you should definitely consult a competent New York workers’ compensation attorney.

Workers Comp Construction Accident in New York

 

The Insurance Company Says I was Not “in the Course and Scope of Employment”?

The course of Employment

The first part of the “relatedness” requirement to be covered by workers’ compensation at the time of injury is that the employee is in the “course of employment.” This mostly means you were “on the job” at the time of the workplace accident or occupational disease. We are most obviously on the job (in the course) whenever we are on the clock.

What about when coming to work and going home?

We are generally not on the job when we are driving to and from work, but we may be on the job and thus “in the course” of employment even then if, for example, the employer has asked us to go out of our way to do a job-related task (such as pick up a fellow employee, or materials for a job, or if asked to drop off or pick up the company mail).

What are some Examples of compensable “off-the-clock” workers comp injuries?

We may be in the course of employment even before we enter the place of employment, if, for instance, the employer provides or dictates a parking area and the injury takes place while walking to or from the provided parking area.

What if the employee is injured while playing for the office softball team? Even this might be an injury arising in the course of employment if the event was sponsored by or even encouraged by the employer. The test will be whether the employer had something to gain by the employee’s participation in the event.

What about a worker sent to a convention in another city which is injured after work hours? Or at the hotel? That worker may be in the course of employment at the time.

Scope of Employment—The second part of the “relatedness” test, in the “scope” of employment, means the injury must be “caused by” (or primarily caused by) the work. Sometimes this part is easy to decide. Often though, this is the part of the test for job-relatedness that causes the most confusion, and the insurance companies love to make you pay wherever there is any confusion.

Easy cases:

Suppose a carpenter cuts his hand using a saw. That is an injury that arose in the scope of employment since we all know carpenters are paid to use saws.

Not so clear-cut:

What if instead of a cut, the carpenter hurt his back? This is not so easy:

1. If the carpenter hurt his back installing a cabinet, we would likely all agree that injury was in the scope of employment—that is to say that the injury was “caused” by the job;

2. What if the carpenter instead hurt his back bending over to pick up his carpenters’ pencil? This is more complicated, but probably still job-related;

3. Suppose the carpenter was on-the-clock when his back simply started hurting from an old football injury? Probably not job-related.

4. What if our carpenter’s back started hurting while he was at home watching television after the workday, but the pain was caused by repetitive injury to his back from years of carpentry work? This may be a compensable workers’ compensation injury if the worker can prove the back injury was primarily related to job duties, or that the job duties aggravated a preexisting injury.

5. Finally, what if the carpenter suffers a stroke or heart attack while on the job? This may or may not be compensable depending on whether the job was the primary cause of the stroke or heart attack.

As you can see, whether an injury or illness is a compensable “work injury” depends on many factors besides just being on the clock. If you find your employer arguing your injury did not occur “in the course and scope of employment,” you have the right to seek a free consultation with a competent New York workers’ compensation attorney.

Can I Also Sue My Employer or a Third Party for an on-the-job Injury?

In most cases, you can’t “sue” your employer for your workplace injury. Workers’ trade the right to sue their employer in exchange for the employer, giving up most of the legal “defenses” that used to be available to employers.

Because of the “trade” discussed above, workers’ compensation benefits are considered the “exclusive remedy”—or only option for recovery against your employer for an on-the-job injury.

This rule does not apply where the employer causes intentional injury or fails to provide workers’ compensation insurance. In these cases, you have the right to sue the employer and can recover damages over what would have been allowable from a workers’ compensation claim.

Suing a “Third Party”

The exclusive remedy doctrine does not mean you can’t sue an unrelated third party for an on-the-job injury.

For instance, if you are hurt in an auto or trucking accident while driving for your job and the accident was caused by a negligent third-party, you have both a workers’ compensation claim and a “third-party claim.”

Another scenario where you might have both a workers’ compensation claim and a third-party claim would be if you were hurt on the job because a tool or piece of equipment failed. In this case, you may have both a workers’ compensation claim and a third-party products liability claim against the manufacturer of the tool or equipment that cause the injury.

Warning: Your personal injury attorney must get approval from the workers’ compensation insurance before settling your third-party claim, and you will be required to pay back at least part of what was paid by the workers’ compensation insurance. If your personal injury attorney does not get the approval and repay the workers’ compensation insurance, you will lose any future workers’ compensation benefits. Be sure to discuss this with both your workers’ compensation attorney and your personal injury attorney (if they are different).

In many instances, even though you will have to pay back the worker’s compensation insurance some of what it paid, you will still benefit from pursuing both a workers’ compensation claim and a third-party claim. This is another reason you should consult with a qualified workers’ compensation attorney about your on-the-job injury to see if you have additional claims.

Dual capacity doctrine not recognized in New York

Unfortunately, New York does not recognize “dual capacity” doctrine. That doctrine says if the employer also has a separate “relationship” to the employee that contributed to the injury, the employee may have both a workers’ compensation claim and a third-party action against the employer.

For instance, some states allow both a compensation claim and a lawsuit against a product’s manufacturer whose own employee is injured on the job from a defective product. Again, this doctrine is not available in New York.

Will I lose My Job if I File a Claim?

You can’t be fired for “filing a claim.” But you can lose your job after filing a claim for reasons other than the fact you filed a claim.

If you think you may have been fired for filing a workers’ compensation claim, you should consult with your workers’ compensation attorney to see if you have a “wrongful termination” claim against the employer.

Do I have to Attend Workers' Comp Hearings?

If you hire an attorney or licensed representative, they may attend some hearings without you, but they will probably want you at the trial if there is one.

If you don’t have an attorney or representative and you are unable to attend live hearings, New York allows injured workers (or their attorneys and representatives) to attend online. See here.

Does my Employer Have Workers' Compensation Insurance?

It’s a mandatory requirement for New York employers to carry worker’s compensation insurance.

New York offers online workers’ compensation “Coverage Search” for interested parties to search for compensation and some other employer/employee insurance coverages from 2001 to-date.

The portal may be found here on the Workers’ Compensation Board’s website.

If your employer does not carry the required workers’ compensation insurance, you may be entitled to sue them in the ordinary court system.