What is a workers compensation claim?
In New York, when an employee is injured on the job, unless there was an intentional act on the employer’s part, the employer cannot be sued for damages by the employee; instead, the only recourse the employee has for loss of income and medical treatment for his/her work-related injuries is Workers’ Compensation insurance. Every employer with at least one employee in the State of New York has to be covered by Workers’ Compensation insurance. Workers’ Compensation insurance provides injured workers with full compensation for medical bills and partial compensation for lost wages if they have been injured on the job. The injured employee may have a third party claim if someone other than the employer is responsible for their injury.
While the rules and regulations governing claims under Workers’ Compensation Act are complex, we believe it is important that you have a basic understanding of what the term “Workers’ Compensation” means. Workers’ Compensation is a no-fault system which means you usually do not have to show that the employer did anything wrong to have caused your injury. All you have to prove is that you were injured while working. Workers’ Compensation is completely separate from other benefits like group health, life, and disability insurance that some employers may have. The New York Workers’ Compensation Board (WCB) handles all claims for injured workers in this state.
- Am I entitled to Workers’ Compensation Benefits?
You are entitled to Workers’ Compensation Benefits if the following are true:
1) Your employer has at least one employee;
2) You are an employee (as opposed to an independent contractor) and do not fall under a statutory exception or a volunteer protected under the statute;
3) Your accident took place while you were performing your work duties, or your health condition (in case of an occupational disease) was developed over time as a result of performing your regular work duties;
4) The injury took place in NY, or you reside in NY, or your employer is located in NY, AND there is not a contract signed by both you and your employer opting out of NY Workers’ Compensation law; and
5) Your injury was not caused solely by a prior accident.
- Understanding Your Injury
Claims can happen if there has been an accident, an occupational disease (something that occurs over a long period of time that the employee has a greater risk of contracting than the general public would do to the nature of the job), or a specific traumatic injury (back injuries, such as picking up something heavy and feeling a pop or twinge in your back, etc). Occupational disease injuries are very limited (such as carpal tunnel syndrome, which is an injury to the hand/wrists due to repetitive motion).
Your claim will be filed under one of these conditions after talking to your attorney.
- Filing Your Claim
When you are injured on the job you have 30 days to notify your employer, preferably in writing, that you had a work-related accident. With very few, rare exceptions, not giving timely notice will generally prevent you from successfully pursuing a Workers’ Compensation claim. While you have up to two (2) years from the date of your accident or, in case of an occupational disease, from the date when you knew or should have known of your condition, to file a claim with the Workers’ Compensation Board, your chances of success decrease the longer you wait to file. To ensure that you have complied with this requirement, our firm files a C-3 Form with the Workers Compensation Board within 72 hours of receiving the signed copy of it back from you, even if you have filed one before. If you have previously suffered the same or similar injury to the site you are claiming in your Workers’ Compensation claim, you must also sign the C-3.3 Form, which will be submitted together with the C-3 Form to the Workers’ Compensation Board on your behalf. In order for us to submit any of these documents in your behalf, you must sign and return the OC-400 Retainer Agreement that we are submitting to you together with the C-3 and C-3.3 Forms.
- Getting the Claim Accepted
Our efforts at the beginning are to get your Claim timely filed and to get the insurance Carrier for your employer to accept the claim. The Carrier has 18 days after disability or 10 days after employer had knowledge of injury, whichever is greater, or if the first notice of the accident or illness is a notice of indexing, then 25 days from receipt of the notice of indexing to respond by either denying the claim (by filing a C-7 Form) or accepting the claim (by filing a C-669 Form). However, we immediately begin fighting for you by getting in touch with the insurance company and attempting to resolve any issues. Independent of whether the Carrier accepts your claim right away, upon receiving the Notice of Indexing we will request a hearing to get your case established. We do this because if the Carrier voluntarily accepts your claim and begins making payments, the Carrier may suspend your payments without warning. If payments are directed by the Judge, which can only happen once the case has been established, the Carrier may only suspend or reduce your payments after requesting a hearing and being successful on the merits. We will then be aware of the reason why the Carrier seeks suspension or reduction, and can prepare a defense in order to ensure such actions are not taken.
- What Happens if My Claim is Automatically Accepted by the Insurance Company?
If your claim is accepted and your doctor has properly documented that you are totally disabled and out of work as a result of the work-related accident, you are entitled to receive 2/3 of your Average Weekly Wage (AWW) up to the pre-set statutory maximum correspondent to your date of accident. You have to miss more than seven (7) days of work in order to be entitled to benefits – this is called a “waiting period”. You also have to have the appropriate medical documentation in the appropriate forms (C-4, C-4.2) indicating the exact percentage of disability that you have and specifically connecting your disability to the history of your work accident. You need to see your doctor every 45 days in order to keep receiving your benefits. The Carrier may also request that you be examined by an Independent Medical Examiner (IME) in order to verify that your doctor’s opinion regarding your condition is accurate. If there is a difference in opinion regarding your degree of disability, the Carrier has the right to rely on the IME opinion and reduce/suspend your payments accordingly until testimony is taken and we can show that your doctor’s opinion is more credible. If your doctor is saying you have less than a total disability or the Carrier has accepted your claim for less than a total disability, your wage benefits will be limited to the rate correspondent to that degree of disability as set forth by statute.
You must also know that just because the Carrier accepted your claim it doe not mean it will be smooth sailing and you won’t need a hearing. When the Carrier voluntarily accepts your claim they can pay you at lower rates than you are entitled and with delays without necessarily facing any penalties. You should always get your case established and your payments directed by the judge by scheduling a Hearing.
- What Happens if My Claim is Disputed/Denied?
If your claim is denied, the Board will usually schedule a pre-hearing conference, which is a first appearance where you, your attorney, and the Carrier’s attorney are present before the Judge to submit the different positions, give the name of any witnesses on both sides, and receive the date of a first hearing/trial. There is nothing we can do until a trial is held. Your attorney will prepare you for testimony at the trial. You should give the name and contact information of any and all witnesses to your attorney as soon as possible so that they may be contacted and present at the trial. You should also give your attorney a copy of all pertinent medical records, pay stubs, tax returns and W-2s, as well as any other documents you may have related to this claim. You should also disclose to your attorney if you have ever suffered any type of accident whatsoever in the past, and what your injuries were. If you have injured the same site you re-injured in the work-accident, you must tell your attorney the details of that prior accident, including the name of the doctor who treated you and whether you received any settlements or were represented by an attorney in case you filed a lawsuit in connection with that prior accident.
- How Much Will I Receive in Wage Benefits?
Your level of disability can fall under one of four categories:
Mild = on average 25% disabled (includes any disability greater than 0% and up to 49.99%)
Moderate = on average 50% (includes 50-74.99 % disabled)
Marked = on average 75% (includes 75-99.99 % disabled)
Total = 100% disabled
Your wage benefits are based on your percentage disability, your gross average weekly wage during the year leading up to the date of accident, and the statutory maximum allowed at the time of your accident.
- What Determines My Average Weekly Wage (AWW)?
You should collect any and all pay stubs you have from the year prior to your accident so that we can prove your AWW. Your AWW is includes all regular and overtime hours paid and pertains to the total amount BEFORE taxes (gross wages). The employer must also submit the payroll (Form C-240) showing how much you were paid, and you can verify the accurate of their reporting and demonstrate any discrepancies by presenting your pay stubs.
If you work at two jobs and because of your injury is out from both, both wages are taken into account. Unfortunately pensions and bonuses are not necessarily a part of your AWW calculation – however tips and overtime are.
- When Will My Claim Get Settled?
Settlements generally do not happen until you have reached a degree of maximum medical improvement. According to the Medical Guidelines, in case of injuries to extremities (such as legs, arms, knees, shoulders, elbows, hands, feet, etc) you probably will not reach maximum degree of medical improvement until one (1) year after your date of accident or date of surgery (if you have surgery), and two (2) years after the date of accident or date of surgery (if you have surgery) if you have back or neck injury or a condition such as RSD. At that time your doctor should evaluate you for permanency. For extremity injuries, you will be entitled to what is known as a Schedule Loss of Use (SLU) award, which is a lump sum award based on the percentage SLU your doctor is giving you and the maximum rate of compensation determined by your AWW and date of accident. For neck and back cases, your doctor will give you a percentage or Permanent Partial Disability (PPD) or Permanent Total Disability (PTD). At that point we can seek to classify you as either a PPD or PTD. If we successfully classify you as a PTD you are entitled to benefits for life at the total rate of compensation. If you are classified as a PPD, you are only entitled for benefits at the rate correspondent to your degree of disability for a set number of years. You must also look for work within your restriction and document your work search in order to continue to be entitled to benefits, unless you are found to have involuntarily retired as a result of your work related injury.
Settling your claim becomes possible when you are classified as a PPD or PTD, as well as when you are entitled to a SLU award because the Carrier has an interest in closing your case permanently and not owing you any more payments or medical treatment coverage. We will only settle your case if it is in your best interest and/or if you express a desire to do so. It is important that you understand that settling your claim means that you will no longer have any claims (whether for wages or medical coverage) against the insurance Carrier related to your work-injury unless otherwise agreed by both parties. Other important considerations will also be discussed with you when the time comes.
- What Makes My Claim Successful?
We work very hard to keep your claim going forward. The difference between having a successful claim and a not-so-successful claim is the cooperation and partnership existing between your attorney and you. There are certain things we require of our clients that allow us to make the best possible claim for you:
1. Be patient! Like everything else in organized society, every step of the Workers’ Compensation claim takes time. From receiving the Notice of Indexing and WCB# back from the Board, to getting the Insurance Carrier to respond to a request, to getting a Decision on a disputed issue, to reaching a degree of maximum medical improvement and every other step of the process. You must understand and believe that we are doing everything we can in order to expedite the process for you and that without our help it would go even slower. Don’t sacrifice the potentially great outcome of your case by becoming frustrated and rushed. There will come a time when it will all be worth it.
2. If you are receiving wage benefits, make sure you go to your doctor every 45 days.
3. Make sure you tell your doctor the exact history of the accident, especially that it is an accident that happened at work, and double check that in his/her report he/she not only states the exact percentage of disability and ability to return to work but also how they relate to the mechanism of the work injury.
4. Make sure you can provide documentation that proves every statement you make related to your claim. You should be able to prove how much you were making, where you were working, and what your doctor’s opinion is.
5. If the Insurance Carrier schedules a visit with an Independent Medical Examiner (IME), make sure you go to that appointment, and, if you choose to, videotape it.
6. If your doctor has told you or has issued a report saying you are not totally disabled, or the Law Judge has issued a Decision that you are only partially disabled, make sure you document a work search for a job within your restrictions and that you make an attempt at vocational rehabilitation.
7. Be truthful and up-front with us! Do not hide the fact that you had a prior accident with the same or similar injuries, or any other accident even if not work-related and even if not resulting in any injuries. Always inform us if you have returned to work in any capacity, whether with the same employer, new employer, full time, part time, volunteer, for barter or exchange, as a favor to a friend, etc. ANYTHING that could be perceived as work or as activities that you reportedly cannot perform should be reported to us if you perform such activities. Remember, the Insurance Carrier may have you under surveillance at any time, and if you say you are totally disabled from work but then perform activities that go against that reality, you could lose your entitlement to benefits.
8. Do not move or change your phone number without notifying us. If you will be out of reach for a prolonged period of time, please let us know.
9. Never talk to anyone about your claim except to your attorney. If the Insurance Carrier contacts you directly your only response should be that you are being represented by an attorney and they should contact us. You should also forward us any documentation that they send you.
10. Remember that despite our best efforts, you are the one in the best position to obtain copies of your medical records and doctor reports. So you should make sure we have all the documentation we need. That includes diagnostic test results, prescription medication you are taking, and any other medically relevant document or information.
11. Understand the system! We can assure you that our reputation has been built on providing a quality work product, but we are legally bound by the system. It is the legislature – not us – who makes the laws, and only they can change it. There will be times when we tell you about rights of the insurance company that you may think are unfair, or that we cannot right a wrong or get a quicker result than the law allows. We cannot make the system move faster than it is legally allowed, but we promise that we will do everything we can to use the quickest legal avenue to avoid unnecessary delays.
12. If you don’t understand something or have a question, ASK! We are here to help you. We want to make this difficult situation easier. You can call us with the same question many times if you don’t understand something, but you should also know that you can rely on anyone from our team for help. If your attorney is not available it probably is because he/she is at a hearing representing other clients. You should feel comfortable talking to the paralegals and legal support teach about your case if you need immediate assistance. The fact that your attorney is unavailable at the time you place your call does not mean he/she is ignoring you.
13. Let us know if you are unhappy! Sometimes dissatisfaction happens because of a simple and correctable misunderstanding. We will work to resolve any issues you have with your case.
- What Should I Do About Bills While My Case Is Being Disputed?
You can file for temporary disability with the state, however, it may take you just as long to get that money too. What you have to do is use your savings if you have any, borrow from family and friends, cut down costs, and seek help from the community (like religion organizations, etc). It’s a tough patch you go through, and it can be overwhelming and frustrating, but you must know that once your claim is accepted you will receive a retroactive payment from the date of the onset of your illness (so long as you have the medical evidence to cover it), so you will be able to replenish your funds, pay back your loans, and go on with your life.
Most clients are concerned about how they pay their bills while recovering. THE INSURANCE COMPANIES RELY ON YOUR NEED TO GET WELL AND GET MONEY! They know you are anxious, may be out of work, and have mounting medical bills. Therefore…
We offer these suggestions:
1. Be up front with your medical providers. Tell them you will be glad to have our office send a letter assuring them of payment at settlement. If you go to a Workers’ Compensation doctor, he/she will already know the drill, and will already know that their bills do not get paid right away for the most part. They still are not allowed to charge you for visits related to the work injury. Making you pay would be illegal.
2. If you are out of work or need financial assistance, this is the time to rely on your family or friends. The insurance company will not advance money to you. You may need to secure a loan. Just remember that it will have to be paid back! Don’t wait until you are in a crisis to know that you are having financial problems. Anticipate the loss of income and plan for it.
3. You would not hesitate to help someone else, so this is the time to let others help you. There are a great number of programs available in your area through churches or governmental agencies, which help people when they find themselves in dire circumstances. Do not be afraid to ask for help!
4. Your attorneys are not allowed to loan you money. We could lose our licenses for this! Please understand that although we sympathize with your situation, and will try to help you in every way that we can, loaning you money is not an option.