FREQUENTLY ASKED QUESTIONS
1. What is the first thing I should do if I get injured at work?
When you are injured at work you must first seek medical attention IMMEDIATELY and ALWAYS let the doctor know that your injury stems from a workplace accident. Your case is only as strong as your medical reports, so that is the first thing you need to do, especially since you are injured and you need to know what is medically going on with you as soon as possible. The second thing you have to do is notify your employer that you were injured, preferably in writing. And the third thing is to file a C-3 form with the worker's compensation board and retain an attorney to represent you.
2. If I am out of work and not receiving wage benefits, how long will it take for me to start getting paid?
In order to make sure you get paid you or your attorney on your behalf must file a C-3 form with the NY Workers’ Compensation Board. You must do this even if your employer filed a claim on your behalf. Once the Workers’ Compensation Board receives your C-3 it will assemble a file and give you a case number. Then it will review the records. If you are out of work and have produced supporting medical evidence of a work-related disability, the Board will file a notice of indexing. The Insurance Carrier has 25 business days from the date of the filing of the notice of indexing to respond by either accepting your claim and begin making payments to you or disputing your claim. Your attorney can only request a Hearing on your behalf to establish your case and ensure that you are getting paid the correct amount in benefits once either the Carrier replies with their acceptance or rejection, or after the 25 business days from the date of the notice of indexing has elapsed. After making a request for a Hearing, it can take up to 120 days for the Workers’ Compensation Board to give you a Hearing date. The amount of time will depend on how many cases are ahead of you on a first come, first serve basis. This is why it is very important that you file a C-3 form and retain an attorney as quickly as possible. The longer you wait, the longer your claim will be delayed.
3. My doctor is requesting authorization for diagnostic tests/injections/treatment. How long will it be until those are authorized?
Under New York Workers’ Compensation Law, the Carrier has 30 business days to respond to an official request for treatment costing over $1000. An official request for treatment must be made by your doctor with the submission of a C-4Auth form to the Insurance Carrier requesting such treatment. Your doctor does not require authorization for treatments or tests costing less than $1000. If the Carrier does not reply within 30 business days from the date of the C-4Auth request, the treatment being requested is deemed authorized. If the Carrier denies the treatment on the basis of it not being medically necessary or being rendered to a site not established to the claim (meaning a body part that the Carrier is not convinced you injured in the work accident), a Hearing will have to be requested and that issue will have to be litigated. Remember, it can take up to 120 days to get a Hearing date. If your doctor believes that the treatment being requested is an emergency and must be rendered, the doctor may render the treatment without authorization and later fight the insurance company to be compensated on the basis of the emergency of the situation. Under no circumstances should you pay for any medical treatment related to your workers’ compensation claim.
4. My employer is paying me my wages while I am out of work because of my injury, but he is using my vacation days/sick days. Will I ever get those back?
If your employer is paying you wages while you are out of work due to your disability, your employer is entitled to file a reimbursement request with the insurance company. The important thing to know here is that your employer is only going to be entitled to receive the amount that you would be receiving under workers’ compensation had you been receiving compensation instead of your wages. That amount will not be the same as your wages. The amount you are entitled to receive in compensation benefits is determined according to your average weekly wage and your degree of disability, and it is capped at a statutory maximum existent on your date of accident. This means that your employer will likely return to you some – but not all – of your sick/vacation days (the amount of days equivalent to the amount your employer will be receiving). If you run out of sick/vacation days and are still out of work due to your disability, the Carrier should start making payments to you according to your gross average weekly wage, degree of disability and the statutory maximum.
5. Can my employer fire me while I am out on comp?
The short answer is yes, however, this is true not just because of your disability, but rather because like most states, New York is an “employment at will” state, meaning that your employer can terminate you for any reason except the few enumerated discriminatory exceptions. What happens to your position if you are unable to return to work due to a disability will be dependent on your employment agreement with your employer and if no such agreement or employment contract exists, then your employer may terminate you based on the fact that your position cannot be left open. However, and importantly, your employer cannot terminate you in retaliation for you filing a Workers’ Compensation claim. A retaliation claim is very difficult to prove because you would have to show that the sole reason for your termination was the fact that you filed the Workers’ Compensation claim. Remember, despite termination you would still be entitled to wage benefits from that employer’s Carrier for as long as you can demonstrate that you are disabled as a result of that work accident.
6. If my employer terminates me, can I file for unemployment while I am out on workers' comp?
It depends on your degree of disability. In order to file for unemployment you must be ready, willing, and able to work and you must be actively looking for work. If you are claiming total disability from work, you cannot collect unemployment because a totally disabled person is not ready, willing, and able to work. However, if you are claiming to be only partially disabled, you may be able to collect unemployment as long as you demonstrate that your work search is within the medical restrictions set out by your doctor. The total amount you collect on both Workers’ Compensation wage benefits and unemployment combined cannot exceed what you were making at work.
7. If the insurance carrier has accepted my case and is paying me, do I still need a hearing?
Yes. Even though the Carrier has began paying for your wages and/or medical benefits, you still need a hearing to establish your claim and get the Judge to direct payments to prevent the Carrier from arbitrarily suspending payments. If the Carrier is under the Judge’s direction to make payments, the Carrier cannot suspend or modify payments without first requesting a hearing, appearing at the hearing, and being successful on the merits. However, if the Carrier is not under the Judge’s direction, payments can be stopped or modified without fair warning.
8. How long do workers' compensation cases last? When will my claim be resolved?
Your claim is only completely resolved when you reach maximum medical improvement, and even so it may not ever be permanently resolved absent a settlement closing the claim completely. You are entitled to medical benefits for as long as you can demonstrate a need to as a result of the accident, and you are entitled to wage benefits for as long as you can produce medical evidence of an ongoing disability combined with any other legal requirement dependent on your disability level. As a general rule, injuries to extremities (such as knees, elbows, shoulders, legs, arms, feet, hands, etc) do not reach maximum level of medical improvement until at least one year from the date of the accident or date of surgery (whichever is later). Neck and back injuries do not reach maximum level of medical improvement until at least two years from the date of the accident or date of surgery (whichever is later).
9. Can I choose which doctor I go to? How do I know which specialty I need?
You can go to any doctor you want to, so long as that doctor is familiar with the NY Workers’ Compensation Board and is coded by the Board and licensed to practice in NY. The Carrier does not have the right to dictate which doctor you can see, however the Carrier may ask you to be evaluated by an “Independent Medical Examiner” (IME) so they can compare that doctor’s opinion to your doctor’s opinion regarding your disability and the causal relationship of your injury to the history of your work accident. The Carrier is legally entitled to dictate where you can get your diagnostic tests done so long as it is reasonably close to you.
Most injuries would require you to see an Orthopedist/Orthopedic Surgeon. An Orthopedist (“Ortho") specializes in bone injuries. You may also need to see a neurologist if you have nerve damage, and a pain management doctor if you are under too much pain as a result of the accident. For psychological injuries, such as Post-Traumatic Stress Disorder (“PTSD”), you should see a Psychiatrist.
10. I am out of work because of a work injury and my case is being contested so I am not receiving any payments. How am I supposed to survive if I can't work?
This is the most frequently asked question asked by people who have recently suffered a work-related accident. Unfortunately, there is no good answer. The advice attorneys give their clients when they are asked this question is to rely on the help of others, such as family and friends, religious institutions, your community, or anyone willing to help. The Insurance Carrier will usually use up all the time legally given to them before paying you, and they do so because they know that if you get desperate for money you will risk your health in order to work again to pay your bills. Don’t risk your health. Even if you need to secure a loan in order to afford your bills you should probably do that if you are legitimately hurt because eventually you will receive the money you deserve and hopefully will be able to pay your debts.
11. The insurance Carrier scheduled an appointment for me with one of their doctors. Do I have to go?
Yes, you do. That notice, which should have come in a form labeled “IME-5” is an IME notice, or Independent Medical Examination. The Carrier can request that you see an IME so that they can get a second opinion regarding your doctor’s medical evaluation of your condition. Although these IMEs are supposed to be independent, in reality they represent the interests of the insurance companies and will most likely not know much about your case, or even examine you thoroughly. Independent of how awful that examination goes, the Carrier has the right to rely on their IME’s opinion and if that opinion is different than that of your doctors’, your attorney will have to depose both doctors in order to demonstrate that your doctor is the more credible one. Until the Judge makes a final decision regarding which medical opinion best reflects your current situation, the Carrier can pay you according to the IME’s opinion. If the IME says you are not disabled at all, that will mean you will not receive benefits until the Judge rules otherwise.