New York Workers' Compensation Claims/FAQ
Q. What should I do if I am injured during the course of my employment?
A. You must notify your employer that you had an accident. The law requires it to be in writing and should be done within 30 days of the injury. However, if you are taken by ambulance or the employer was otherwise aware of your accident, the writing requirement will at times be excused. If you develop an occupational disease or condition, then you must notify your employer when you learn of that condition.
Seek medical care immediately. You should do this even if you do not believe the injury or condition is that bad. If you do not seek medical care, and your condition gets worse, it may be difficult to prove you injured yourself.
Even after notifying your employer and seeking medical care, you need to file an Employee Claim form (C-3) with the Workers' Compensation Board. The Workers' Compensation Board is the New York State agency that will handle all matters related to your claim and decide what benefits you are entitled to, if any.
Q. How do I file a claim?
A. After you have notified your employer in writing of your accident, injury, or occupational disease, you must file an Employee Claim form (C-3) with the Workers' Compensation Board as soon as possible. If a claim is not filed within two years from the date of the injury or notice of an occupational disease, you may lose your right to benefits.
Q: How much can my attorney charge me and how does the attorney get paid?
A. All attorney fees must be approved by a Workers' Compensation Law Judge. Although there are no rigid rules, fees fall within certain parameters. All fees are paid to an attorney out of the money that would otherwise come to you.
Q. Is it important that I notify my employer of an accident or injury as soon as possible?
A. Yes. You should notify an employer in writing within 30 days of the accident, injury or claimed occupational disease. If you do not do so within 30 days, the employer may seek to assert an "untimely notice" defense.
Q. Are all disabilities covered under Workers' Compensation Law?
A. No. Only those disabilities that are causally related to an accidental injury "arising out of and in the course of the employment," or to an occupational disease, are compensable.
Q. How is the weekly cash benefit for temporary total disability determined?
A. The weekly cash benefit for temporary total disability is two-thirds of your average weekly wage for one year immediately preceding the accident. Legal maximum exists depending on the date of the injury.
Q. How is my average weekly wage determined?
A. Average weekly wage (AWW) is generally determined by looking back over the year prior to the date you became injured. The law provides a number of formulas to be used under particular circumstances. If you have not worked for the employer for at least one year at the time of your injury, the law specifies how average weekly wage is to be determined.
Your average weekly wage may be increased if you were working two or more jobs at the time that you were injured. This is called "concurrent employment." It is important for you to tell your lawyer about any other jobs you had at the time that you got hurt on the job.
Your average weekly wage can be increased if you were under the age of 25 when you got hurt and you are found to have a permanent disability.
Q. What determines the amount of money that I receive each week in compensation benefits?
A. The amount you receive in compensation benefits is limited to two-thirds of your average weekly wage up to the maximum amount set by law. This amount is payable if you are totally disabled from any and all work. If you are capable of performing some type of work, even if it is not the type of work that you were doing when you became injured, you will be considered partially disabled and will be entitled to an amount less than two-thirds of your average weekly wage.
If you are not working, the amount you receive depends on the degree of disability as estimated by medical doctors or chiropractors. The degree of disability is a major area of dispute in compensation cases because insurance company doctors tend to minimize the degree of disability. This is an issue where a lawyer may provide particular assistance.
If you return to work at a lesser paying job because your on-the-job injury prevents you from returning to your regular job, you still are able to receive workers' compensation benefits. The amount that you receive is often established at a hearing before a WC Law Judge and is determined by comparing the amount you earned before you got injured to the amount you earn after your return to work.
Q. Is medical care provided in the case of any accidental injury even when no claim is made for weekly cash benefits?
A. Yes. If medical care is necessary, it will be provided even though there has been no lost time from work and no cash benefits paid.
Q. When must a physician request advance authorization for medical care?
A. The law requires a physician to request prior authorization for specialist consultations, surgical procedures, physiotherapeutic procedures, X-rays or special diagnostic laboratory tests costing more than $1,000.
Q. How often should I go see my doctor?
A. If you remain out of work, you should see your doctor at least every 45 days, preferably once a month. If you do not go see your doctor regularly, benefits may be stopped for lack of medical evidence of disability.
If a formal finding has been made by the Workers' Compensation Board that your disability is permanent, you no longer have to see your doctor on a regular basis in order to prove ongoing disability.
Q. When should I start looking for work?
A. You should start looking for work as soon as your doctor finds you to be capable of performing full duty or light duty work. You should do this even if your employer cannot provide a job. If you are partially disabled and you do not look for work, the insurance company may seek to cut off your benefits by arguing that because you are not looking for work, you have voluntarily removed yourself from the labor market and are not entitled to benefits. Recent law from the courts and the Workers' Compensation Board describes the sorts of things a claimant must do in this situation to avoid a suspension of benefits. This is an area which insurance companies pursue aggressively, and where a lawyer may be of particular help.
Q. When can the insurance company cut my benefits?
A. If you have not been to a hearing and there is no direction issued by a Workers' Compensation Board to continue payments at a certain weekly rate, the carrier may cut benefits whenever its own doctor's estimate of the degree of your disability justifies a lower rate.
If a Workers' Compensation Law Judge has directed payments to continue at a certain rate, the insurance company must file an application to reduce benefits unless you have returned to work at wages equal to or more than your average weekly wage, or your own doctor has issued an opinion on the degree of disability which justifies a lesser rate.
Q. What is a Schedule Loss of Use Award?
A. This is an award that is issued by the WC Law Judge that determines the amount of loss of use you have to the injured body part (usually limbs, fingers or toes, but also vision or hearing loss). This percentage is determined by medical evidence, such as treating doctors' report and reports of examining doctors. This award is paid at your total disability rate.
Q. Can I work and still receive workers' compensation benefits?
A. Yes, but returning to work affects the amount that you are entitled to receive. It is important to tell your attorney and the insurance company that you have returned to work.
Q. Can I receive a settlement from the workers' compensation insurance carrier for my injuries?
A. If your on-the-job accident results in a permanent injury, you may be entitled to a settlement. The amount of settlement and method of determining and approving the settlement depends on the specific facts of your injury and claim.
Q. Do I have to submit to a medical examination when requested to do so by the employer or insurance carrier?
A. Yes. The employer or insurance carrier is entitled to have you examined by a qualified physician or chiropractor at a time and place that is convenient to you. Refusal to submit to an exam may affect your benefits, and may serve as the basis for the insurance company to stop your payments.
Q: What is workers' compensation fraud?
A. Workers' compensation fraud is a knowing misstatement of fact for the purpose of obtaining compensation benefits. This may be found if a claimant misrepresents the occurrence of an injury, fails to report employment, work or work activity, or fails to reveal prior medical treatment or injuries to the insurance company's examining doctor or to the claimant's own doctor. If you are found to have committed workers' compensation fraud, the Workers' Compensation Law Judge can impose a limited period of suspension or permanently disqualify you from obtaining lost wage benefits on the claim. Medical benefits will not be suspended. You can also be arrested and charged with criminal fraud. Fines, restitution and imprisonment can be ordered.
Q. Can I receive an award for a disfiguring injury?
A. Yes, if the disfigurement is serious to the head, face, or extends partially into the neck. Such an award is made at a hearing when the Workers' Compensation Law Judge personally views and assesses the disfigurement.