WORKER’S COMPENSATION FREQUENTLY ASKED QUESTIONS
Workers’ Comp provides for two types of benefits: medical care and payments for a percentage of wages lost due to your injury. You are entitled to have your medical expenses related to the injury covered whether or not the doctor keeps you off from work. If ongoing medical care is required throughout your lifetime, this should also be covered. The second benefit accorded under workers’ compensation is wage replacement, or the payment of a portion of lost wages. The calculation is made based on your average weekly wage. The typical compensation is 2/3 of the average weekly wage.
Provided your workers’ compensation claim is not disputed, you should receive your first check for lost wages within 18 days of your disability or no later than 10 days after you filed notice of your injury with your employer, whichever is later.
Workers’ compensation does not provide any financial settlement for pain and suffering. If your injury was in part the result of the negligence or wrongdoing of a third party, you may be able to ask for damages for pain and suffering in a separate lawsuit. Third party claims are unusual, but they can result in verdicts reaching into the millions.
Let’s put it this way: Employers don’t always do the right thing, and the bureaucratic processes don’t help. Workers Comp Advocates will stand by your side, dealing with the paperwork and answering questions.
Yes, you can file a claim for workers’ comp and Social Security Disability Insurance (SSDI) benefits simultaneously. However, you’ll be approved for Social Security disability benefits only if your impairment is severe and is expected to last a year or more, preventing you from doing any kind of substantial work. The Social Security Administration may lower your disability payments by the amount of your workers’ compensation benefits, taking an “offset.”
An individual seeking both types of benefits may gain advantage from the input of a workers’ compensation advocate, since timing issues regarding an SSDI claim can, in some cases, affect a workers’ comp claim. Consider choosing an advocate who can handle both types of claims.
Your workers’ compensation benefits are based on the medical evidence in your case and how long your state’s workers’ compensation law allows you to receive those benefits.Let’s say that you’re on temporary total disability and that your doctors and the insurer’s doctor, agree that you will be totally disabled for another two years, and that you will be then fully recovered from your injury with no permanent issues.You would entitled to another two years of temporary total disability benefits, so it wouldn’t make sense to lump sum settle your case for less than two years of temporary total disability benefits unless you really need the money in a lump sum now. Even then, if you have an advocate, it might not make much sense to settle the case at all because the fees will come out of the settlement.
Now let’s change the above scenario. Let’s say that the insurer’s doctor thinks that you can return to work now, and you have a hearing coming up next week in which your benefits might be terminated.
Now, your future entitlement to benefits could be anywhere from one week to two more years of weekly compensation. Let’s also say that you and your advocate agree that the insurer’s doctor’s opinion is stronger than your own doctor’s opinion. In that case, it is more likely than not that you will only get another week of benefits, and so you would want to settle your case before the hearing for an amount that reflects your likelihood of having your benefits terminated at the hearing next week.
Estimating the value of a settlement is more complicated if you are on permanent total disability because your weekly benefits might continue for decades. Thus, estimating the settlement value has to take into account the present value of your future entitlement to benefits. Present value is a financial concept that involves determining the value of a future stream of income (i.e., future weekly workers’ compensation benefits) as if it were all in a bank account today. In other words, how much money does the insurance company need in a bank account today in order to pay you weekly benefits for, say, the next 20 years? This is a complex financial calculation. You should not consider settling your case without speaking with a workers’ compensation advocate.
The Workers’ Compensation Board and other agencies offer vocational rehabilitation to workers who are able to continue in the workforce but need assistance transitioning to a new type of employment. For workers with more than a 50% scheduled loss of use, vocational rehabilitation is required. It is voluntary for other workers.
If the Workers’ Compensation Board determines you have a permanent, partial disability, your benefits will be based on your level of disability. It does not matter if you are unable to find a job—only that they consider you capable of working at some level. You must continue to search for work that you are able to do. If you do not make a good faith effort to return to work, you could lose your benefits. We recommend you maintain a complete record of the dates and companies where you have applied for work.
In New York there four services can help workers return to the workforce:
1. Vocational rehabilitation programs help the worker determine what new types of jobs would be appropriate given his or her level of disability.
2. Selective placement provides help to those with permanent disabilities whose injuries restrict the types of jobs they are capable of doing.
3. Medical rehabilitation must be recommended by your doctor. This includes occupational therapy to help you improve muscle condition for maximum usefulness.
4. Social Services is also available to offer assistance to the worker and his or her family in dealing with issues that may interfere with reintegrating into the workforce. This may include things like providing help in applying for food stamps, working with landlords and utility companies to deal with past due bills, etc.
Other resources may be available to help in finding a new job or securing additional assistance. Many employers have a Return to Work program to help transition their employees into new roles, when necessary. If your employer does not have a position that you are able to do, New York State Career Services, New York City Workforce1 Career Centers, or CareerOneStop offer job search assistance.
In most cases in New York, you cannot sue your employer if you are injured on the job. Workers’ compensation is what is known as an “exclusive remedy,” meaning this is the only option you have to recover for your injuries – unless someone else or some other entity other than your employer caused your injuries. If this is the case, you may sue the person or entity who caused your injuries and still collect workers’ compensation benefits as part of a third party claim. There are a few exceptions to this: If your employer failed to provide workers’ compensation insurance you have the option to file suit against your employer. In addition, if you can prove your employer deliberately caused your injuries, you may also be able to file suit against your employer. Your advocate can advise you on these matters.
When most people think of workers’ compensation, they think about on-the-job accidents. This might include slip and fall injuries, injuries related to equipment or machinery, or being involved in a car crash while making a delivery for your boss. Workers’ compensation also covers occupational diseases and repetitive stress injuries. Occupational diseases like lung disease may occur after long-term exposure to dangerous substances like silica or asbestos; a loss of hearing from daily exposure to loud noises in your work environment may also qualify. Repetitive injuries can occur when workers perform the same task day in and out; common repetitive stress injuries include carpal tunnel syndrome, and chronic back, shoulder or knee problems that occur from many years of doing the same job. These chronic injuries can cause a lot of pain and prevent you from doing your job. No one is required to work in pain.
Almost all employers in New York are required to provide workers’ compensation. Independent sub-contractors are considered self-employed and would not be eligible under the hiring company’s coverage.
Most employers understand that accidents happen and this is why they carry workers’ compensation insurance. However, many employers will try to prevent you from filing a claim for workers’ compensation benefits. They may even tell you that you only had 24 hours to file your claim. Not true! Other employers will tell you to just file the claim under your health insurance. Don’t do it. Tell the truth. While your employer is not required to hold your job open while you are out on leave, most employers work hard to bring employees back on board after an injury.
You have protection under federal law with the Family and Medical Leave Act (FMLA). If your injury results in permanent partial disability such that you are able to work but not able to do your prior job, your employer will probably work with you to place you in a different position. It is against the law to retaliate against an employee for filing a workers’ compensation claim. If your employer tries to prevent you from filing a workers’ compensation claim, call Workers Comp Advocates immediately.
If you do have out-of-pocket expenses like prescription drugs, for example, submit them to your employer or the insurance company for reimbursement. Remember to keep copies of all documentation. If these expenses are not reimbursed, make sure the Workers’ Compensation Law Judge knows you have not been reimbursed.
If your work injury results in visible scars to your head, neck or face, you are entitled to a special award.
You do have the right to refuse treatment, such as surgery, but you must continue to see a doctor every 45 days to be eligible for wage benefits. The Workers’ Compensation Board understands that surgery often involves very serious risks, which may include infection, coma, paralysis and even death. No one is required to have surgery in order to continue to receive benefits for lost wages as long as they continue to see their doctor.
Your case may be scheduled for a hearing before a Workers’ Compensation Law Judge.
In most cases after your injury, there is a presumption that you will go through medical treatment and will fully recover and return to work. If after you reach Maximum Medical Improvement you are unable to do any type of work, even part-time or limited duty, you will be considered permanently, totally disabled. Workers’ compensation payments will continue for the remainder of your life. In addition, you will be eligible for continued medical care for the rest of your life, including transportation costs to and from doctor’s visits and the costs of prescription medicines. If at some point in the future you are able to return to work, your case would be reviewed to determine whether benefits would end or be reduced.
If your situation results in a permanent, partial disability – meaning that you are able to do some type of work, even if it is part-time or a different type of job than you did before – then a medical impairment rating will be assigned to your case. This rating will become a factor in determining your benefit payment amount as well as the length of time you will be entitled to receive benefits (note that for injuries that happened prior to March 13, 2007, permanent partial disability payments may continue for life). Again, you are eligible to receive medical care for your injury throughout your lifetime.
In 2011, the most recent report available, over 7% of claims were disputed. Disputes may arise due to disagreements over the average weekly wage, employment status, the extent of your injury or other reasons. When a claim is disputed by the employer or the workers’ compensation insurer, your benefits will be delayed until the dispute is resolved. An experienced advocate may be able to expedite your case.
Under normal circumstances, you are eligible for care related to your injury for the rest of your life. You should give your doctor a copy of your workers’ compensation hearing notice and he or she can file Form C-27 to reopen your claim. If your condition worsens, you have 18 years from the date of injury to file for additional monetary benefits. Keep copies of all paperwork relating to your claim in the event they are needed at a later date.