Recognizing A Claim
Employees are covered under the New York State Workers Compensation Law for Accidents and Occupational Injuries occurring in and out of the course of a workers’ employment.
An accidental claim under the law is an injury or pathological process that affects an employee as a result of an occurrence at work. To be an accident the occurrence must be unexpected or of a nature that a “common average person” would consider accidental in nature.
Under New York State Law, an employee cannot sue his/her employer for injuries sustained on the job. The injured worker can seek Workers’ Compensation Benefits, however, there are exceptions to that rule and its very case specific.
Also if the injury occurred as the result of a 3rd Party’s negligence not only will you be entitled to Workers’ Compensation benefits but you may be able entitled to commence a Civil Action for damages, pain & suffering etc… against that 3rd Party.
Some claims are more difficult to recognize than others. For example, if an individual were called upon to perform extremely heavy lifting and experienced chest pains as a result, a subsequent heart attack in close proximity happened; the lifting event has been found to be compensable. Remember each claim is different and the facts are a crucial component in determining an occupational injury.
Notice Requirements
Workers’ Compensation law requires that employees give notice of an accident to their employer within 30 days of the accident. Notice to your employer should be in writing, but verbal notice satisfies the requirement as well. It is very important that you articulated exactly what happened (ie): how you got injured, what you injured and where the accident happened.
Statute of Limitations
Workers’ Compensation claims must be filed at the Workers’ Compensation Board within 2 years of the accident.
Note: A C3 must be filed by you!
Basic Benefits
The Workers Compensation Law provides medical care for compensable injuries or conditions. In addition, the law provides for indemnity payments to claimants when they are unable to work or sustain reduced earnings as a result of their disability. A claimant receives two thirds of his or her salary up to the maximum applicable benefit for total disability (which is governed by the date of your accident). Partial disability is determined based upon the claimant’s wages, ability to work and transferable skills.
Workers’ Compensation Rates
For any injury on or after 7/1/21 the maximum rate of compensation is $966.78.
For any injury on or after 7/1/22 the maximum rate of compensation is $1,063.05.
For any injury on or after 7/1/23 the maximum rate of compensation is $1,145.43.
For any injury on or after 7/1/24 the maximum rate of compensation is $1,171.46.
Schedule Loss of Use
If a worker injures a limb/extremity or portion thereof, the law provides when the person has reached maximum medical benefit and further medical treatment will NOT help the condition, the injured worker may be entitled to a monetary award, even if the claimant has not lost a single day from work.
This section of the law also applies to injuries to a workers eyes and loss of hearing. The law provides, however, that prior payments of Workers Compensation and any salary paid to the claimant are deducted from these awards.
The law includes an award for facial scars of up to $20,000. This award is restricted to visible scars about the face and head above the clavical.
Example of a Schedule Loss of Use:
(1) Date of accident: 7/18/10.
Injury to Both Shoulders:
Percentage Loss of use found to each shoulder was 15%:
The award per shoulder (arm) is $34,624.04 x 2 = $69,248.08.
Note: Results vary depending on the date of accident, the extremity injured and the percentage loss of use found per injured extremity. (Each extremity has a different value which is calculated according to the NYS Workers’ Compensation medical guidelines).
(2) Date of accident: 7/18/11.
Injury to Both Hands:
Percentage Loss of use found to each hand is 15%:
The award per hand is $28,290.33 x2 = $56,580.67.
Permanent Disability Awards for Injuries Other Than Extremities/Limbs
If an individual sustains a head, neck, back, lung, heart or other injury or disease that is not one covered by a schedule loss award and has continuing reduced earnings, the payments may go on indefinitely or for a set period of time, depending on the injury and the degree of disability. Injuries to a claimant’s extremities/limb in certain circumstances can be classified as a permanent disability under this section, as well.
Medical Proof of Claim
The law requires that an injured employee only obtain medical treatment from a medical provider coded under the NYS Workers’ Compensation Board. It is the obligation of the claimant to produce medical reports certifying they are disabled at least once every 90 days. When a doctor wants to perform a special test or procedure costing more than $1,000; the doctor may be required get the carrier’s
authorization.
A Medical report must contain:
1) a history of the accident or a history how the occupational disease developed
2) a diagnosis
3) a statement of disability
4) a statement of causality and a signature of the consultant.
The reports should also contain the results of any tests, clinical findings and any requests for special treatment needed.
Note: Under New York State Workers Compensation Law section 13, claimants are not responsible to pay for any medical treatment rendered to them for their compensable injury. If a doctor’s office gives you a bill for medical services rendered to your compensable injury – advise the doctor’s office that it is a workers’ compensation claim and notify your attorney immediately.
Medical providers are given an arbitration procedure to resolve their medical bills not paid by the workers’ compensation carrier.
Note: The carrier has a right to have the injured worker examined by their medical consultant within a reasonable distance from the claimant’s residence.
Carrier Defenses – (Where the carrier attempts to prove your injury is not compensable)
A carrier may raise many types of defenses in a claim. A common defense is the claimant did not give the requisite 30 day notice to the employer or supervisor. A carrier can always object to an award on the basis that the claimant is not disabled, or the disability is not related to the accident or the occupational injury/disease.
A carrier can also argue that the claimant withdrew from the labor market or detached himself from the labor market.
(ie) Claimant who was found to have a partial disability refuses light duty work offered by an employer or the claimant who is found totally disabled has committed fraud. The defenses vary case by case and are very fact specific.
Other Applicable Benefits That May Apply
A claimant may be entitled to other benefits in addition to Workers Compensation. If a claimant is going to be disabled from any substantial employment for a certain period of time or for an indefinite period of time, the claimant may be entitled to Social Security Disability Benefits.
Employees who are employed by a Municipal, County or State Government may also be entitled to receive a disability pension.
Employees who are members of a Union, may be entitled to benefits through their Union.
Claimant’s who wish to be re-trained may be helped through VESID or the Workers’ Compensation Board’s Vocational Training Department.
Lastly, a claimant may have a right to sue a 3 rd Party who is responsible for his or her injury in a Civil Action or if injured at a Construction Site a claimant maybe entitled to a Civil Action under the Labor Law of NYS.
**It is very important to consult with an attorney who has the experience in these areas of law and in the court-room if a claim goes to trial. Injured workers must be educated and must be aware of their legal rights.
