Workers’ Compensation

WORKERS’ COMPENSATION

            The Workers’ Compensation Law was passed by the New York State Legislature in 1914 as a compromise between employee and employer interests.  As part of the compromise, employees gave up their right to sue their employers for negligence resulting in injury.  In return, employees would receive payment from workers’ compensation without regard to fault as long as the accident or injury was related to work.

WHAT IS COVERED . . .

            To receive workers’ compensation benefits, an employee must prove that there was an accident in the course of the employment, that the employer was notified, and that the injury and disability were caused by the accident.  A claim for an accident must be filed with the Workers’ Compensation Board within two years of the accident, unless the failure to file is excused for certain limited reasons.

            Occupational diseases are also covered by workers’ compensation.  An occupational disease is a condition that develops over a period of time because of the type of work a person does.  For example, a person who performs a data entry job may develop a problem with their hands or wrists.  If a doctor feels that the cause of the problem is the person’s job, involving repetitive use of the hands, this may qualify as an occupational disease under the law.

AMOUNT OF WORKERS’ COMPENSATION . . .

            The amount of compensation that an injured employee may receive while out of work depends on two things.  One is average weekly wage.  The most that an employee can receive in workers’ compensation is two-thirds of his/her average weekly wage up to the maximum compensation rate for the date of accident.  If you were injured before July 1, 2007, your maximum compensation rate is $400 per week.  For accident dates between July 1, 2007 and June 30, 2008, the maximum benefit rate is $500 per week.  For accidents between July 1, 2008 and June 30, 2009 the maximum benefit is $550/week.  For accidents between July 1, 2009 and June 30, 2010 the maximum benefit is $600/week.  For accidents between July 1, 2010 and June 30, 2011 the maximum benefit is $739.83 per week.  For accidents after July 1, 2011, the maximum benefit is $772.96, and it is be adjusted annually on July 1 by the Commissioner of Labor.

           The amount of compensation to which a person may be entitled also depends on his or her degree of disability.  A person may be either totally or partially disabled. Total disability is an inability to do any kind of work whatsoever.  Partial disability means that a person can do some type of work, even if they cannot do the type of work they were doing at the time of the accident.  For example, a concert pianist who loses a finger may be totally disabled from his work as a musician, but is only considered partially disabled because he still has the ability to do other kinds of work.

            A person who is partially disabled may receive compensation in an amount less than the maximum rate.  There are different degrees of partial disability, and the precise rate to which a person is entitled depends on the degree of their disability.  There are also different time periods that permanent partial disability benefits are available which depend on the degree of disability.

            Once a compensation case is accepted by the insurance company established by the Compensation Board, medical expenses related to the accident are covered.  Only doctors and chiropractors who are coded by the Workers’ Compensation Board may treat compensation patients.  Doctors and chiropractors are not permitted to bill a compensation patient directly but must send their bills and reports to the insurance company and the Workers’ Compensation Board.  If there is a dispute regarding a medical bill, the insurance company must file a form with the Compensation Board advising it of the dispute.  The bill will then be addressed at a hearing or sent to arbitration, but while it is pending the health care provider must wait to be paid.

As of December 1, 2010, medical tests and treatment are covered by the Workers’ Compensation Board’s Medical Treatment Guidelines.  The Guidelines pre-approve many tests and treatments, but limit others.  In most cases, even if a test is approved under the Guidelines, the insurance company can require you to use a facility they choose to have the test performed.  Your doctor can ask the Board to approve treatment outside the Guidelines through the variance process. 

WHAT A WORKERS’ COMPENSATION CLIENT SHOULD DO . . .

-           If your disability prevents you from working, you must see a doctor at least once every six weeks.  The doctor must then file C-4.2 forms certifying that you are disabled.  The insurance company does not have to pay you for any time period in which you do not have medical proof of disability.

-           You should keep track of your out-of-pocket expenses.  You are entitled to be reimbursed for prescriptions, bandages, and similar items.  You are also entitled to be reimbursed for mileage for travel to and from doctors, therapists, etc.

-           If your injury involves an arm, leg, hand, foot, fingers, toes, hearing loss, vision loss, or facial scar you may be entitled to a money award even if you do not miss time from work.  It is unlikely that either the insurance company or the Workers’ Compensation Board will take steps to make sure that you receive your award.  You should consult Grey & Grey to make certain that you receive your proper award.

-           If you return to work after an accident and you are making less money due to your disability, you must continue to see the doctor on a regular basis and you must keep a careful record of your earnings.  You should keep all of your pay stubs in an envelope and make extra copies of your tax documents.  You may be entitled to workers’ compensation benefits for the loss of earnings.

-           HOWEVER, YOU MUST NOTIFY THE INSURANCE COMPANY AND GREY & GREY IF YOU RETURN TO ANY KIND OF WORK FOR ANY PERIOD OF TIME AFTER AN ACCIDENT.  FAILURE TO REPORT WORK WHILE COLLECTING WORKERS’ COMPENSATION BENEFITS IS ILLEGAL AND MAY RESULT IN LOSS OF WORKERS’ COMPENSATION BENEFITS AND CRIMINAL PROSECUTION.

-           Insurance companies often send out questionnaires, rehabilitation nurses, and investigators to ask questions and interfere with medical treatment.  You may fill out these questionnaires and speak to these individuals only to confirm your address and your work status.  You should tell them that you are represented by Grey & Grey and to contact our office if they want any other information.  (We will probably tell them that they are not entitled to any other information).

-           Whenever the Workers’ Compensation Board schedules a hearing in your case you must bring an up-to-date medical report with you to the hearing.

-           If you are out of work for more than six months, you should call our office to find out if you are eligible for Social Security Disability benefits.

-           If your doctor feels you can do some work, even if you cannot return to your own job, you must look for work to protect your compensation benefits.  The best way to do this is to call VESID for retraining or go to a One-Stop Career Center operated by the Department of Labor.

WHAT GREY & GREY DOES . . .

-           We will provide you with all the forms you need to file your claim, and we will file the claim for you after the paperwork is complete.

-           The insurance company is not defenseless.  It can and often will arrange examinations with medical consultants to obtain opinions about whether you are disabled or need medical treatment.  After such an exam, you may be notified that your payments have been suspended or reduced or that the insurance company is denying further medical treatment.  If you let us know that this is happening, we will request a hearing for you.

-           When the Compensation Board schedules a hearing in your case, we will appear on your behalf and present your claim to the Judge.  You should also be present in case questions come up that we need you to answer.

-           Not all problems can be resolved at a regular hearing.  Sometimes a trial or deposition testimony is needed from you, the doctors, or other witnesses.  If a trial is necessary, we will try your case to the best of our ability and take whatever testimony is needed to help you win your case.

-           We want to obtain the best possible result for you in your workers’ compensation claim.  We will track your claim from beginning to end, explain your rights under the law and what is needed to win your case, and work with you to get the necessary documents or evidence.  Our goal is for you to receive the benefits to which you are entitled.

For more information, contact us.

Man with back pain image from: http://www.freedigitalphotos.net/images/view_photog.php?photogid=987
Doctor image from: http://www.freedigitalphotos.net/images/view_photog.php?photogid=4096