- Third-Party Negligence Claims
- Legislative Intent
- Claim Filing
- Disability Classifications
- Workers Compensation & Social Security Benefits
- Workers Compensation & Unemployment Benefits
- Death Benefits
- Reduced Earnings
- Vocational rehabilitation & Social Workers
New York State Workers Compensation
Workers Compensation Law is not like any other law, as fault does not matter. Its fundamental principle is to help remedy the wrongs of an on-the-job injury, regardless of fault. Workers’ compensation provides for weekly cash benefits and for medical and rehabilitation cost for injured workers. It also provides payments for qualified dependents of a worker that dies from a worker’s compensation.
“Can I sue my employer for my injuries?”
In most cases, the answer to this question is “NO”. Employees gave up the right to sue employers for their injuries in exchange for the statutory right to receive workers’ compensation benefits, regardless of fault. Most employers are required by law to provide employees with workers’ compensation insurance and in exchange for provided that insurance, employers are protected from being sued.
Third-Party Negligence Claims
Although most injured workers are only entitled to workers compensation benefits, some may also have a “third party” claim. For example, if you are a sales person traveling to a call and you are injured in a motor vehicle accident that is not your fault, you can bring a personal injury claim against the driver, assuming said driver is not your employer or more a co-employee. Other examples of “third-party” claims are medical malpractice claims, general contractor claims, products liability claims etc.
Workers’ compensation was established by the New York State Legislature in 1914, resulting from an agreement between labor and management to provide timely payment of lost wage benefits and medical benefits to injured workers. The Legislature wanted to create a system to protect injured workers by delivering wage and medical benefits in an equitable and efficient manner, while reducing time-consuming bureaucratic delays. The goal in every workers compensation case handled by Peter M. Cordovano, P.C is patterned after the legislative intent to maximize a client’s lost wage benefit while out of work, and to get medical treatment authorized as quickly as possible.
Every on-the-job accident and/or injury should be immediately reported to your employer. If you are injured you should see a doctor. Only injuries and diseases identified by your doctor as being work related will be covered under workers’ compensation. If your doctor decides you can immediately return to work, you should sill file a claim since there are strict time limits filing such claims and no one knows what the future will bring.
Worker’s compensation benefits are never as high as your wages. You should go back to work as soon as you are able. If you return to work or perform any work activity while claiming workers compensation benefits you’ll need to immediately advise your employers insurance carrier and the New York State Workers Compensation Board to avoid an overpayment or more importantly, allegations of fraud. Most injured workers are not entitled to receive any monies for pain and suffering as these are elements of damage reserved for personal injury cases (see below: “Third Party Negligence Claims”)
An Employer may not fire you or hold it against you if you file workers’ compensation claim. You’re also protected from retaliation for testifying in workers’ compensation case. Employers may not discriminate against you in hiring too. You have two years to make a discrimination complaint. File For DC-120 with the Board. You can call the Board office for the form, or find it at www.ny.gov and click Forms. If the Board finds that a worker was improperly fired, it will order the employee restored. The employee will also receive back pay lost by that discrimination.
Your doctor will state how much your injury disables you. The insurer may disagree with that judgment. That insurer can require you to see a doctor it chooses for an independent medical exam. The Board will decide how disabled you are (the degree of disability) from among those opinions. Your lost wage benefits is based on degree of disability. There are four classes.
Temporary Total Disability: You cannot work and earn wages, but only on a temporary basis. You’re entitled to the full allowable wage benefit.
Temporary Partial Disability: You’ve temporarily lost some ability to work and ear full wages. You’ll receive a percentage of your salary equal to the percentage of disability. For example, if you’re 25% disabled, you’ll get 25% of your award, for the time you’re disabled.
NOTE: All injuries, even those later found permanent are first temporary. All benefits are also subject to the maximum weekly amount.
Permanent Total Disability: You completely lost the ability to work and ear wages. There’s no limit on the number of weeks of benefits.
Permanents Partial Disability, Nonscheduled Loss: You lost some part of your ability to work. If you were injured before March 13, 2007, you can get benefits as long as the disability result in wage loss. Injures after then may receive up to 10 years of benefits, as show below. (you can apply you’re reclassification, and additional benefits, after that period.) Even if the disability doesn’t impact wages, medical care is always paid.
Permanent Partial Disability, Schedule Loss: This category involves loss of arm, hand, finger, leg, foot, toe or their use, and loss of eyesight or hearing. The law specifies the number of weeks in benefits you receive for this loss.
Disfigurement: People whose faces, head or neck are permanently disfigured may get up to $20,000 depending upon the extent of injury and date of accident.
Workers Compensation & Social Security Benefits
Injured people with functionally significant long-term disability(s) may also look to the Social Security Administration for relief (SSDI/SSI) as well as workers’ compensation. To be eligible, an injured person must be totally disabled (i.e. unable to engage in any substation gainful activity by reason of medically determined mental or physical impairment.) Moreover, this condition(s) must have lasted, or be expected to last, for a continuous period of at least 12 months.
Timely filing for Social Security benefits is imperative, as delay may terminate your “insured status”, a term utilized by the Social Security Administration to determine if someone has at least twenty (20) credits during a forty (40) quarter period, ending with the quarter in which the individual is determined to be disabled.
NOTE: In analyzing your compensation claim, the disability in question must be related to the injury being claimed. By comparison, Social Security disability cases take into account all impairments, from whatever source, in considering a persons’ overall disability.
Workers Compensation & Unemployment Benefits
A “totally disabled” injured worker may not receive workers compensation benefits and unemployment benefits at the same time. However, a “partially disabled” injured worker may. If a person is receiving unemployment in addition to receiving workers compensation due to their partial disability, they must participate in reemployment services, such as job search assistance services (Labor Law 591) (an issue further discussed in this memo). Application or receipt of unemployment benefits is not determinative of any attachment to the labor market. What is required is documentary evidence of a claimant’s active participation in one of the Department of Labor’s reemployment services.
There is a benefit for the family of workers who die from an injury or illness suffered on the job. The benefit is payable whether the worker dies right after an injury or later.
The worker’s spouse and children will receive two-thirds of the employee’s average weekly wage, up to the weekly maximum amount. The spouse and children share the weekly benefit; they do not each receive the full benefit. Children receive he benefit until age 18 or until 23 if they attend college. If a child is blind or physically disabled, he or she will receive the benefit for life. The spouse receives the benefit until remarriage. If the spouse remarries, he or she gets a final payment equal to the two years of benefits.
The benefit is payable firs to a spouse and minor children or dependent grandchildren. If there are no other dependents, then a different benefit is paid. The surviving parents or the deceased worker’s estate may be entitled to $50,000. Funeral expenses may also be paid. That benefit is up to $6,000 in metropolitan New York counties, and up to $5,000 in all others.
Sometimes claimants return to employment, although they continue to be disabled as a result of their compensation injury. If the return to work is for less money than someone was making at the time they were injured, whether they return to their previous employment or alternate employment, it is possible to also receive a workers compensation benefit. This is knows as a “reduced earnings claim”.
To put forth a reduced earning claim, the following criteria must be met before the Board:
- Presentment of medical documentation, evidencing your ongoing disability causally related to the compensable event; and
- Obtaining a job that is less physically taxing than their previous employment; and
- Your doctor reviewing the duties and responsibilities of the new job, and releasing you to the job within restrictions the doctor has set; and
- A reduction in your average weekly wage, compared to the established before Board, directly related to your ongoing casually related disability.
If you should return to work with a new employer, and reduced earnings claim is made, the compensation carrier will most likely contact your new employer directly to ascertain your earnings and wage information.
Workers’ Compensation fraud occurs when someone knowingly, with intent to defraud, makes a false, material statement to obtain or deny a benefit. Employee Fraud occurs when an employee knowingly, either verbally or in writing, lies about, or causes another to lie about, a material fact for the purpose of obtaining workers’ compensation benefits to which he or she is not entitled. An inadvertent or unintentional misstatement is not fraud. The lie must be made for the purpose of obtaining or denying benefits, and important enough to impact the benefits.
Examples of Employees fraud may include filing a claim for an injury that did not occur on or has no relation to the job, and/or lying about work status when questioned directly such as at a deposition or a hearing, while receiving temporary disability benefits. New legislation imposes tough criminal penalties for workers compensation fraud by making such crimes a Class E felony. Punishable by fines and/or prison time (Board PublicationP-60 10/97).
If you have returned to work, you are under an obligation to advise the Board and to the compensation carrier accordingly. Work is not simply defined as just employment, or the rendering of services for money. Work is also defined as efforts in any capacity such as a barter system, babysitting, having helped out a friend or association, owning or running a business, buying and selling merchandise on eBay, volunteer activities, activities in your own business, a family members business or even just “hanging out” or spending time at a place of business.
Vocational Rehabilitants & Social Workers
In many states, injured workers who cannot return to their former employment are entitled to vocation rehabilitation. VESID is a NYS agency that can retrain eligible individuals for suitable employment considering their physical disabilities & past relevant work history. Prior authorization from the Worker’s compensation board, applicable carrier, or anyone else is not necessary to apply for these services. Rehabilitation services help people return to work, and to lead full and active lives.
Specific services are explained below
Vocational rehabilitation help people whose disability prevents them from returning their usual job. Counselors help injured workers find employment that fits their abilities. They also help develop a plan to return to work. This may include vacation counseling’s and referrals for training and selective job placement. New York State Adult Career and Continuing Education Services-Vocation Rehabilitation (ACCES_VR) coordinates employment and independent living services that may be needed by persons with disabilities through their lives. Social workers assist people when family or financial problems interfere with their returning to work. Social workers help people cope with their disability and discuss their concerns about rehabilitation. They can also help workers prepare to return o work. The board has counselors, social workers and claims examiners who coordinate and monitor other services. If they could benefit from these services, contact the Board.