Under New York workers’ compensation, you’re considered disabled whenever your injuries make returning to your usual job impossible.
There are four classes of disability, and each class impacts how you receive benefits and for how long.
Temporary Total Disability
Temporary total disability covers times when you are injured to the point where you cannot work and earn wages but are expected to return to work. Most workers’ compensation cases are temporary total disability cases.
Even if you are disabled for life, your disability will be classified as a “temporary” total disability at first. Later, your doctor may find your disabilities to be permanent.
You’re given the full wage benefit while you are recovering, capped by the weekly maximum.
Temporary Partial Disability
Temporary partial disability covers times when you are injured enough that your work is hampered, but you can still perform some duties. It also covers times when you earn less wages due to your reduced ability to work.
The percentage of your disability is calculated into your weekly benefit, and you receive a smaller weekly benefit than you would if you were totally disabled.
Permanent Total Disability
Permanent total disability covers times when your wage-earning capacity is lost for good. This payout can be given for life.
As you might imagine, insurance companies often resist allowing someone to claim permanent total disability, even when the claim is 100% fair. Many who are facing total disability will need help from a qualified workers’ compensation attorney.
Permanent Partial Disability
This classification of disability covers instances where only a portion of your wage-earning capacity has been permanently lost, based on the body part affected. You may earn Scheduled Loss of Use benefits for extremities or non-schedule losses for losing the capacity of your spine, pelvis, lungs, heart, or brain.
These benefits are payable for a certain number of weeks based on the loss percentage. Often, the benefits are paid out as a lump sum.
Insurance companies will often push back on these benefits, too, and will often claim your loss percentage is much lower than it actually is. In such cases, you’d need a firm like ours to help you maximize your award.
Get Help Today
Workers’ compensation law is extremely complex. And while you might hope and expect that both your employer and the workers’ compensation company would do the right thing and support you, the truth is often quite a bit darker.
If you need help, don’t hesitate to call us. Contact us to schedule a free consultation today.
See also:
What is the Difference Between Temporary and Permanent Disability in a NY Workers’ Comp Case?
What Are Your Rights After You Return to Work After a New York Workers’ Comp Claim
Types of New York Workers’ Compensation Benefits
Workers’ compensation includes a series of benefits to compensate employees injured on the job. Understanding the different benefits can help you understand how workers’ compensation works.
Here’s what you need to know.
Health Care Benefits
Workers’ compensation pays 100% of the cost of medical and dental care related to your work injuries. These bills include pharmacy bills, surgical bills, emergency care, follow-up care, and assistive devices.
The only catch is that all care save for emergency care must be given by a health care provider authorized by the Workers’ Compensation Board.
Never pay your health provider for any treatment you receive for work-related injuries or illnesses. You should keep receipts for travel expenses related to your injury, including mileage, public transportation, or other expenses incurred for treatment.
Schedule Loss Benefits
A Schedule Loss of Use Award (SLU) is an additional cash payment to compensate individuals who have permanently lost the use of their eyesight, hearing, or any extremity. Compensation is paid for a specific number of weeks based on the body part and the severity of the disability, minus any temporary benefits paid.
You are only eligible for schedule loss benefits after you reach maximum medical improvement (MMI). You can either have these benefits paid out weekly or have them paid out as a single lump sum.
Non-Schedule Loss Benefits
Non-schedule losses are permanent disabilities to the spine, pelvis, lungs, heart, or brain. When you have a non-scheduled loss, you permanently lose earning capacity.
Benefits are paid out for a minimum of 225 weeks for a loss of capacity of 15% or less and up to 525 weeks for a loss of earning capacity greater than 95%.
Lost Wages
You’re entitled to a portion of your lost wages if your injury keeps you out of work for more than seven days or if your pay gets reduced because you now work fewer hours or do other work for the same employer.
Your employer may also opt to continue paying your wages, though you will not receive money from the insurer if they do.
If you work two jobs, you may be entitled to include both salaries when determining your average weekly wage. The pay rate depends on the degree of your disability, as reported by your doctor.
Survivor Benefits
Workers’ compensation pays survivor benefits to a surviving spouse or minor dependents when a worker gets killed on the job. The amount is ⅔ of the deceased worker’s average weekly wage, paid as a weekly cash benefit.
Workers’ compensation also pays for a funeral or memorial expenses.
Of course, as with all workers’ compensation benefits, there are times when benefits are denied. If that happens, the survivors will generally need help from a workers’ compensation attorney to recover funds.
Get Help Today
If you’ve been injured in a workplace accident and have been denied the benefits rightfully owed to you, don’t hesitate. Contact our office to get help today.
See also:
What is the Difference Between Temporary and Permanent Disability in a NY Workers’ Comp Case?
How Can I Prove My Injury Happened at My New York Workplace?
What is the Difference Between Temporary and Permanent Disability in a NY Workers’ Comp Case?
Your workers’ compensation benefits depend, in part, on how long you are expected to be incapable of working due to your injury.
It is important to understand these terms and how they could impact your New York workers’ compensation case.
Temporary Disability
You are temporarily disabled if you are expected to be disabled only for how long it would take you to heal your injuries.
For example, if you work a physical job and you break your leg, you’re temporarily disabled for the six months it takes to heal that kind of severe fracture. Nevertheless, once your leg is healed, you can walk around again and return to your old job, assuming no complications.
You can collect workers’ compensation wage benefits until you reach maximum medical improvement (MMI) and return to work.
Permanent Disability
Permanent disability means the injury is so severe that doctors expect it to impact your ability to work for the rest of your life. You’ll be able to collect wage benefits for life. Your weekly benefits will amount to ⅔ of your former average weekly wages.
Schedule Loss of Use (SLU) Benefits
If you face permanent disability, you may also be eligible for additional SLU or scheduled loss of use benefits. These benefits pay you a certain amount of money for a certain number of weeks, depending on the body part lost and the loss percentage.
For example, if you lose your arm, you’re eligible for 312 weeks of SLU benefits. You are paid a sum that multiplies ⅔ your average weekly wage by the number of SLU weeks and the percentage of the loss to come up with the amount.
Temporary benefits are then deducted from your SLU awards. You may either take a lump sum or get regular workers’ compensation benefits checks until SLU runs out.
These benefits are meant to compensate you for losing earning power from the lost body part.
Partial vs. Total Disability
Partial disability is a disability that allows you to do some manner of work, even if it is not the same type of work you did after the accident. If you’re making less money than you made before the accident, workers’ compensation will pay ⅔ of the difference between your former average weekly wage and your current average weekly wage.
Total disability means you can’t do any work anywhere, even with accommodations. This entitles you to ⅔ of your average former weekly wage.
Get Help Today
Workers’ compensation cases get complicated fast and can include arguments over whether you’re “really” permanently and totally disabled or not. If you’ve received a catastrophic on-the-job injury, working closely with a workers’ compensation attorney is prudent.
Contact us to schedule a case review today.
See also:
Why Might a Claim for Workers’ Compensation Get Denied?
Occupational hearing loss occurs due to exposure to loud noises or harmful sound levels in the workplace over an extended period. Many jobs can lead to hearing loss, but some of the most common ones include:
- Construction
- Manufacturing
- Airport work
- Mining and drilling
- Military service
- Music work
- Agricultural work
Sometimes it can be difficult to prove that hearing loss occurred in the workplace. In addition, it’s important to know how the statute of limitations can impact your workers’ compensation claim.
The Statute of Limitations
Many people who experience occupational hearing loss experience the loss after leaving the job where the hearing loss occurred, either by retiring or by moving on to a new job. New York law makes provisions for these instances and requires that you be out of harmful exposure for 90 days before your hearing loss may be accurately measured.
You may file a claim:
- Three months from the date you were removed from the harmful noise at the workplace.
- Three months after being given protective gear to defend against workplace hearing loss. If you wear the equipment and lose your hearing anyway, your workplace will still be required to pay your workers’ compensation claim.
- Three months after leaving the employment in which the exposure to the harmful noise occurred.
You may file beyond a two-year statute of limitations if you do so within 90 days of learning that the hearing loss you’re suffering is related to your employment.
Hearing Loss Benefits in New York
When you lose your hearing on the job, you’re eligible for the following benefits:
- Payment for medical treatments, medications, and medical devices addressing your hearing loss, including hearing aids.
- Disability benefits if the hearing loss renders you unable to do your job at a rate of ⅔ of your weekly wage while you are out of work.
- Schedule of loss cash benefit awards for 150 weeks for the loss of an ear, calculated once you’ve reached maximum medical improvement.
Of course, receiving these benefits relies on whether you file the claim correctly. You must report the injury to your employer, receive medical treatment, and file the appropriate claims.
In addition, you should be prepared for your insurance company to try to deny your benefits. They will try to claim that hearing loss is age-related or that you listened to your music too loud. We can often dispute these claims by proving that sufficient noise levels existed at your workplace to lead to hearing loss and by proving you are in an industry that regularly suffers from hearing loss.
Get Help Today
When dealing with a claim like hearing loss, it’s always wise to retain a workers’ compensation attorney as quickly as possible.
If your occupational hearing loss claim has been denied, contact us. We’ll help you protect your rights and gain the compensation you deserve.
See also:
How Can I Prove My Injury Happened at My New York Workplace?
When Are You Officially “On the Job” in New York?
You can only claim workers’ compensation for injuries taken on the job, so it’s essential to understand when you are officially considered “on the job” in New York.
For the most part, thanks to the “coming and going” rule, you are “on the job” when you arrive at work and “off the job” when you leave employment.
Yet New York has carved out several exceptions to these rules.
Entering or Leaving the Premises
If the employer owns the premises, then you’re covered. For example, if you park in an employer-controlled parking lot and slip and fall on ice that’s in the parking lot, then you would generally be eligible for compensation, even if you were on your way to your car to leave work at the end of your shift.
If the parking lot is not owned or controlled by an employer, you may have a more challenging time claiming workers’ compensation, but it’s not impossible. It may depend on why you parked in the parking lot you chose rather than the employer-controlled one.
Work-Related Travel
Do you work in outside sales? Are you a plumber or other home repair person who routinely travels to customer homes? Workers’ compensation also covers meal breaks for these employees.
Do you routinely travel out of state for work? In these cases, the entire business trip is covered from the moment you leave, even if you’re traveling in your car and collecting a mileage reimbursement.
Special Errands
Occasionally, an employer might send you off on an errand different from your regular day-to-day employment duties. For example, an executive might send an admin out to drop something off at the post office.
Your travel to and from the post office should be covered as long as you don’t divert to any personal errands during that time. The courts use a two-part test: they ask whether the employer encouraged or directed the errand and if the employer benefited from the errand in any way.
However, if the court does this at the end of your workday, your usual commute home would be covered because the errand has altered the risks of commuting home (your regular route). For an example, see the 1995 case Neacosia v. NY Power Authority.
Get Help Today
While seemingly simple on its surface, the coming and going rule, like all laws surrounding New York workers’ compensation, can quickly become quite complicated.
If you’ve been injured at work and your employer is starting to question whether your injury arises from your employment, don’t wait. Contact our office to protect your workers’ compensation claim with help from experienced lawyers who can use the law to your advantage. We’ll tell you whether you have a case at all and can help you determine your next steps if you do.
See also:
How Can I Prove My Injury Happened at My New York Workplace?
The vast majority of workers heal and return to work at their same job after a workers’ compensation claim. Many do it without incident.
Yet, for some employees, the process of returning to work can be quite a bit more complex.
Start by Reviewing the Return to Work Policy
In New York, every employer should have a written return-to-work policy in place. This policy will govern the way your return to work plays out.
Always inform the workers’ compensation insurance company when you return to work. If the insurer continues to send you checks as if you’re fully out of work, you should return those checks to the insurer.
If you can only work part-time or otherwise fall short of what you used to make, you may be eligible for benefits to help you address the gap between your old and current wages. In addition, if you miss additional days seeking treatment, you can still receive benefits for those days.
Your Rights When Your Employer and Doctor Disagree
Many employers want their employees to return to work before the doctor says they are ready.
But in New York, you have the right to refuse to return to work if the doctor hasn’t cleared you to go. If the employer tries to force you to return to work, you can file a complaint with the New York State Workers’ Compensation Board. Employers often attempt to do this by threatening to fire or demote you or by attempting to make you feel guilty.
Of course, your employer is not obligated to hold your position once your FMLA and sick time benefits run out. They may just hire someone else. But by attempting to force you back to work, the employer is violating your workers’ compensation rights. Your employer is obligated to provide you with a safe medical environment.
Your Rights When You Have Medical Restrictions
If you have medical restrictions, you should provide your employer with a copy of that report. If your employer pressures you to ignore those restrictions or keeps assigning work that would require you to violate those restrictions, you can make a complaint to the New York Board of Workers’ Compensation.
Employers may even try to create a hostile work environment for you, give you poor performance reviews for refusing to violate medical restrictions, or threaten to fire or demote you to force you off light duty.
If you don’t have an attorney yet, now would be the time to acquire one.
Your Rights When Returning to Work Makes Your Condition Worse
You have the right to medical care for your worsening condition. It should be covered by workers’ compensation as long as you haven’t signed a final settlement agreement.
If the worsening condition makes it impossible for you to work, be sure to get documentation of that fact from your doctor.
Get Help Today
You should document every interaction with your employer once you start a workers’ compensation claim, and you should get any promises, threats, or agreements in writing. Never sign any documents you don’t understand or agree with, and never quit your job unless you’re ready to move on to a new one.
You have rights. Our law firm will help you protect them. If you’ve been injured on the job and feel like your employer is trying to violate those rights, reach out to our office to schedule a case review today.
See also:
What Happens to Overtime Pay in a New York Workers’ Compensation Case?
How Can I Prove My Injury Happened at My New York Workplace?
Even undocumented workers are eligible for workers’ compensation here in New York. You don’t have to prove your immigration status to file a claim. It’s a good thing, too: studies show undocumented immigrants are 15% more likely to be hurt or killed on the job than other workers.
In part, that statistic is because many immigrants are doing the work that native-born people don’t want to do, including work that is fundamentally more dangerous than the more desirable work. In addition, fear of deportation sometimes pressures immigrant workers to take risks they shouldn’t. Finally, undocumented workers receive smaller rewards for working in hazardous settings.
It’s also against the law for an employer to discriminate against an employee who files or testifies in a workers’ compensation case.
Of course, nothing is simple. Employers and their insurance companies have contacted ICE in the past when they knew that doing so would protect them from having to pay the claim. So have private investigators, who often use their success rate as a selling point when they try to secure the business of insurance companies.
Some employers even favor hiring immigrant workers specifically because they know they could try to use law enforcement to spare them from having to pay a claim.
If you’re an immigrant that’s been hurt on the job, it’s a good idea to retain both a workers’ compensation lawyer and an immigration lawyer immediately after your accident. You might need both.
Otherwise, you should follow the process any other worker would follow. Document the injury and report it to your employer. Seek medical attention. Immigrant workers typically underutilize health services, but your situation won’t be improved by failing to get the medical care you need.
All workers’ compensation cases are complicated. If you need help with yours, reach out to our office for a free consultation. We’re ready to help.
At our law firm, we understand the challenges that immigrant workers face regarding workers’ compensation claims. We have helped countless clients, regardless of their immigration status, receive the compensation they deserve after a workplace injury. Contact us today for a free consultation, and let us help you navigate the complexities of the legal system.
See also:
Steps to Take After Getting Injured on the Job in New York
4 Questions You May Have About Workers’ Compensation
Employer Can’t Fire a Worker for Claiming Workers’ Compensation
If you usually work overtime and are injured on the job, you may be worried about your pay rate taking a sharp decline. After all, workers’ compensation only pays ⅔ of a weekly wage as it is.
Fortunately, overtime compensation is already baked into workers’ compensation.
When you are hurt on the job, one of your first steps will be to fill out and submit Form C-3, “Employee’s Claim for Compensation.” This form will ask you for your rate of pay. The Workers’ Compensation board will then investigate your pay rate for the past 52 weeks.
They will then take an AWW, average weekly wage, for that 52-week period. Overtime pay is always included. In fact, if you have multiple jobs and are out of work at both jobs, the second job’s income is also included.
Unfortunately, working as hard as you possibly can pre-injury won’t always result in huge gains when you’re disabled. Workers’ compensation benefits are capped.As of this writing, they’re capped at $1,063.05 per week. You can look up the most recent rates here.
No matter how you slice it, you don’t enjoy the same pay rate while you’re laid out that you would have enjoyed while working unless you have a separate, private insurance policy that can help you make up the difference.
Getting injured on the job is not easy, and your injury may require you to make some adjustments. Severe injuries may require a little downsizing to survive. It’s not a fun reality, just a true one.
Nevertheless, all of your work and wages are taken into account, giving you a fighting chance to restructure your life or to heal and get back to work.
Hopefully, your employer will pay your benefits without quibbling, and you’ll be able to meet your bills and expenses until you can return to work. If you can’t return to work, it might be time to apply for SSDI, as workers’ compensation benefits will only pay you for 26 weeks.
If something goes wrong, we’re here. We’ve been protecting the rights of injured workers for over 70 years, and we’re happy to help you, too.
If your employer’s workers’ compensation insurance company isn’t calculating your benefit correctly or has denied or delayed your benefits, call us for a free consultation. We’re ready and willing to help.
See also:
How Can I Plove my Injury Happened at My New York Workplace?
Workers’ compensation will only cover injuries that happened at work, so your employer has some incentive to try to claim the injury wasn’t work related.
As workers’ compensation lawyers, we recommend gathering as much evidence as possible on the day you get hurt.
Use Your Phone
Take pictures of the scene, including your workplace and your injuries. Take a photo of a clock; you can use this to repair them to time reports or Slack messages, or any other time-stamped data that can help to show that you were present at work at the time of your injuries.
When you fill out the incident report, photograph that as well.
Were there any video cameras present? Photograph those in case your lawyer needs to track down the footage later.
Take Note of Witnesses
You’ll need the support of any coworkers who happened to see the accident.
Make a note of anyone who can corroborate your accident, and make sure you track down phone numbers and email addresses for each of them.
Hold on to Doctor’s Notes
Keep all doctor’s notes and medical records, and document your visit if possible. Anything you can keep can help us defend a denied workers’ compensation claim later.
If you are too hurt to take this step, initially, do your best to gather these reports later. For example, going to the ER will generate medical records: get copies of them.
What if the injury is less straightforward?
Much of this advice works well for acute injuries, but what about repetitive stress injuries or other workplace damage that occurs over time?
Report the injury as soon as you believe your workplace may be causing an RSI, and obtain medical treatment. The same is true for workplace illnesses.
If your employer tries to attribute your injury to some other cause or workers’ compensation insurance denies your claim, immediately secure a workers’ compensation insurance lawyer. Your lawyer can help you prove your work duties caused an RSI to develop or worsen.
Get Help Today
It’s always stressful to go up against an employer hoping to paint you as a liar to save a little money, especially when you’re already hurt and are concerned about your ability to pay your bills.
Working closely with a personal injury attorney can help you get your claim settled. Contact our office to get help today.
See also:
Steps to Take After Getting Injured on the Job in New York
Your employer does not care about you.
You need to wrap your head around this fact because it will become painfully evident as soon as you are injured on the job. Often, your employer will start doing anything in their power to minimize your workers’ compensation claim or avoid paying it altogether.
What you do directly after the accident will determine how large your settlement is and whether you’ll be able to recover compensation for your injuries.
#1) Get Medical Attention
Don’t say, “I’m fine,” and don’t put off medical attention. Your employer will generally tell you what doctor to visit in a non-emergency situation. In an emergency, call an ambulance and get to an ER.
Follow the medical provider’s instructions to the letter. If you don’t, they will use your failure to do so against you.
Within 48 hours of being hurt on the job, the doctor you choose must complete and mail Form C-4, the Preliminary Medical Report.
Every 45 days, your doctor must submit a report detailing your process.
#2) Notify Your Employer in Writing
Fill out an incident report or write an official letter within 30 days of the accident. You must do so to retain your right to a workers’ compensation claim.
Stick to the facts: don’t embellish or volunteer information. Tell your employer precisely what happened and how it happened.
Your employer has ten days to notify their insurance company and the Workers Compensation Board.
#3) Fill Out Form C-3
Form C-3 lets you notify the New York Workers Compensation Board that you’ve suffered an injury at work.
You have two years from the accident date to file this form, but you’ll want to file it a lot faster. We recommend getting it done as soon after the accident as possible.
#4) Know What Workers’ Compensation Does and Does Not Pay
Workers’ compensation pays all of your medical bills. Workers’ compensation also pays you a living allowance of ⅔ x your average weekly wage x % of disability. The Workers Compensation Board caps benefits at $1,125.46 per week.
You won’t be paid for pain and suffering like in a personal injury case, but matters of “fault” also don’t enter the picture.
You should start receiving payments within 18 days unless you return to work within seven days of the accident. Your payment may also be delayed if your employer or their insurance company files a dispute. The Workers Compensation Board makes payments every two weeks.
#5) Get a Lawyer As Soon as There is a Problem
Ideally, your employer’s workers’ compensation insurance provider will pay the claim without creating problems.
If the employer disputes the claim or the insurance company denies the claim, your chances of resolving the problem on your own are slim to none. The power dynamic simply works against you.
In addition, you may need an attorney’s help once you return to work.
Sometimes, doctors recommend light duty, and employers demand you perform tasks that violate medical recommendations. Employers may also make life unpleasant in the hopes that you’ll quit. In either case, you must retain an attorney to protect your rights.
Get Help Today
If you have gotten hurt at work and are having trouble with workers’ compensation, contact the Law Offices of Sher, Herman, Bellone, and Tippograph today. We’re experienced workers’ compensation attorneys who are ready to protect your rights.
See also:
How Credibility Impacts Your Workers’ Comp Claim
Occupational Diseases and Workers’ Compensation
Workplace Injuries Are Covered Through Workers’ Compensation
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