Why do I need an attorney in a Workers’ Compensation claim?
Although you are not required to have an attorney, having someone who understands the legal proof necessary to establish a Workers’ Compensation claim is extremely helpful.
Our firm has successfully represented thousands of disabled claimants on both basic claims, before Workers’ Compensation Law Judges, as well as appeals to the Workers’ Compensation Board of Commissioners. We combine a complete knowledge of the law with an understanding of the requirements demanded by individual judges. We are available to discuss potential claims and there is no fee for a consultation.
Who is eligible for Workers’ Compensation payments?
Any worker in the State of New York if injured on the job, where such injury arose out of and in the course of employment, is entitled to claim payment of medical bills and cash payments, based upon the resulting disability.
Occupational claims, such as repetitive stress injuries, cardiac claims, dust disease claims, and virtually every condition that can be caused by an on-the-job injury or exposure, would be potentially viable under the New York State Workers’ Compensation Law.
Individuals who are employed by New York City are eligible for the City’s own separate version of workers’ compensation. The State Law covers every worker in the New York State except the Uniform Services of the City of New York, specifically Police, Firefighters, and Sanitation Workers. Civilian employees of the Police Department, Fire Department or Sanitation Department are covered under the New York State version of the law.
What are the rates in Workers’ Compensation?
Presently, an injured worker can receive 2/3rds of their average weekly wage, or up to the maximum rate for that year, whichever is less.
Are the Workers’ Compensation payments guaranteed?
No. The determination of disability is an adversary process between yourself and the insurance company or self-insured employer or its servicing agent.
Total disability is two-thirds of your average weekly wage or $400, whichever is less. Then there are intermittent levels of partial disability characterized as “ mild”, “moderate” and “marked” disability. There is an active industry of doctors examining on behalf of insurance carriers for the purpose of describing your disability in a way that would cause a reduction in your payments and treatment and tests authorization.
This is one of the many reasons we strongly recommend you have an attorney representing your interests in proceedings before the Workers’ Compensation Board.
How long do I have to give my employer notice of injury?
The law gives you thirty days to give formal notice to your employer of an injury or illness which arises from, or you believe to have arisen from, your job duties. This requirement is often “excused,” where the lack of notice “did not prejudice the employer’s ability to investigate the claim.”
Is there a time limit for filing a claim?
Yes. Two years from the date of accident is the maximum delay that would still allow a claim to be viable. Some form of notice of claim must be given not to the employer, but to the Workers’ Compensation Board, within two years of the accident or onset of illness. In those types of illnesses which are slow starting, the statute of limitations is two years from when you knew or should have known that your illness arose out of or in the course of your employment. Giving notice of accident or injury to your employer does not mean you have a compensation claim.
What do I get for injuries to my arms, legs, vision and hearing?
The legislature has provided a “schedule” of benefits in the Workers’ Compensation Law, for injuries to your extremities (fingers, toes, hands, feet, arms, legs), and also for the loss of hearing and loss of vision. The “value” of each of these extremities is different, and is paid in “weeks of compensation.” For example, if your fifth finger is amputated, having a “schedule” value of 15 weeks of compensation for 100% loss of that finger, you would receive 15 weeks of compensation at your “rate of compensation,” or compensation for the actual time lost while disabled, whichever is greater.
Should I trust the insurance company?
In our opinion, absolutely not. The company may assign a “Nurse Case Manager,” who may contact you to go with you to your doctor, and in some cases, try to intimidate your doctor into reducing his requests for test and treatment. The Nurse Case Manager, while in theory being a title which is meant to offer you assistance, from a practical standpoint, such persons often act as investigators for the insurance company, and in our experience, often interfere with our client’s ability to obtain proper monetary and medical benefits. Likewise, the “Claims Examiner” is not your friend; he is a person hired by the insurance company to pay as little as possible within the limits of the law.
Must I sign forms and speak to investigators?
Absolutely not. We advise all of our clients not to talk to the carrier personnel, when it is the insurance carrier who has contacted them. There’s nothing wrong with a compensation claimant calling the insurance carrier to determine what happened to a check which is due, etc. But if the insurance carrier initiates the conversation, we recommend you refer them to your attorney, who in most cases, will not allow you to speak to them.
Likewise, any forms sent to you by the insurance carrier, should be filled out and sent to your attorney, so that your attorney can determine if there is a need for the carrier to have this information. This includes medical releases, job histories, family medical histories, and all forms they send you. Fill them out, if a signature is called for, sign it, and then send it to your attorney to determine if the insurance carrier should have the documents.
Are any injuries not covered by the Workers’ Compensation Law?
Yes, but examples are rare. Certain “psychic trauma” arising from personnel decisions at your company may not be covered. But for the most part, even psychic trauma is covered.
Is there a waiting period before I am eligible for benefits?
On initial periods of disability there is a one week waiting period before you are due money benefits. However, if you are out of work and disabled for more than two weeks, the waiting period is waived retroactive to your first day of medical treatment for disability. Medical benefits have no waiting period.
When does coverage begin?
Inside workers are covered from the time they arrive at work until they leave. If you are an outside worker, you may be covered “door-to-door,” from the time you leave your home until the time you enter your home in the evening. If you are on a trip for your employer, you are covered if you are injured or taken ill.
What happens if I die due to an on-the-job injury?
Should you die due to an on-the-job injury or illness from your employment, your widowed spouse and children who are minors may be entitled to a death benefit. Such benefits would be payable until the children are legal adults and until your spouse re-marries.
Who chooses the doctor I must see?
Except with certain employers who have an agreement with the Union to opt-out of the Workers’ Compensation entitlement to use any doctor, you may choose any doctor in the State of New York, who is authorized by the Workers’ Compensation Board to treat Workers’ Compensation cases. This includes most doctors in the State. Under special circumstances, you may be entitled to use specialists out of state or doctors in the locality where you live, should you move out of state.
What types of doctors may I see?
Medical doctors, osteopaths, chiropractors and certain psychologists are all authorized to treat under the Workers’ Compensation Law. A psychologist must be at least a PHD, and you must be referred to that person by one of your treating physicians, a medical doctor. Chiropractic is covered; Podiatry is covered; the services of a Physical Medicine and Rehabilitation Specialists (Physiatrist), etc. Any type of Specialist who accepts Workers’ Compensation patients is covered under the law. This includes Cardiologists, Pulmonary Specialists, and virtually every specialty in medicine is acceptable.
How long am I entitled to medical care?
Although certain cases are settled and your right to medical care is given up in exchange for a settlement from the insurance company, usually medical care is for life, for those parts of the body, “established” as covered by your Workers’ Compensation claim.
How is my attorney paid?
All fees are determined by the Workers’ Compensation Board. Your attorney will make an application to the Board for a fee, based upon services provided of the work done on the case, and the results obtained in terms of monetary compensation and medical care. The Administrative Law Judge, and ultimately the Workers’ Compensation Board, must approve any such fee.
What else do I need to know about Workers’ Compensation and filing a Workers’ Compensation claim?
There is literally too much information to be given to you to present it here.
The “ins and outs,” of the Workers’ Compensation Law are, in our opinion, best handled by attorneys or Licensed Representatives who have been trained to deal with the intricacies of the law. Virtually every decision of an Administrative Law Judge at a Workers’ Compensation hearing is appealable by the party unhappy with that decision.
The insurance defense industry makes a great deal of money fighting claims. This is what they do for a living. On the other hand, claimants counsel, such as our firm, make our living defeating the insurance carriers’ attorneys wherever possible and we only make money if we are successful in prosecuting your claim.
There is much more for you to know; about hearings; about what to do if the insurance company fights your case by denying that you are eligible for Workers’ Compensation. You need to know your rights for reimbursement for out-of-pocket medical and transportation expenses. You need to know that you should never pay a health provider or hospital for treatment in connection with an on-the-job injury or illness.
You need to know what to do if your head, neck, or back are injured. What if you have a heart attack or a hernia, or a stroke, or broken ribs, or other trunk-of-the-body ailments caused by your work?
You need to know the nature and quality of medical reports submitted in your case by your health care providers. You need to know the dangers of putting your job and “voluntarily withdrawing from the labor market;” something that could disqualify you for future benefits.
You need to know not to just, “retire,” from your job because of your injuries, but to do it in a certain way and manner, with the advice of your doctor and your attorney, so that your retiring does not, “withdraw you from the labor market.”
There is so very much more that comes up in almost every Workers’ Compensation case. What do you do when the insurance carrier assigns an investigator to follow you around; what do you do if the insurance carrier sends you to one of their defensive medical doctors?
These and many more issues represent the intricacies of the Workers’ Compensation Law and the prosecution of a claim.
It is, for this reason, we feel you should have an attorney with you on every claim, whether it is our firm or another.
When is Retirement Disability available?
Disability Retirement is available to workers that can no longer perform the full duties required of their specific title. This legal standard means that you must no longer be able to perform your job, it does not require that you be disabled from all jobs in the United States like Social Security Disability. If you and your treating doctors believe that your injury or illness will not allow you to return to your previous work, an application for Disability Retirement should be file.
How does NYCERS determine if I am disabled?
NYCERS has established a Medical Board to hear each application for disability retirement. This three doctor panel is charged with reviewing all the evidence a member submits in support of their claim for benefits and is also required to physically examine the injured/ill worker. Once examined, the Medical Board will recommend to the NYCERS governing body, the Board of Trustees, whether or not to approve or deny your claim. By law, the Board of Trustees cannot overturn the Medical Boards determination regarding a member’s fitness for duty, but must make its own determination on issues regarding the accidental nature of your injury and casual relationship, that is, whether your injury was caused by the specific accident alleged in the application.
If I am approved, will I receive medical benefits from NYCERS?
Technically, the answer is no. NYCERS does not administer medical benefit coverage. Instead, medical benefit coverage is a contractual issue. Rest assured, almost all contracts today treat disability retirees the same as service retirees, preserving their medical benefits upon retirement.
Can I work another job as a Disability Retirement recipient?
Yes, however you will be subject to income limitations, which change annually. Whenever you decide to take new employment, you should contact NYCERS to find out the current income limitation.
Can I receive a Disability Pension, Social Security Disability, and NYS Workers’ Compensation together, without offset?
Yes, Tier 4 Disability Pension benefits are not offset by the receipt of either SSD or NYS Workers’ Compensation and a member can receive all 3 benefits payments under the law.
When should I file a Disability Retirement application?
The Retirement and Social Security Law has various filing deadlines for disability retirement depending on the pension Tier the member has been assigned. Tiers are determined based on one’s original membership date with NYCERS. Although the law sets guidelines on the latest date a member can apply for a disability pension, the basic rule of thumb is that an injured worker should apply for a disability pension as soon as they and their physician determine that they are no longer able to return to their prior work, but not later than 6 months after an injured worker has been absent from work on an approved medical leave. Remember, the law allows your employer to medically separate you after one year of absence. Therefore, in order to avoid medical separation, and possible interruption of medical insurance coverage and other benefits, it is in a worker’s best interest to file as early as possible.
Statute of Limitations for Filing
Within 3 months of the date a member was last paid on payroll, or within 1 year of when a member received notification that their employment has been terminated as long as the member was on an employer approved medical leave of absence prior to termination.
Definition of Presumption
If an individual’s pre-employment records/medical records before 9/11 don’t have a diagnosis of a “qualifying condition” and if they worked at the World Trade Center disaster site-particular to the areas outlined below-NYSLRS can “presume” the individuals diagnosis stemmed from the work they did in the aftermath of 9/11.
World Trade Center qualifying locations, as defined by the NYS Comptroller’s Office:
- The World Trade Center site (defined as the area below a line starting from the Hudson River and Canal Street bearing east on Canal Street to Pike Street, continuing south on Pike Street to the East River; and extending to the lower tip of Manhattan);
- The New York City (NYC) morgue or any temporary morgue;
- The Fresh Kills Landfill; and
- On the barges that ran between Manhattan and the Fresh Kills Landfill.
Do I still qualify if I worked at locations different from those in Question 1?
The guidelines to qualify for presumption benefits are based on:
- qualifying locations and/or qualifying duties.
- The length of time/period of time which duties were performed.
Per the NYS Comptroller’s Office, if an individual performed any kind of clean up duties during the first two-day period after the first plane crash, or worked a cumulative 40 hours from 9/11/01 to 9/12/02 at one or more of the locations in Question #1, they meet the qualifications for presumption. They also are eligible if specific duties were performed at particular NYPD, FDNY, or EMS locations during the first 24 hours of clean up operations, or fixed cars/equipment effected by debris, whether or not it was done at one of the locations in Question 1.
Does this cover accidental disability benefits?
The WTC Presumption Law only provides Presumption Benefits. However, if an individuals retirement plan has accidental disability benefits, and they were deemed permanently disabled, this law could make them eligible for WTC Accidental Disability Presumption. There is no deadline for the WTC Accidental Disability Presumption form (Form RS6047-W), as long as they file a World Trade Center Notice on/prior to 9/11/2022, as required by the NYS State Comptroller’s Office. If an individual has already retired with accidental disability benefits, they are not eligible for other benefits.
What is the filing deadline?
The deadline was recently extended to September 11th, 2022. An individual who wants to file for Presumption must fill out both the Presumption form (RS6047-W) and the Notice form (RS6047-N) by 9/11/2022.
What about individuals who retired before 9/11?
Those who retired prior to 9/11 are not eligible.
If I opt for a Partial Lump Sum payment, can I still file for a reclassification of benefits?
Yes. Please take note an individual must pay back the Partial Lump Sum along with accrued interest, and that this only applies to accidental death benefits.
If an individual dies as a result of their condition, what does this provide for their beneficiaries?
Beneficiaries could potentially change disability retirement benefits into WTC accidental death benefits if the person they are a beneficiary of passes away within 25 years of the day they retired and if that same person filed a WTC Notice by 9/11/2022. This will depend on the policies in the respective individual’s retirement plan concerning their beneficiaries.