Workers Compensation

Introduction

Workers compensation provides cash benefits and/or medical care for workers who are injured or become ill as a direct result of their jobs. If you were injured on the job, there are important timing and notice considerations that need immediate attention. Hach & Rose, LLP maintains highly skilled and dedicated trial counsel to handle workers compensation claims. If you have been seriously injured on the job, you should consult an attorney at Hach & Rose immediately.

Employers pay for this insurance, and may not require the employee to contribute to the cost of compensation. Weekly cash benefits and medical care are paid by the employer’s insurance carrier, as directed by the Workers Compensation Board. The Workers Compensation Board is a state agency that processes the claims and determines, through a judicial proceeding, whether a worker receives benefits and/or medical care, and how much he/she receives.

In a workers compensation case, fault for an injury is irrelevant. The amount that a claimant receives is not decreased by his/her carelessness, nor increased by an employer’s fault. However, a worker loses the right to workers compensation if the injury results solely from intoxication from drugs or alcohol, or from the intent to injure oneself or someone else.

A claim is paid if the employer or insurance carrier agrees that the injury or illness is work-related. If the employer or insurance carrier disputes the claim, no cash benefits are paid until the workers compensation law judge decides who is right. If a worker is not receiving benefits because the employer or insurance carrier is arguing that the injury is not job-related, the worker may be eligible for disability benefits in the meantime. Any payments made under the disability program, however, will be subtracted from future workers compensation awards.

Notice and requirements for Proof of Claim

Workers compensation law requires that employees give notice to their employers within 30 days of an accident. The law mandates that such notice be in writing, although some cases allow it to be given orally. Exceptions to the rule include incapacity and cases where the injured worker does not realize the seriousness of the injury. The law also requires that claims for accidents be filed within two years at the Workers Compensation Board. For occupational diseases, a claim must be filed in two years. But the time to file is measured from the date of disability or when the worker knew or should have known of the relationship between the disease and the worker's occupation, whichever is longer.

The law requires that an injured employee only obtain medical services from a coded medical provider. This does not apply in emergency situations or when the claimant (injured worker) is an out-of-state resident. It is the obligation of claimants to produce at least once every 45 days medical reports certifying that they are disabled. If a doctor wants to perform a procedure costing more than $1000, the doctor must get the carrier's authorization. Law requires that the carrier respond within 30 days. If the carrier fails to respond in the required time, the services are deemed authorized. The carrier must have a valid medical opinion to object.

Medical Proof of Claim must contain:

1. History of accident or occupational disease
2. Diagnosis
3. Statement of disability
4. Statement of causality and signature of consultant
5. Test results and requests for special procedures

Benefits

New York State Workers Compensation Law provides lifetime medical care for accidents and occupational diseases under the law. A claimant is also entitled to receive reimbursement for incidental medical expenses such as prescriptions, bandages and transportation expenses to and from medical providers. Medical care has been found to include additional items for the care and treatment of a worker's injuries or occupational disease. This includes items necessary for the wellbeing of the individual. The law also 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 salary up to the maximum applicable benefit for total disability. Partial disability is determined based upon the claimant's wages, ability to work and transferable skills.

If an individual injures a limb or portion thereof and the claimant has received a maximum benefit of care, a schedule of awards could produce a monetary award, even if the claimant has not lost a single day of work. This section of the law also applies to injuries to a worker's eyes and ears. The law provides that prior payments of workers compensation and salary are deducted from these awards. The law includes an award for facial scars of up to $20,000.

Common workers compensation questions

Q. Are all disabilities covered under Workers Compensation Law?
A. No. You may only receive compensation for disabilities that are causally related to an accidental injury or occupational disease arising out of and in the course of the employment.

Q. What if a worker fails to file a claim for workers compensation?
A. You may lose your right to benefits and medical care.

Q. Is it necessary for a worker to retain an attorney?
A. Although you do not always need attorney’s assistance, it may be desirable if the issues are complicated such as in cases of injury to a limb, or scarring, hearing loss, or occupational diseases. Attorney’s fees are deducted from the claimant’s award, as determined by a Workers’ Compensation Law Judge. By law, a claimant must not pay an attorney directly.

Q. How is the weekly cash benefit for temporary total disability determined?
A. The weekly cash benefit for temporary total disability is computed by taking two-thirds of the worker's average weekly wage for one year immediately preceding the accident. It may not, however, exceed the legal maximum in effect on the date of the injury.

Q. Is medical care provided in the case of an accidental injury even when no claim is made for weekly cash benefits?
A. Yes. If medical care is necessary, it will be provided even though there has been no lost time from work (or less than eight days lost time) and no cash benefits paid.

Q. When does medical care require advance authorization?
A. When the services of a specialist, consultant, or surgeon, or special lab tests, physiotherapeutic procedures or X-rays costing more than $500 are required, authorization must be obtained from the employer or carrier.

Q. Are prescription drugs and medications covered under the law?
A. Yes. The claimant should send a receipted bill and letter from the attending physician to the insurance carrier, stating that the purchase was necessary and in accordance with the physician’s direction.

Q. May a doctor proceed with care if the insurance carrier withholds authorization without reason?
A. Yes. When the authorization has been requested and withheld without reason, the doctor may proceed to render the services required for the claimant’s welfare.

Q. Must an injured worker submit to a medical examination when requested to do so by the employer or insurance carrier?
A. Yes. The employer or insurance carrier is entitled to have the worker examined by a qualified physician. Refusal to submit to an exam may affect the worker’s claim.

Q. What happens when a claim is contested by the insurance carrier?
A. The insurance carrier contesting the claim must file a notice of controversy with the board within 18 days after the disability begins or within ten days of learning of the accident, whichever is greater. The carrier must give the reasons why the claim is not being paid. The issue is resolved by a WC Law Judge at a pre-hearing conference or a hearing.

Q. May an insurance carrier suspend or modify the cash benefits?
A. In a case where the carrier has made payment without waiting for a Judge’s decision, it may suspend or modify the payment based on payroll or medical evidence submitted to the Board.

Q. What can a worker do if he/she is not satisfied with the Judge’s decision?
A. The worker may file with the Board a written application for review within thirty days of the filing of the notice of the Judge’s decision. The application must specify why the claimant disagrees with the decision.

Q. What can a worker do if he/she is not satisfied with the Board’s decision after an application for review?
A. The worker may appeal to the Appellate Division, Third Department, within 30 days after the decision has been served upon the parties.

Q. What is the penalty for making a false claim?
A. A person who willfully misrepresents the circumstances surrounding his or her case in order to obtain benefits is guilty of a felony.