Injured at work? Follow these steps to protect your rights.
No matter what industry you work in, on-the-job injuries happen every day. A grocery store may not ensure their ladders are stable; an office may have a rickety shelf with too many files; or a job site may have equipment strewn about, creating trip hazards. When you’ve been injured on the job, you have rights. You are entitled to apply for workers’ compensation, which will pay for your medical expenses and cover a portion of your salary while you’re recovering.
For example, construction work is inherently dangerous. Although construction workers have an advantage with training and safety measures, accidents do still occur, and when they do, they can be both physically and financially catastrophic to both the victim and his or her family. Dangerous situations are often avoidable on the sites where members work, but it is the responsibility of property owners, general contractors, subcontractors, machine and equipment manufacturers, as well as equipment suppliers to provide not only a safe place to work but also to provide safe equipment to perform your work in order to make that site safer.
The New York State Labor Laws protect workers when injured on construction sites. Section 240 of the Labor Law holds property owners and general contractors responsible if there is a gravity-related injury; meaning if a worker falls from a height or an object falls striking a worker, that worker can recover against a third party on or affiliated with the construction site. Sections 241 and 200 of the Labor Law hold owners and contractors responsible if sections of the Industrial Code of the State of New York are violated or if a worker is not provided with a safe place to work. Although these guidelines seem fairly straightforward, these three sections of the law are subject to a great deal of interpretation by the Courts.
Many people aren’t sure where to start when they’ve suffered from an injury at work. If you are injured on the job, follow these steps to protect your rights.
- Always seek medical attention first. Even if the injury is seemingly minor, it is important that the injury is documented early so that in the event it worsens over time, the injured worker will not be in a position to have to explain why he or she did not seek treatment when they were first injured. The longer you wait to treat, the more difficult it will be to claim the injury resulted from the accident in question.
- Report the accident immediately. If you wait too long to report the accident, the responsible party may argue that the accident did not occur on the job.
- Take photographs or video. Working conditions can change quickly. If you work on a job site, this is especially important. Construction sites often change quickly, and dangerous conditions may be fixed before they are documented. In the modern era almost everyone has the ability to use a cell phone to record a dangerous condition; it is important this is done as close to the time of the accident as possible.
- Get the names and contact information of all witnesses. People move to different jobs or start working for different companies; it’s a fact of life. The ability to contact and find witnesses is vital and should not be overlooked, so before too much time has passed, be sure to get contact information for anyone who may have witnessed your accident.
- Do not speak with anyone from an insurance company or investigators. Insurance companies for responsible parties often attempt to record statements from injured members before they hire their own attorney. They do this to obtain information that will diminish the value of a claim or ruin the claim altogether. The insurance carrier representative may sound as though they are trying to help you. In fact, many will even go so far as to tell you they are there to help. In reality, their ONLY job is to decrease the amount of money you should rightfully receive.
- Hire a competent attorney that specializes in workers’ compensation cases. There are many nuances and pitfalls that can mean the difference between success and failure of your case. Although there are some excellent attorneys out there, there are many more that simply advertise for these cases without knowing the details and practice pitfalls under the NYS Labor Laws. This is especially important if you are a member of a union. Such lawyers do their clients, as well as other members and lawyers who practice in this area, a huge disservice by ultimately decreasing the case value for injuries similar to yours.
These steps will help you protect your rights in the event of an injury at work. However, you may still have questions about the process and what you’re entitled to. Read on for answers to some of the most commonly asked questions.
If I’m injured at work, will I get full pay?
When you are injured at work you will be covered by your employer’s workers’ compensation insurance, which will pay a percentage of your salary. No, you will not receive the same amount as your regular wages. According to the New York State Workers’ Compensation Board, the calculation for workers’ comp benefits is based on your earnings for the 52 weeks prior to the date of your injury. Your wage will be based on your gross earnings, not your take home pay, and is known as your Average Weekly Wage, or AWW.
For someone who worked 5-day weeks, your AWW will be determined by dividing your total gross earnings by the total numbers of days paid, multiplying that result by 260 (total days you worked during the year), and then dividing that result by 52 (weeks in the year). Below is an example from the NYS Workers’ Compensation Board website.
For a person who earned a total of $45,000 and was paid for 250 days in the year leading up to the date of accident, the AWW using this calculation would be set at $900.
It is important to note that these payments will only begin once your workers’ compensation claim has been approved, and you can be denied if you don’t carefully document your injury. That’s why it is crucial to follow the steps outlined above. Of course, receiving only partial wages while on disability is a hardship for many people, which is why consulting an attorney about your rights is important. You may be able to seek your full wages or an even higher compensation with the help of your attorney.
Can I be fired after getting injured at work?
After you have been approved for workers’ compensation, your job is typically protected for 12 weeks by FMLA. Your employer cannot fire you for simply being injured and receiving workers’ compensation, that is illegal. However, the law recognizes that your employer will need to fill your vacant position. Therefore, you may not be guaranteed to get your old job back, depending on how long your recovery period lasts.
Keep in mind that exceptions may be made for those who are members of unions. If you are part of a union, your union may offer protections in the case of on-the-job injuries. You should contact your union representative regarding your situation and see if there are any additional protections for injured workers.
The Americans with Disabilities Act (ADA) offers protections for employees who sustain lasting injuries when they return to work. Your employer is required to make reasonable accommodations, like offering additional or modified equipment, adjust your work schedule, or restructure your job duties to tasks you can complete despite your injury. The law defines “reasonable” accommodations as adjustments that don’t significantly impact the employer’s operations and budget. Reasonable accommodations may also depend on the size of the employer, and larger employers are expected to make more substantial accommodations than smaller employers.
Unfortunately, many employers do not want to comply with the ADA and make the necessary accommodations. Unscrupulous employers may create a hostile work environment where the employee is pressured to leave. This is illegal. If you are being harassed at work after your injury, you should contact a lawyer as soon as possible. You should immediately begin documenting any harassment you experience. Take notes on dates, times, anyone who participated in the incident or who may have witnessed it. This will help your attorney argue your case.
Who pays my medical bills when I’ve been injured at work?
When you’ve been injured at work, your workers’ compensation will cover your medical bills. This includes all necessary treatments, like ambulance trips, emergency room visits, overnight stays at the hospital, diagnostic tests, and any related physical therapy appointments. It also covers any necessary medical equipment, like crutches, and any prescriptions. You are not required to pay any deductibles or copays. If it is necessary to visit a doctor before your workers’ compensation has been approved, be sure to keep detailed records and receipts of any treatment you receive so you can be reimbursed later. If you receive a bill from a hospital or a doctor related to your treatment, you should direct their billing department to your employer’s insurance company. The bottom line is that if you were injured at your workplace, you are covered under workers’ compensation insurance and your employer, or their insurance company, is responsible for your medical bills.
The flipside to this is that the workers’ compensation board is entitled to approve all treatments. All of your medical expenses will be paid as long as the care is considered reasonable, necessary, and associated with your work injury. Treatment is not approved simply when it is approved by your doctor. The New York State Workers’ Compensation medical guidelines outline what treatments are approved. If you require a treatment that is not covered, your doctor can fill out an MG2 form.
What if I get injured at work while I’m off the clock?
In theory, workers’ compensation cases are cut and dry. If you’re injured while you’re at work, you’re entitled to compensation for your medical bills, out-of-pocket expenses, and a portion of your lost wages. However, complications can arise when the worker wasn’t clocked in at the time of the accident, on an errand, or commuting.
Lines can blur when your work responsibilities overlap with personal activities. For example, maybe you left the building for your lunch break, but your boss asked you to pick up some office supplies on your way back in, and while completing the errand you suffer from a serious slip and fall. Or a grocery store employee punched out for the day and was hit in the parking lot of the store. These trickier cases are where it’s especially important to hire an experienced workers’ compensation attorney who can fight on your behalf to have your case approved.
Though these cases aren’t as simple, your attorney should be able to prove that these instances qualify as within the scope of your employment.
If your workers’ compensation claim is denied for reasons such as the accident occurred while you were on a break, off the employer’s property, or after business hours, don’t take no for an answer. There is no cost to you to consult a personal injury attorney experienced in handling workers’ compensation cases. Your claim may be legitimate, and just because it was denied doesn’t mean you can’t fight the decision. Your employer’s insurance company is hoping that you will give up pursuing your case – that’s their best-case scenario. It’s in your best interest to explore all options before accepting a rejection.
Can I qualify for workers’ compensation even if I have a pre-existing condition?
Yes, you can receive workers’ compensation for your on-the-job injury, even if you have a pre-existing condition. Workers’ compensation insurance companies may be quick to deny your claim if you have previous injuries, even if they’re unrelated, or if you have age-related health conditions. Your workers’ compensation claim cannot be denied based solely on your pre-existing condition.
If you have a pre-existing condition that was significantly worsened or aggravated by an incident on the job, then you should qualify for workers’ compensation. For example, you have a herniated disc in your spine, and a fall off a ladder on a job site has caused the injury to get much worse. You still sustained an injury on the job, and the previously herniated disc didn’t cause the accident. In these cases, you may need to get a doctor to evaluate your condition and certify how this on-the-job accident worsened your pre-existing condition in a significant way.
Repetitive work injuries that aggravate a pre-existing condition, like a worker who has previously dislocated his shoulder and is now injured from moving heavy boxes every day, are more likely to be fought or denied. This is where an attorney’s help is key. With a strong legal argument and solid evidence, your attorney will be able to fight for your rights. Make sure you consult an attorney who not only has experience with workers’ compensation cases, but also has experience handling more complex matters like individuals who have a pre-existing condition.
The Experienced Workers’ Compensation Attorneys at Hach & Rose, LLP are Here to Help
Partner Michael Rose teaches lawyers of New York how to handle these cases. Because success or failure of a case can hinge on a small detail, choosing the right attorney is vital. Results obtained by Hach & Rose, LLP, include $13M for a painter/operating engineer who fell from a ladder; $2.1M for a laborer struck by a Bobcat; $3.475 for a carpenter who fell from a temporary roof; $2.5M for an engineer who fell because of a poorly constructed permanent ladder; $1.625M for a carpenter who tripped and fell on a piece of debris; $2.5M for a sheet metal worker, $3.5M for a mason tender, and $3.525M for a construction supervisor.
Hach & Rose, LLP, is one of the top construction accident law firms in New York State and has the results and pedigree to back it up. Hach & Rose, LLP, aggressively protects the rights of Union members and has unique experience handling complex construction accident cases for Union members who have been injured. Hach & Rose, LLP is never afraid to go to trial — the insurance companies know it and it’s that willingness to go to trial that ultimately increases the amounts insurance companies are willing to pay to our clients. We are a one-stop-shop that coordinates your workers’ compensation and Social Security disability benefits as well. If a member has been injured in a work-related accident, contact Hach & Rose, LLP, toll free at (212) 779-0057 to discuss any legal issues you may have.