Workers' Compensation FAQ

Terry Katz1. What is New York State Workers' Compensation?

In New York State, an employee cannot sue their employer when injured on the job, even if the employer was negligent in some way. Instead, an injured worker may make a claim under the Workers' Compensation law, which requires that an employer must provide Workers' Compensation insurance to cover on-the-job injuries. The employer must pay for this insurance policy and cannot require employees to contribute to the cost. Once an employee makes a claim under Workers' Compensation, the Workers' Compensation insurance carrier will decide whether they are accepting or contesting the claim. The claim will then proceed through the Workers' Compensation Board, which is the administrative court that oversees the case.

Although an employee cannot sue their employer in New York State when injured on the job, if there is a third party that was negligent, the injured worker may have a viable third party lawsuit that is separate from the Workers' Compensation case and may provide for payments that are not covered by Workers' Compensation.

2. What kind of compensation will I Get if my base is established?

Workers' Compensation insurance is designed to compensate an injured worker (referred to as the "claimant") in two ways:

  • Payment of medical expenses for injuries caused by the work-related accident or occupational illness or injury
  • Payment for part of a claimant's lost wages (either due to lost time from work or reduced earnings while back to work light duty) up to a maximum permitted by law.

The amount of a claimant's payments depends on both the claimant's average earnings at the time of the accident and the claimant's degree of disability. An additional award for residual permanent loss of function of an extremity (hands, arms, feet, legs) may be awarded after a claimant has reached maximum medical improvement from their injuries and has finished active treatment. Since a Workers' Compensation claim is not a lawsuit, there are no payments for an injured worker's pain and suffering.

3. What is the difference between NYS Workers' Compensation and NYS Disability?

A NYS Workers' Compensation case is where an employee is injured on the job. A NYS Disability case is where an employee has an off the job illness or injury. A person cannot receive both Workers' Compensation payments and NYS Disability payments at the same time.

4. What qualifies as an on-the-job injury?

Generally speaking, an accident or an occupational injury must arise out of and in the course of employment. This means that the accident, or the occupational injury, must have occurred while on the job and that the cause of the accident was somehow work-related. Since not all cases and circumstances are quite clear, in some cases we need to examine the facts to determine whether the accident or the occupational injury actually occurred while in the course of employment and that it was related to the employment.

5. What should I do if I get hurt on the job?

The first thing that an injured worker should do is report the injury to a supervisor, either verbally, or in writing, within 30 days of the accident. Failure to notify your employer timely may result in a denial of the claim.

Next, the injured worker should seek medical attention with a doctor of their choice. Medical reports are critical in determining diagnosis, disability, and whether the injuries are a result of the accident or occupational injury. Then, a claim must be filed with the Workers' Compensation Board.

Although an injured worker is not required to obtain an attorney to handle their claim, it is advisable that injured workers consult an attorney any time a serious injury occurs while at work. The process of a Workers' Compensation case can be long and complicated, and an injured worker who is not represented by an attorney can be at a great disadvantage. The hearings and trials during a case are held at the Workers' Compensation Board before a Workers' Compensation Law Judge and against skilled representatives and attorneys for the insurance companies, who are working to protect their interests. An injured worker who chooses to navigate the process alone without an attorney risks forfeiting some of their rights and benefits.

6. What are the rates for Workers' Compensation?

Date of Accident Maximum Weekly Rate:

  • 7/1/1992-6/30/2007 2/3 average weekly wage up to $400
  • 7/1/2007-6/30/2008 2/3 average weekly wage up to $500
  • 7/1/2008-6/30/2009 2/3 average weekly wage up to $550
  • 7/1/2009-6/30/2010 2/3 average weekly wage up to $600
  • 7/1/2010-6/30/2011 2/3 average weekly wage up to $739.83
  • 7/1/2011-6/30/2012 2/3 average weekly wage up to $772.96
  • 7/1/2012-6/30/2013 2/3 average weekly wage up to $792.07
  • 7/1/2013-6/30/2014 2/3 average weekly wage up to $803.21
  • 7/1/2014-6/30/2015 2/3 average weekly wage up to $808.65
  • 7/1/2015-6/30/2016 2/3 average weekly wage up to $844.29
  • As of 7/1/2016 2/3 average weekly wage up to $864.32

Your average weekly wage is calculated using the 52 weeks prior to the date of accident and is the gross wage, that is, before taxes. Payments in compensation are calculated based on your average weekly wage, your degree of disability according to your doctor, and the degree of disability according to the insurance company's consultant. If your employer continues to pay you full wages during the period when you are out of work with a disability, they will have an opportunity to request for reimbursement from your awards for wages paid.

7. What if my doctor says I have a partial disability with restrictions?

When your doctor indicates that you have a partial disability with restrictions, you then have an obligation to look for work within the restrictions given to you by your doctor or find out if your employer offers light duty. The Workers' Compensation Board has set up strict rules about your obligations regarding a work search and the insurance company will more than likely try to suspend your payments if you cannot prove that you are meeting those obligations.

8. What if I have returned to work light-duty because of my disability, but I am making less money?

If you have returned to work and are making less money than your wage at the time of the accident because of your injuries, you may have a reduced earnings claim. Injured workers who have an ongoing disability but return to some work at reduced earnings should be entitled to receive two-thirds the difference between the wage at the time of the accident and current earnings.

9. Should I sign forms and questionnaires sent by the insurance carrier or speak to their investigators?

If you are represented by Terry Katz & Associates, PC and you receive phone calls, visits, or questionnaires from the carrier or their investigators, you should immediately indicate to them that you are represented by our firm and refer them to our office. Remember that while some examiners or adjusters from the carrier may be friendly, they are certainly not your friend. Their job is to limit the amount of money that is paid out on your claim.

10. Do I have to go to the independent medical examination (IME) requested by the carrier?

Yes. The carrier has the right to obtain an opinion from their own consultants on your diagnosis, degree of disability, and need for treatment. The carrier should give you at least two weeks notice to attend the appointment with their doctor and it should be in a convenient location to your home. You do have a right to videotape this examination and we recommend that you do so. Although their consultant is labeled as an independent medical examiner, he is certainly not independent because he has been hired by the carrier.

11. My doctor has requested certain tests or procedures and I am waiting for authorization. What do I do?

If your doctor is requesting authorization for treatment for your knee, shoulder, neck, or back, the doctor must refer to the new Medical Treatment Guidelines that became effective on 12/1/10 to determine whether the treatment is within the guidelines and if the procedure or treatment is considered authorized without prior approval. If the procedure or treatment is beyond the guidelines, the doctor must complete the appropriate forms to request authorization.

If your doctor is requesting authorization for treatment for sites other than your knee, shoulder, neck, and back that costs less than $1,000.00, there is no need to obtain authorization from the carrier. If the treatment or test costs more than $1,000.00, they must submit the appropriate request form. The carrier has thirty days to answer the doctor's request for authorization and either deny the request or approve it.

All of the authorization request forms are detailed and require accurate and thorough completion in order to be considered by the Workers' Compensation Board. They must be sent directly to the carrier, the Workers' Compensation Board, and the Claimant's attorney. If the carrier has not responded timely, there are procedures to have the Board authorize the treatment. If the carrier denies the treatment, litigation may be required.

12. What should I do if I continue to receive medical bills for the treatment for my work-related injury?

Doctors, hospitals, and other medical facilities are not supposed to bill a Claimant directly for treatment for work related injuries. If you are represented by Terry Katz & Associates, PC and receive a medical bill from the healthcare provider or from a collection agency, we customarily address this issue by sending out letters to healthcare providers, collection agencies, as well as the carrier to get these bills paid. It is illegal for the healthcare providers to bill you directly.

However, if the medical bills are for unrelated medical issues or for sites that have not yet been established in your Workers' Compensation case, the carrier will continue to object to them and the healthcare provider will continue to seek payment. In this case, we need to find out definitively if these sites are related to the case and if so, try to get them established based on your doctors reports. Sometimes, the only reason you are receiving these bills is because the provider has not been given the Workers' Compensation carrier's information, so we recommend that you notify them verbally of the carrier's name and your case number so that they can proceed to bill properly.

Things to Remember:

  • Your Workers' Compensation case is not a Personal Injury case. There are no payments in a Workers' Compensation case for pain and suffering.
  • Medical reports within at least every ninety (90) days are needed to document your disability during any period that you are out of work or working at reduced earnings.
  • Work includes any work, on the books, off the books, for friends or family, for your own business, for barter/exchange, or even volunteer work.
  • Even if you are not losing time from work, you may be entitled to an award for permanent damage for injuries to your extremities (shoulder, elbow, hand, fingers, hip, leg, knee, foot, toes).
  • Don't rely on the insurance company for answers to your claim; the Insurance company has their own agenda of limiting payouts on your case. Contact Terry Katz & Associates, PC for a free evaluation of your claim.

Terry Katz and Associates, P.C. is a law firm exclusively dedicated to handling cases in Workers' Compensation and Social Security Disability. Our attorneys are extremely knowledgeable and well skilled at tackling the complexities involved in these types of cases, and we work hard on a daily basis to advocate for our clients' best interests. Terry Katz, founder of Terry Katz and Associates, has been successfully representing injured workers since 1992 while earning a great reputation in the field, among colleagues and clients alike. Our mission is to protect our client's rights while fighting for the maximum compensation each individual client is entitled to under the law. We provide guidance throughout each step in the process, advice regarding various options along the way, and experienced representation before the Workers' Compensation Board.