Workers' Compensation FAQs

What is workers' compensation?

Workers' compensation is a system established under New York law to assist injured workers in the payment of causally related medical bills and lost wages. Under that law the state of New York has established the workers' compensation Board to oversee the day-to-day aspects of all claims.

How long do I have to be employed in order to be covered by workers' compensation?

There is no time requirement for being covered by workers' compensation, it is only necessary that you be an employee. Some employees have filed a claim after decades of service, while some have been injured within minutes of being hired and have received compensation benefits.

What do I need to show to obtain workers' compensation benefits?

In order to obtain benefits, you need to document that you were an employee; that an accident occurred during the course of your employment (or you developed an occupational disease during the course of your employment); that you gave notice to your employer within 30 days of the accident; and that you filed your claim for benefits within two years of the date of the accident. There are some exceptions to these requirements, which should be discussed with your attorney.

Can a carrier legally deny me workers' compensation benefits?

Yes, but they must state the reason for doing so.

If the carrier denies me benefits am I entitled to go to court?

You are entitled to have your case resolved by the Workers' Compensation Board. In most instances, this will require at least one hearing before an administrative law judge who has the authority to make determinations, establish claims and direct payments.

If the administrative law judge directs the carrier to pay my medical bills and to pay me compensation benefits, and the carrier still objects, what happens?

If a carrier believes there are grounds for an appeal, they may file it within 30 days to the Workers' Compensation Board. Pending the resolution of that appeal, in most instances, the carrier is not required to pay medical bills or make biweekly payments to the claimant as directed by the administrative law judge.

The appeals council will give the injured worker an opportunity to submit a responding memorandum in opposition to the objections set forth by the carrier in their appeal. It is highly recommended that the claimant be represented by an experienced workers' compensation attorney in these instances.

Am I required by law to have an attorney?

No. But bear in mind that the insurance carrier is mandated by law to have an attorney or a licensed representative appear at every hearing. These attorneys and licensed representatives often have years of experience, have handled thousands of hearings and are well-versed in representing the carrier's point of view. While there is no similar statute requiring the claimant be represented, we highly recommend they retain counsel. Silverman, Silverman & Seligman, P.C., has decades of experience representing claimants.

How does the compensation board calculate my weekly payment?

Payments to the claimant of workers' compensation benefits are based upon the degree of disability and the average weekly wage (AWW). This AWW is a weekly average of the claimants' earnings for the year prior to the date of accident.

As an example, if a claimant is injured on October 14, 2009, then the administrative law judge would base the finding of average weekly wage on the claimant's earnings between October 14, 2008 and October 14, 2009.

There are special provisions under the law to handle situations where the claimant has not been employed for a full year. For total disability, the claimant is entitled to two-thirds of his or her average weekly wage with a current maximum of $550 per week.

The carrier argues that my condition was pre-existing. I don't think that it was, but even so, I never had these symptoms. What should I do?

This question of a pre-existing asymptomatic (unnoticed) condition that is made symptomatic by a work-related accident has been decided by both the Appellate Division of the Supreme Court of New York state and the New York state Court of Appeals.

While there may be exceptions, the general conclusion is that if you had a pre-existing condition that was not causing you problems in a compensation sense (affecting your ability to do your job) then there will be no apportionment of the benefits to you and the pre-existing condition will not be considered in the calculation of compensation payments.

Can I have a new accident to the same part of my body?

Certainly. There may be a question as to whether or not new symptoms are the result of the prior accident or a new accident but there is certainly nothing legal that prevents you from having more than one claim to the same body location.

My doctor has requested authorization for treatment that has been denied by the carrier. What can I do?

If the carrier wants to object to certain medical treatment, they must do so based upon a report from their medical consultant indicating that the treatment is either not needed or not causally related to this accident. In the event they obtain such documentation this question will normally be presented to an administrative law judge who may require the deposition (testimony) of the doctors involved.

Can I collect workers' compensation and Social Security Disability benefits at the same time?

Yes. If you qualify, you may collect both workers' compensation and Social Security Disability benefits. While workers' compensation is not reduced because of Social Security Disability payments, your Social Security Disability payments may be reduced because of your workers' compensation benefits.

In such a situation, it is often advisable to discuss with your attorney the possibility of a settlement of your compensation claim under Section 32 of the workers' compensation law. In addition to the settlement with the compensation carrier, this would normally allow your Social Security Disability benefits to resume at the maximum amount.

What is the difference between workers' compensation and New York state disability benefits?

Disability benefits are for injured men and women who suffer a nonwork-related injury. Workers' compensation benefits are for work-related injuries.

Can I collect both?

If your workers' compensation claim is controverted (denied) by the insurance carrier you can usually obtain New York state disability benefits for six months while the claim is litigated. If you are successful with your compensation claim, the benefits received from the disability carrier must be reimbursed to the disability carrier out of your workers' compensation benefits.

Someone told me there is a legal difference between injuries to someone's arm and someone's back. Is that true?

Only when it comes time to determine permanency. In certain body parts (fingers, toes, hands, feet, arms and legs), as well as hearing and vision, the court determines a "schedule loss of use," which determines the number of weeks of benefits to be received by the claimant. From this calculation, the carrier takes credit for payments already made and any balance is paid to the claimant.

Injuries to one's neck or back often result in a finding of a permanent partial disability, which, until recently, had no time limits for the payment of benefits while the claimant was out of work or working at reduced earnings due to disability. However, recent statutory changes have now put a cap on the maximum amount of benefits receivable by the claimant.

Should I settle my workers' compensation case?

This is one of the toughest questions in workers' compensation and should not be undertaken lightly. In virtually all instances, the settlement of a compensation case under Section 32 of the workers' compensation law will conclude the carrier's obligation to pay additional compensation or medical benefits. This should be discussed with your attorney in detail, as there are many factors to be considered, including anticipated future medical expenses, the extent of one's disability, possible anticipated return to work, Social Security Disability benefits, etc. Silverman, Silverman & Seligman, P.C., has a great deal of experience in negotiating settlements on behalf of injured workers. We will be happy to discuss your particular situation in detail with you.

The insurance company wants to send a nurse case manager to visit with me and to attend my doctor appointments. Is this a good idea?

No. Unless there is a particular reason to do so, we recommend that the claimant not accept the involvement of a carrier nurse case manager. Doing so rarely results in any benefits to the claimant, but may result in benefits to the carrier.

What role would Silverman, Silverman & Seligman, P.C., play in my workers' compensation claim?

Having handled tens of thousands of hearings, we are able to step back and see the whole picture.

It is not enough to view your compensation case as a single unrelated entity. Rather, it is important to see how workers' compensation interacts with other benefits, other needs, medical and financial conditions, and the particular desires of the claimant.

Workers' compensation hearings can sometimes seem quite mysterious if you have not had experience. Silverman, Silverman & Seligman, P.C., has decades of experience in taking testimony from claimants and treating physicians, cross-examining carriers, lay witnesses and carrier medical examiners. We believe it is important to keep the claimant involved at all stages so that he or she can knowledgeably participate in any decisions.

Neighbors have told me that investigators have come to their house asking about me. Also, the other day, I think I saw someone in a car taking my picture. Can they do this?

Yes. While they should not have direct contact with you or be on your property, it is legal for the carrier investigators to talk with neighbors and take videos.

Why do they do this?

The carriers do these investigations in an attempt to demonstrate that the claimant is not as disabled as he or she says or is in fact working.

The vast majority of claimants are truthful and properly receiving benefits to which they are entitled. Certainly there are some, however, who attempt to cheat the system and in doing so cast a cloud on all legitimate claimants. The problem is that observed activities can often be interpreted in one or more ways. If you are the subject of investigation, we would highly recommend that you contact our law firm.

What is removal from the labor market?

When a claimant has a partial disability, as opposed to a total disability, he or she has an obligation to look for work within the restrictions set forth by their doctor.

Often, the claimant will be unsuccessful in finding work, but nonetheless retains the obligation to look for employment. If the claimant does not make a documented effort to do so, the carrier will argue that the claimant has been "removed from the labor market."

While there is nothing illegal about this, the carrier is not required to pay benefits if a determination is made that you have failed to seek employment within your restrictions. This claim by the carrier will often result in extended testimony by the claimant and physicians. Again, Silverman, Silverman & Seligman, P.C., highly recommends that you obtain counsel.

I keep hearing on the radio and TV about compensation fraud. Is it a large problem, and how can it affect me?

That depends on whom you talk to. Are there some claimants who are intentionally defrauding the compensation carrier? Definitely, and we do not want to be associated with those claimants. However, the vast majority of claimants are not being fraudulent.

One cannot commit fraud by accident; it is an intentional act. Claimants often respond to written inquiries from the carrier regarding their current activities and indicate that they are not employed. However, the carrier's definition of "employed" and the claimant's definition of "employed" may be different.

For instance, if you're on workers' compensation and babysit for your niece every Tuesday and Thursday, would you indicate that you were "employed" on a questionnaire? Probably not. The carrier however might allege that you are attempting to defraud them and may argue that Section 114a and/or Section 114 of the workers' compensation law is applicable. Section 110a provides that if there is a finding by the Workers' Compensation Board that in fact the claimant was perpetrating a fraud, the claimant will be barred from receiving further benefits.

Even more significantly, under Section 114 of the workers' compensation law, this case may be referred to the local prosecutor's office for filing a criminal complaint. Silverman, Silverman & Seligman, P.C., recommends that your counsel review every document that you intend to return to the carrier prior to doing so.

Can an employer be charged with fraud?

Yes, and almost everyone agrees there is far more employer fraud in New York than there is injured worker fraud.

What is the maximum weekly payment that I can receive on workers' compensation?

Currently, the maximum is $550 per week. Under the new statutes, this will change and will ultimately be linked to a cost-of-living index in New York.

Can I sue my employer?

No. The workers' compensation law is your exclusive remedy, even if your employer is negligent. However, while you cannot sue your employer or a fellow employee, you may bring a legal action against any third party that negligently brought about your injury.

For example, if an employee of the Acme delivery service is making a delivery at the Jones hardware store and slips on water that should not have been present on the floor, he may not sue the Acme delivery service but he may be able to sue the Jones hardware store.

There are many rules and regulations involving whom you can sue, how quickly you must sue them and the manner of bringing that lawsuit. If you have been injured during the course of your employment by a third party other than your employer or a fellow employee you should bring this to the attention of Silverman, Silverman & Seligman, P.C., so that the possibility of a lawsuit might be investigated.

Does my employer have to pay my regular health insurance premiums while I am out on workers' compensation?

There is nothing in the workers' compensation law that requires the employer to do so. However, many employers offer an employment benefit by making such payments at least for a short period of time.

Can I be let go by my employer while I am out on workers' compensation?

Yes, but this is rarely the case in the short term. More likely, the employer wants you to return to work before you are cleared by your doctor. However, open positions need to be filled and your employer may in fact hire someone else to do your former job.

Does my employer have to give me light duty or change my job in accordance with the restrictions that were placed upon me by my doctor?

The short answer is no. However, employers value good employees and will often try to have you return to work despite not having a legal obligation to do so.

How important are medical reports and how often do I need to provide them?

Medical documentation of your disability is perhaps the most important aspect of your workers' compensation claim. If you're out of work and claiming benefits, you should be seeing your physician every four to six weeks, and your physician should be filing reports with the Workers' Compensation Board, the compensation carrier and your attorney if you are represented.

Being noticeably disabled, in the absence of a medical report documenting that fact, will not be sufficient. Having a good reason as to why medical evidence of your disability is not available is not the same as having that evidence.

Perhaps the greatest single reason for the termination of claim benefits is the failure to produce up-to-date medical reports documenting continuing disability. Be careful. Medical reports are the lifeblood of your claim.

Can I collect both workers' compensation benefits and unemployment benefits at the same time?

If a claimant is partially disabled as opposed to totally disabled, that individual may be entitled to receive both workers' compensation and unemployment benefits.

What obligation do I have when I contact Silverman, Silverman & Seligman, P.C., to discuss my case?

None. You can contact us in a few different ways, but most easily by phone at 518-631-4521.

It is our policy that every phone call from a claimant is put through to an available attorney. If an attorney is not available, we will arrange for an attorney to contact you at your earliest convenience. You can then discuss the details of your particular case so we can determine whether we can be of assistance to you.

You can also contact us via this website and provide us information on your new injury claim. It is our policy to review your case and get back to you within 48 hours.

What if I already have an ongoing claim?

Simply fill out the inquiry form on this website, and we will then forward to you a form 110a for your signature. This will allow us to access your New York state workers' compensation file so we may review it in detail. We will then contact you within 72 hours of the receipt of the 110a and then knowledgeably discuss your case in detail and provide you an informed opinion. Should you not wish to retain our firm, there is no fee or obligation resulting from our review of your file.

What happens if my employer failed to obtain workers' compensation insurance?

Employers are required to have workers' compensation insurance for all their employees. If they fail to do so, they can be personally responsible for medical and lost wage benefits. In such an event, the claimant can receive benefits from the uninsured employers fund, which will then attempt to recover these payments from the uninsured employer.

Ultimately, the claimant will receive the same award, but there can be significant delays. If an employer fails to have in effect the necessary workers' compensation coverage, then the employer cannot take advantage of that portion of the workers' compensation law that prevents the injured worker from suing the employer.

This can be a very complicated situation, and it is highly recommended that the injured worker contacts an experienced workers' compensation law firm.

What if I already have an attorney?

We usually recommend that you not switch attorneys "midstream," but if you have already decided to make the switch, we can discuss with you the substitution of Silverman, Silverman & Seligman, P.C., as your legal representative.

Fees. How often? How much?

It is extremely important to Silverman, Silverman & Seligman, P.C., that you discuss with us any questions you may have regarding legal fees arising out of your claim.

In prior years, claimants attended numerous hearings and the administrative law judge would authorize a fee for the attorney at each of those hearings. Under the new administrative scheme, there are far fewer hearings and the majority of the work is now done prior to the appearance in court.

Any fees paid to our law firm must come out of the money that is "moving" as a result of the hearing. In most instances, this money is being paid to you, the claimant, and hence our fee is deducted from the benefits you receive. The fee must be awarded by the administrative law judge prior to any payment to our office. If there is no money moving on your claim, no matter how long we represent you, there will be no fee to our office.

What is the best thing I can do to ensure that I received my full benefits?

Level the field, and put our experience on your side. Contact our office and give us the opportunity to review your file in detail to see if we can be of assistance.

Disclaimer: Prior results cannot and do not guarantee a similar outcome with respect to any future matter, including yours, in which a lawyer or law firm may be retained.

In the absence of a recovery, no fee will be charged, and you are not responsible to repay Silverman, Silverman & Seligman, P.C., for the expenses and disbursements incurred.

Contingent fee rate is computed after deduction of costs, disbursements and other expenses of litigation.