Workers’ Compensation refers to coverage for on-the-job injuries or illness. Workers’ compensation is insurance that provides cash benefits and/or medical care for workers who are injured or become ill as a direct result of their job. Employers pay for this insurance, and shall not require the employee to contribute to the cost of compensation.
Here is a list of frequently asked questions about Worker’s Compensation. If you are injured and need medical attention from an injury doctor do not hesitate to walk into one of our locations in New York City. Find a location nearest you and call us to schedule a free ride with one of our trusted drivers.
Workers’ Comp FAQ
Q. Are all disabilities covered under Workers’ Compensation Law?
A. No. Only those disabilities that are causally related to an accidental injury “arising out of and in the course of the employment” or to occupational disease, are compensable.
Q. What if the worker fails to file a claim for workers’ compensation?
A. The worker may lose his/her right to benefits and medical care.
Q. Is it necessary for the worker to retain an attorney?
A. No. W.C. Law Judges may assist a worker not represented by an attorney. An attorney’s assistance may be desirable if the issues are complicated. Attorney’s fees are deducted from the claimant’s award, as determined by a Workers’ Compensation Law Judge. 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 workers’ 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 must a physician request advance authorization for medical care?
A. The law requires a physician to request prior authorization for specialist consultations, surgical procedures, physiotherapeutic procedures, X-rays or special diagnostic laboratory tests costing more than $500 until July 10, 2007. As of July 11, 2007, the special services must cost more than $1,000 before authorization must be requested. However, as of March 13, 2007, insurance carriers are authorized to require claimants to obtain X-rays, CT Scans, MRIs and other diagnostic tests from a provider or facility within the network it has contracted with for such tests.
If the insurance carrier has notified the claimant of this requirement, then the claimant must obtain diagnostic tests from a network facility or provider unless it is an emergency or there is no location within a reasonable distance from the claimant.
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. As of July 11, 2007, the law specifically authorizes pharmacies to direct bill the insurance carrier and requires the insurance carrier to pay for the prescription or reimburse the employee within 45 days of receipt of the claim for payment or reimbursement. It also allows the insurance carrier to contract with a pharmacy or pharmacies and require claimants to use the pharmacy or pharmacies to obtain their prescriptions.
The only exceptions are when a medical emergency occurs and it is not reasonably possible to obtain immediately required prescribed medicines from such pharmacy or pharmacies or the pharmacy or pharmacies do not offer mail order service and do not have a physical location within a reasonable distance from the claimant.
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 for more than 30 days, the doctor may proceed to render the services required for the claimant’s welfare. If the authorization is for a diagnostic test and the carrier has contracted with a network and requires claimants to use the network, the diagnostic test must be obtained from a provider or facility within the network.
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 a claim must file a notice of controversy with the Board within eighteen 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 W.C. Law Judge at a prehearing 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 thirty 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.
Q. What do I need to do if my spouse/parent/child/grandchild(ren)’s has passed away while collecting workers’ comp benefits?
A. Notify the Board and Insurance Carrier¹ immediately and submit (when available) a copy of the Death Certificate.
Q. As a widow/widower, will his/her compensation benefits continue coming to me once they passed?
A. In most cases benefits may stop. The widow/widower must file for a Workers’ Compensation Death claim showing medical proof that the claimants death was related to the established work injury. If the death claim is found compensable, payments may resume retroactive back to the date of death.
Q. What do I need to do if my spouse/parent/child/grandchild(ren)’s death was because of his/her work injury?
A. File for a Workers’ Compensation Death claim by completing and filing a C-62 with the appropriate documentation. You will also need to file the C-64 and, If you have it, file medical evidence from the last treating physician stating how the death is causally related to the original work injury/illness.
Q. What if my Child was killed at work and has no dependents; are there benefits payable for at least funeral expenses?
A. Parents who were not dependent on the deceased would be eligible for a no-dependency award if there were no spouse, children, or other dependent family members. They would also be eligible for up to the maximum allowed under Workers’ Compensation for funeral expenses paid.
Q. I have been approached to consider settling my claim, what do I do?
A. Under the Workers’ Compensation Law, any settlement, whether a stipulation agreement or a Section 32 Waiver Agreement, is a negotiation between you and the Carrier¹. The main difference is that a Stipulation is always subject to modification, with proof and the Boards consent, whereas a Section 32 can never be changed once approved by the Board (see Workers’ Compensation law section 32).
Q. What is a stipulation agreement?
A. This is an agreement between the carrier¹ and claimant which is memorialized in writing on a Board-prescribed form, and placed on the record by the Judge. This agreement is usually to agree on a percentage of a schedule loss of use, level of disability, reimbursements to the employer, and/or what your weekly indemnity benefits will be.
For more information on stipulations, see Board rule 12 NYCRR 300.5.
Q. What is a Schedule Loss of Use Award?
A. This is an award that is issued by the Judge that determines the amount of loss of use you have to the injured body part (Usually limbs/digits). This percentage is determined by medical evidence such as treating doctors’ report and the Independent Medical Examiners report, if any. This award is paid at your total disability rate as applied. This award is set forth in a Board decision, listing amounts as if they were lost wages, whether you have actually lost time or not.
However, once an award is paid, if you have not been out of work for that amount of weeks, it is then considered an advance payment and if you go out of work due to this injury later on, you will not be paid for lost wages until the number of weeks is used up. If you have already been out of work for the amount of weeks of the schedule loss, you will not receive any further payments. But if you are out of work down the road, and used up the weeks of the schedule loss, you may be eligible for further monies.
Q. If I had a Schedule Loss of Use Award can I still treat with my doctor?
Q. What can I include in the Section 32 agreement?
A. The Section 32 agreement is a negotiation; therefore you can include what you feel is in your best interest. There are times when medical is left in and just the monetary value is what is finalized. While many cases are based upon approximately (5) years of payments, remember it is a negotiation. Both parties have to be in agreement before it can be presented to the Board.
Q. What if I settled on a Section 32 and my condition gets worse?
A. You will be responsible for anything related to this injury, no one else.
Q. What if I have extreme financial hardship or need surgery down the road due to the injury I settled with a Section 32?
A. You are solely responsible for any bills related to this injury.
Q. Can I sue someone for my injuries since I settled my case?
Q. What if I have settled my case, but then reinjure myself at work again to the same thing and it is made worse?
A. If this were to happen, you could then file a new claim. If the Judge were to determine that there would be an apportionment between the first injury and the new one, you would only get paid the apportionment amount from the new injury as the first injury case was settled.
Q. Can I file for a Death Claim if my spouse settled his/her case on a section 32 and has since passed away due to the injury/illness?
A. Yes, only if the persons death was related to the actual injury/illness (Please see under the Workers’ section on how to file a Death claim).
Q. What can I do if I disagree with an MOD issued and the Full Board Review is denied?
A. You have thirty days from the denial of the Full Board Review notice in which to file with the Appellate Division, Third Department, of the Supreme Court. This step is outside the Workers’ Compensation System and there could possibly be a fee for filing the appeal. The Supreme Court does have programs in which to file as a poor person. Again, you would need to contact them.
¹ licensed insurance company, third party administrator or self insured employer.
For more information about NY State Workers’ Compensation, visit NYS.GOV.