New York Workers' Compensation is an intricate area of law that is often subject to a number of misconceptions. This site is intended to help readers seeking clarification on the topic of NY Workers' Comp. Whether you are an injured worker lost amidst the complexities of Workers' Comp, a doctor who is not sure how to properly handle a Workers' Comp patient's file, or simply a curious New Yorker who worries about what would happen if you were ever injured on the job, I hope that the content of this site will deliver the answers you seek, even to questions you didn't know to ask.

It is my pleasure to welcome you into the world of New York Workers' Compensation. I hope you enjoy your visit, spread the word, and come back soon.

Best regards,

Camila P. Medici, Esq.

Tuesday, June 21, 2011

Workers' Comp Process in a Nutshell

Although I have published posts on this issue before, it's important to periodically revisit the initial steps of the process so that expectations can be pro-actively managed.  If you are injured at work, here is what you do:
1) Immediately seek medical attention from a doctor that understands Workers' Compensation Claims.  You will only be entitled to benefits from the date in which you have medical evidence of an injury related to work that rendered you unable to work.
2) Notify your employer (preferably your manager or supervisor in writing) that you were injured at work.  Your employer should fill out a C-2 form and submit it to the Workers' Comp Board as well as their Insurance Carrier.
3) Seek help from a Workers' Compensation Attorney or File a Claim on your own with the Workers' Compensation Board by filling out the C-3 form.  You should always get an Attorney because the process is not easy to navigate, relies heavily on established relationships between Attorneys for both sides and respective Judges, and if (when) there is a dispute between your doctor and the Carrier's consultant regarding any aspect of your claim that will require depositions to be conducted, a Judge will direct you to get an Attorney anyway, and by then you may have already compromised your case.

In terms of the time-line, you should expect to spend at least a couple of weeks and sometimes over one month without receiving wage benefits.  That's because receipt of your wage benefits depends on 2 things: 1) the Carrier accepting your claim, and 2) the Carrier receiving the appropriate medical evidence showing a diagnoses, history that the accident happened at work, opinion from the doctor that he believes the work accident caused the injury diagnosed, and a specific degree of disability that will determine your rate of compensation.  If you Claim is initially disputed or if the hospital or doctor does not immediately release your medical reports to the Carrier, you may wait over 4 weeks to start receiving wage benefits.

So what should you do for money until then?  1) you can apply for short term disability through the state, but that in and of itself could take as long as the comp claims process, 2) use money from your savings (if available) and expect to replenish those funds once you start receiving your comp benefits, or 3) rely on the help of family, friends, or community organizations until you start receiving your benefits.

In terms of the life expectancy of your case, before the new December 1, 2010 Guidelines it used to be that any injury to your back and/or neck would take about 2 years from the date of the injury or surgery (if you had surgery) to reach maximum level of medical improvement, at which point you could be classified with a permanent disability or settle, and for extremity injuries (such as shoulders, knees, elbows, hands, feet, etc) it took one year from the date or the accident or surgery (if you had surgery) to reach maximum level of medical improvement, at which point your Orthopedist would evaluate you for a schedule loss of use and you would likely be entitled to a schedule loss of use award.  However, there were plenty of circumstances that changed the reality of those cases, such as additional surgery, returning to work and exacerbation of injuries, that impacted the length of a case.  Also, since for accidents after 3/13/07 Claimants classified with a permanent partial disability would only be entitled to a certain number of years of compensation (as opposed to life-long benefits), Claimant's Attorneys delayed the "starting of the clock" by not classifying those Claimants for as long as they could, keeping them at "temporary disability" status for years.

With the new guidelines Claimants are not entitled to treatment for as long as they used to be.  Now a days treatment is limited to a finite number of chiro and PT sessions as well as only so many consultations with Orthos and Neuros.  This has forced doctors to expedite their course of treatment, immediately trying something new if their current treatment modality was not showing significant improvement, and therefore quickly exhausting most or all treatment modalities in a shorter period of time, thus reaching the conclusion that the Claimant has reached maximum level of medical improvement a lot earlier than before.

The guidelines still call for the same time-frame of 2 years for back/neck cases and 1 year for extremity injuries, however, there is plenty of room to successfully argue that the new guidelines have been able to expedite that process, and therefore there is room to close out cases much earlier than the years before.  For the Claimant, closing out a claim equals freedom from having to constantly go to doctors and chase after their medical records to prove their continued disability, as well as a lump sum that, even if not that much compared to personal injury awards, would enable them to take control of their finances, get a higher return on investment, and move on with their lives.    

Injured on the Way To and/or From Work - Coverage for Outside Workers

As a general rule employees are only covered by Workers' Comp Insurance if they are injured at work while performing their work activities.  There is, however, an exception to that rule: Outside Workers.  An outside worker is someone who does not always report to the same work location.  Whether they are an Attorney that sometimes has to go to Court to represent a Client, an Elevator Mechanic that gets sent to different projects depending on assignment, a doctor who has to go to different hospitals, or a door-to-door salesman who is not an independent contractor, anyone who does not report to one, specific work location is generally considered an outside worker and is therefore covered "door-to-door" (meaning on their way to and from work, while walking, biking, driving, or taking public transit).   Although the law seems clear and therefore benefits should start automatically, it is also the general practice of insurance companies to controvert the claims of outside workers, forcing them to prove that they were outside workers in order to receive benefits.  Generally, upon receipt of the claim stating, for example, that an elevator mechanic was injured on his way to work in a motor-vehicle accident, the insurance carrier will file a C-7 controverting the claim, alleging that the worker is not covered under comp because the accident happened outside of the scope of his employment.  Within a couple of weeks of receiving that C-7 the Board will likely schedule a Pre-Hearing Conference, and both sides are expected to file Pre-Hearing Conference Statements stating their positions.  The workers' Attorney should cite the pertinent case law and describe that the Claimant is what is known in the industry as "an outside worker" and therefore is covered for the injuries resulting from the related MVA.  The Carrier will have to show through testimony or work ledge from that Claimant that he always reported to that location, or perhaps that on the day of the accident he was not scheduled to work.  Otherwise, the Claimant should certainly prevail after testifying to his outside worker characteristics.