New York Workers' Compensation

NEW YORK

WORKERS’ COMPENSATION If You Find Yourself the Victim of a New York Workplace

Accident or Illness, a Basic Understanding of the New York Workers’ Compensation System Will Come in Handy

http://www.simgil.com/

New York Workers’ Compensation www.simgil.com 2

Most of us leave for work in the morning with every intention of returning home

at night without incident. Unless you work in a particularly dangerous profession

you probably don’t worry overmuch about the possibility of being injured while at

work; however, workplace accidents do happen far more frequently than most

people realize. Illnesses that are caused by exposure to toxic substances in the

workplace also cause workers to become ill at an alarming rate. Despite efforts by

both state and federal agencies to reduce the number of workplace injuries and

illnesses throughout the United States you still stand a good chance of suffering a

work-related injury or illness at some point in your lifetime. If you do find

yourself the victim of a New York workplace accident or illness, a basic

understanding of the New York workers’ compensation system will come in

handy.


WHAT IS WORKERS’ COMPENSATION?

Prior to the implementation of state workers’ compensation systems throughout

the United States workers injured on the job, or who became ill as a result of their

job, were forced to pursue compensation through the traditional tort system by

filing a personal injury lawsuit. Not only did this mean that compensation was

significantly delayed, causing extreme financial hardship, but a worker was

required to prove negligence (fault) on the part of the employer to be entitled to

compensation at all. Not surprisingly, workers were commonly left without any

realistic recourse for serious, even fatal, injuries and illnesses. The concept of

workers’ compensation was developed as a way to provide compensation for

workers without the inherent delays of the traditional tort system and without the

need to prove negligence.

Today’s workers’ compensation system provides benefits to injured/ill workers

when certain eligibility guidelines are met. Most importantly, the workers’

compensation system is a no-fault system, meaning that a worker is not required

to prove that the employer did anything wrong to be entitled to benefits. Except

in rare situations, workers’ compensation is the exclusive remedy for workplace

accidents/illnesses, meaning that a worker cannot sue an employer in a

traditional personal injury lawsuit if the injury/illness is covered by workers’

compensation insurance.

WHO IS COVERED BY WORKERS’ COMPENSATION IN NEW

YORK?

The New York Workers’ Compensation Law, or WCL, requires almost all workers

to be covered by workers’ compensation, including, but not limited to:


Workers in all employments conducted for-profit, including part-time

employees, borrowed employees, leased employees, family members and

volunteers working for a for-profit business.

Employees of counties and municipalities engaged in work defined by the

law as "hazardous".

Domestic workers employed forty or more hours per week by the same

employer, including full-time sitters or companions, and live-in maids.

Farm workers whose employer paid $1,200 or more for farm labor in the

preceding calendar year.

Public school teachers, excluding those employed by New York City, and

public school aides.

Employees of the State of New York, including some volunteer workers.

Although the New York WCL is a comprehensive law that covers most workers,

there are some groups of workers who are not covered under the law. Examples

of workers who are not covered by the New York WCL include:

Volunteers for non-profits

Clergy

People who are covered by another workers’ compensation law, such as one

of the many federal workers’ compensation acts.


People doing casual chores

Sole proprietors and partners

Independent contractors

When there is confusion as to whether workers’ compensation was required or

not it usually stems from the distinction between and employee and an

independent contractor. Not surprisingly, employers often try to characterize the

relationship as employer/independent contractor while a worker may argue that

he/she was an employee and, therefore, entitled to workers’ compensation

coverage. When a dispute arises regarding a worker’s status for purposes of

workers’ compensation a workers’ compensation judge may have to decide the

issue. Factors that are typically used to by a judge when determining a worker’s

status include:

Right to control

Character of work

Method of payment

Furnishing equipment/material

Right to hire/fire

WHAT BENEFITS ARE AVAILABLE?

Workers’ compensation benefits are divided into two categories – medical and

wage replacement benefits. Medical benefits cover the reasonable costs


associated with treating your injury or illness. Wage replacement benefits are

intended to cover your lost income during the period of time you are unable to

work because of your injury or illness.

Depending on the severity of your injury/illness you could initially be entitled to

temporary partial or temporary total disability benefits (TPD or TTD). If your

doctor certifies that you are unable to perform any type of work you will receive

TTD benefits. If you are able to perform some work but your disability prevents

your from earning what you did before the accident/illness you will receive TPD.

If it is determined that you have suffered a permanent injury or illness that

impacts your earning ability you may eventually be moved from TPD/TTD to

permanent partial or permanent total disability (PPD or PTD). Your weekly

benefit amount will remain the same but you will be entitled to benefits for a

longer period of time.


In the event that a worker is fatally injured or suffers a terminal illness as a result

of his or her employment, the deceased worker’s survivors may be entitled to

weekly benefits and/or a lump sum cash payment.

HOW MUCH WILL YOU RECEIVE IN WEEKLY BENEFITS?

Wage replacement benefits are not available for the first seven days of your

injury/illness. After that, the amount you receive in weekly wage replacement

benefits depends on your wages

prior to the date you filed your

claim. If you injury/illness

ultimately lasts longer than 14

days you will be retroactively

compensated for the initial seven

day waiting period. Your benefit

amount is calculated using your

average weekly wage, or AWW.

Your AWW is determined by averaging your earnings for the year prior to the

date of the injury or illness. Your weekly benefit amount for temporary total

benefits is two-third of your AWW. For example, if your AWW amount is $650

your weekly benefit amount would be $435.50 ($650 x 0.67 = $435.50). If you

are only eligible for temporary partial benefits the calculations are a bit more

complicated. New York employs both a minimum and a maximum benefit

amount that is based on the New York State average weekly wage from the

previous year.


APPLYING FOR NEW YORK WORKERS’ COMPENSATION

BENEFITS

If you are injured while on the job, or

you believe that an illness is work

related, you should notify you

supervisor and file a workers’

compensation claim immediately. By

law, your employer must provide you

with information about the employer’s

workers’ compensation insurance carrier so that a claim may be filed. In addition,

a C-3 Form should be filed with the Workers’ Compensation Board. Your

employer can either accept the claim or deny the claim. If the claim is accepted

and approved by the WCB, benefits will begin. If your employer challenges the

claim it will be denied by the WCB. You have a right to appeal the decision made

on your claim; however, the farther you move up the appeals ladder the more

difficult it becomes to get a claim approved.

If you have suffered a work related injury or illness in New York it is in your best

interest to consult with an experienced New York workers’ compensation

attorney as soon as possible to ensure that your rights are protected and to

increase the likelihood that your claim will be approved without the need to

appeal. At Simon & Gilman, LLP, we can evaluate your workers’ compensation

claim and advise you as to your rights.


REFERENCES

Workers’ Compensation Board, Injured on the Job?

New York Workers’ Compensation Board, Workers’ Compensation

New York City Bar, A Guide to Workers’ Compensation in New York

http://www.wcb.ny.gov/content/main/Workers/InjuredOnTheJob.pdf

http://www.wcb.ny.gov/content/main/Workers/Workers.jsp

http://www2.nycbar.org/Publications/WorksCompensation.htm


About Simon & Gilman, LLP

Simon & Gilman is the premier law firm in the Queens and New York Metro area. They have expertise in many areas of practice and can help you resolve legal issues that you are confronted with. ACCIDENTS We handle all types of injury cases, including automobile accidents, sidewalk and stairway, elevator, escalator, slip, trip and fall cases, bus, train and plane accidents, sporting activity accidents, snow & ice, defective products, medical malpractice, nursing home, hospital, school accidents, work and construction related accidents, and accidents involving New York City, New York State, and the U. S. Government. SOCIAL SECURITY DISABILITY Representing individuals who have applied for, been denied and refused disability benefits. We pursue all levels of appeal through the Hearing level, Appeals Council and, if necessary, to the Federal Courts CRIMINAL DEFENSE Representing individuals who have been arrested or about to be arrested, from violations to misdemeanors to felony charges, from arraignment through trial, if necessary including domestic violence, assault, shoplifting, driving while intoxicated (DWI), crimes against the person and/or property. WILLS/TRUSTS/ESTATES Representing you and your loved ones in the preparation of Wills, Living Wills, Trusts, Health Care Proxies, Powers of Attorney, and estate planning.Probate and Administration of estates; contested will proceedings and all phases of Surrogate’s Court actions. Arrangements can be made to come to your home or hospital if necessary to prepare any such documents. FAMILY LAW Though often emotional, your case is handled with sensitivity and compassion. Includes such matters as: annulment, divorce, separation, custody, visitation, support, adoption, pre-nuptial/post-nuptial agreements, paternity, Orders of Protection, name changes, Family Court & Supreme Court matters. REAL ESTATE Representing buyers and sellers in both residential and commercial matters, condominiums and cooperatives. Landlord/tenant matters involving non-payment, holdovers and unlawful occupancies.

Education

New York Workers' Compensation