Frequently Asked Questions of Workers Compensation

Although most people have heard of workers’ compensation insurance, most people do not need to know how it works unless they have a potential work-related injury or illness. Unfortunately, that often means that an injured individual will have to navigate the world of workers’ compensation while handling a work-related injury or disease. This can make it more difficult to apply for workers’ compensation insurance and to maximize your claim. That is why our experienced Bronx Workers’ Compensation Lawyers, have created this frequently asked questions (FAQ) page to help answer the most common questions surrounding workers’ compensation insurance.

Each common question is summarized below with a link to the applicable page for more information. If you have further questions regarding your workers’ compensation claim in New York, please contact O’Connor Law to learn more about your rights and how we can help you and your family maximize the amount of compensation you may be entitled to under the law.

Our compassionate and experienced workers’ Compensation Lawyers in Bronx, NY, can help answer your questions, advise you of your rights, and handle your claim. At the same time, you focus on recovering and being with your family. To learn more, please contact us today at (914) 595-4502 to schedule a FREE consultation.

Our Workers’ Compensation Lawyers in the Bronx Answer the Most Frequently Asked Questions Regarding Workers’ Compensation in New York

Workers’ compensation, or workers’ comp or WC is a benefits program administered through New York State. Claims are handled by an insurance carrier selected by an employer who pays the claims. Disputes over claims and benefits are handled by New York State and the Workers’ Compensation Board, which has administrative law judges (ALJs), a panel, and other administrative services to help resolve disputes, administer claims, and otherwise facilitate the claims process.

The Board also promulgates rules and regulations, as well as guidance and interpretation of those rules and regulations, to help claimants, employers, and insurance carriers comply with the overall purpose of the New York workers’ compensation laws. Where a dispute cannot be administratively resolved, a claimant always has the option to seek review from the courts.

FAQ 1: What is Workers’ Compensation in New York?

Workers’ compensation is a type of insurance policy for employers and employees. Nearly all employers are required to carry workers’ compensation insurance policies, and almost all employees are covered by the policy. The purpose of workers’ comp is to provide medical bills, lost wages, and other benefits for workers who suffer a work-related injury or work-related illness in a timely and fair manner. The goal is to prevent workers and their families from suffering financial hardship due to a work-related injury or illness while also protecting employers from excessive lawsuits.

To that extent, workers’ comp is a no-fault system, meaning the comparative fault of an injured or ill worker is generally irrelevant to recovering benefits. In return, workers’ compensation benefits are the “exclusive remedy” for injured workers. This means that an injured worker cannot commence a negligence action against an employer or co-worker except in extremely rare circumstances. Injured workers may, however, commence a third-party claim against a defendant who is not an employer or employee.

In general, workers’ compensation benefits can be obtained by nearly all workers, including part-time, seasonal, temporary, and brand-new or terminated/retired/quit employees. Benefits typically cover up to two-thirds (2/3s) of lost wages and medical bills and can overcompensate for injuries or illnesses resulting in permanent disability. Families who lost a loved one may also be entitled to recover compensation through a death benefit.

FAQ 2: Do I Need a Workers’ Compensation Law to File My Workers’ Compensation Claim in Bronx, NY?

No, it is not required to have a lawyer handle your workers’ compensation claim in New York. However, it is strongly advised to have a lawyer help you. That’s because a workers’ compensation claim is unlike a health insurance dispute or a fender-bender car accident claim. Instead, a workers’ compensation claim can have serious and permanent ramifications on an injured worker and his or her family. This is particularly true if a worker-related injury or illness results in permanent damages and disability or if a loved one passes away.

There are many other reasons why having a workers’ compensation lawyer in the Bronx to represent you for your claim just makes sense, too. This shouldn’t be when you try to cut costs to save money (although a WC lawyer is very affordable).

For instance, the insurance carrier will be represented by a lawyer. The Workers’ Compensation Board will also have a lawyer assigned to the file. That means you would be the only party to the WC claim without a lawyer – a severe disadvantage.

You may need to make legal arguments when it comes to going in front of an administrative law judge (ALJ). You may also need to cross-examine the independent medical examiner (IME) or present evidence. This can be very difficult to do, especially if you do not have experience handling claims like this.

Furthermore, if your claim is denied, you will need to present legal arguments to overturn that adverse decision. It may actually be harder to do that if you have been denied, as the standard of review is more difficult to reverse or overturn. That means if you try to handle the claim yourself at first and get denied, turning to a lawyer may be too late to repair the damage done.

FAQ 3: What do I need to show to obtain workers’ compensation benefits in New York?

You will need to submit a significant amount of paperwork in the form of affidavits and medical records in order to obtain workers’ compensation benefits in New York. Although some of the forms and paperwork may appear to be standard, and the Workers’ Compensation Board has streamlined the application process, mistakes made can result in the denial of your claim. Not only could this delay your claim, but it could also make it harder to reverse/overturn.

Some of the most basic information that you will need to submit is an affidavit from a healthcare provider explaining your injury and that it is causally related to work. You will need to support this affidavit with medical records. You will also need to submit documentation establishing your employment and lost wages. In cases where your claim is contested, you may need to submit legal memoranda.

FAQ 4: What benefits can I obtain from workers’ compensation in New York?

There are many different workers’ compensation benefits that a claimant may be entitled to in New York. Generally, the most common benefits are for medical bills and for future medical expenses. Individuals are also entitled to up to two-thirds (2/3s) of lost wages. These are the main benefits that most injured or ill workers will recover from WC.

However, there are other benefits that may apply. This includes compensation for permanent injuries or disability through a schedule loss of use or nonschedule loss of use claim. These types of claims are for a permanent disability caused by a work-related injury or illness.

In addition, a family may be entitled to death benefits if a loved one is killed due to a work-related injury or illness. These claims are more complicated and often involve complex calculations depending on average weekly wages and who the dependents receiving benefits may be under New York law (i.e., spouse, children, or a combination, or neither and a different dependent).

FAQ 5: Am I entitled to workers’ compensation benefits if I have a prior injury or preexisting injury?

Yes, a worker suffering a work-related injury or illness may be entitled to recover workers’ compensation benefits even if he or she has a prior injury or preexisting injury. However, an injured worker may not be entitled to recover the same amount of compensation or the full amount of compensation that an individual without a prior injury or preexisting injury may be entitled to recover. That is because these are handled as already causing some percentage of disability which is subtracted from your claim.

In addition, a workers’ compensation carrier and its adjuster will often vehemently oppose any type of claim that involves a prior injury or preexisting injury. The reasoning for opposing a claim is to be able to lower the total amount of compensation that they owe a claimant, as a prior injury or preexisting injury can lower the total amount owed.

FAQ 6: How is a schedule loss of use award calculated in New York?

The calculation to determine a schedule loss of use award is complicated and often requires an experienced workers’ compensation attorney to ensure that your rights to compensation are well-protected. This is because a schedule loss of use award is used when a worker suffers a permanent injury which results in a permanent disability. This disability could be something that greatly impairs a person’s life, affecting how he or she can live and work. Thus, mistakes in handling or calculating a schedule loss of use award in New York can be catastrophic.

There are several factors that go into calculating a loss of use award. The first is the percentage of disability or loss of use for the subject body part. This is what a doctor will determine your disability loss to be. The total percentage is than taken off the maximum amount of weeks for the body part. For example, an arm is 312 weeks. A 100% loss would be 312 weeks, a 50% loss would be 156 weeks, and so on, based on the percentage loss of use.

Next, the average weekly wages would be calculated. These wages would be used to determine how much of a disability benefit a person may recover. Although calculating a salaried employee is easier, a non-salaried employee would have his or her last 52 weeks of wages averaged.

Finally, the average weekly wages would be multiplied by the total number of weeks of disability. That total would be the amount that an injury worker would recover. Although this formulaic approach sounds easy – and it can be – there are many areas where the workers’ compensation adjuster or attorney could manipulate numbers to lower their liability. This means lowering the amount of compensation that you may be entitled to.

FAQ 7: How is a nonschedule loss of use award calculated in New York?

 The calculations for a nonschedule loss of use award in New York can be complicated and often contain many areas which may result in errors or underpayments. That is because, unlike a schedule loss of use, a nonschedule loss of use is for injuries and illnesses that are not enumerated by the Workers’ Compensation Board in a chart. Thus, an injured or ill worker will need to establish that the injury or condition qualifies for a nonschedule loss of use.

Next, a claimant will need to establish average weekly wages and the level of disability. Although establishing average weekly wages may be easy to do, it can be complicated if a worker is not a salaried employee. However, must challenges to a nonschedule loss of use claim involve determining the level of disability that an individual has and whether it is causally related to a workplace accident or illness.

This is often done through expert medical testimony, sometimes in the form of an independent medical examiner (IME) or sometimes from treating physicians. Although all medical physicians have an ethical and medical obligation to be fair and forthright with their opinions, many IME doctors have longstanding relationships with workers’ compensation carriers – who pay them to perform these reviews. As such, it is important that an experienced workers’ compensation lawyer represent a claimant to ensure that a fair review of his or her claim is done.

If you or a loved one suffered any type of permanent injury after a workplace accident or due to a workplace illness, call our experienced workers’ compensation lawyers in Bronx for help. To learn more about nonschedule loss of use awards in our full FAQ answer here, or ask us during a free consultation by sending us a private message through our “Contact Us” box available here or calling us at (914) 595-4502.

FAQ 8: Does workers’ compensation offer a death benefit for a loved one killed in a work-related accident?

Yes, New York workers’ compensation laws afford families who lose a loved one to a work-related accident or illness a death benefit. Although the Workers’ Compensation Board has streamlined the application process, the loss of a loved one can be devastating and make the process to apply significantly more difficult. In addition, mistakes made during the application process can be difficult to correct – even being final. Delays in appealing an adverse decision may also be permanent, meaning unjust decisions may be uncorrectable.

Therefore, families who lose a loved one in a work-related accident or due to a work-related illness should call an experienced workers’ compensation lawyer in the Bronx for help. That is because surviving spouses, children, and other dependents may be entitled to up to two-thirds (2/3s) of a loved one’s lost wages. These death benefits continue until a spouse is married or until the beneficiaries pass away. Thus, mistakes in calculating or awarding these benefits can be significant.

FAQ 9: What do I do if the carrier denies my workers’ compensation benefits claim in New York?

If your workers’ compensation claim is denied, do not panic. Oftentimes, there are ways to fix a denial of a WC claim. This is particularly true if you hire an experienced workers’ compensation lawyer in the Bronx such as ours. That is because, once your claim has been denied, you have a certain amount of time to challenge the denial through an appeal. If you fail to timely do that, your claim may be forever barred.

In addition, challenging the denial of a workers’ compensation claim will usually require legal arguments and memoranda in support to challenge the decision of the carrier, Workers’ Compensation Board, and ALJ. This can be complicated for a layperson – especially a layperson who is suffering from a disabling injury or illness. Thus, having an experienced lawyer on your side can mean the difference between recovering the compensation that you deserve, and losing your entire claim unjustly.

If you or a loved one had a workers’ compensation claim denied in New York, call our experienced workers’ compensation lawyers in the Bronx for help. To learn more about what to do after a denial, read our full FAQ answer here.

FAQ 10: What happens if my WCB appeal is denied or if the carrier appeals a decision awarding WC benefits to me?

 Delays obtaining your benefits and the possibility that your workers’ compensation award could be vacated, are all very real risks whenever the WCB or carrier appeal an award to you. This is why it is essential that you hire an experienced workers’ compensation lawyer in the Bronx to represent you and your family.

Additionally, whenever an appeal of your award is made to a higher administrative unit or to the Appellate Division, Third Department, strong legal arguments, briefs, memoranda, and other documents in support will be required to justify your position. An appeal is not like a normal application, and requires different materials in order to establish that the initial award was accurate or not. Thus, individuals who do not have a lawyer on their side to protect their award will be fighting an uphill battle against the Workers’ Compensation Board and carrier who have lawyers.

Your Trusted Workers’ Compensation Lawyers in Bronx, NY

If you or a loved one have had their WC claim or WC award appealed, call our experienced workers’ compensation lawyers in the Bronx for help. The stakes can be high, and the playing field may be uneven if you are not represented. Read our full FAQ answer here to learn more about what happens during an appeal. You could also ask us your questions during a free consultation by dialing (844) 692-6671 or sending us a private message through our “Contact Us” box available here.