Answers to Common Questions About Workers’ Compensation
The Workers’ Compensation system is designed to provide assistance to injured employees who are hurt on the job. Benefits include monetary payments for time lost from work while you are recovering from an injury, payments for replacing lost income if you can’t do your old job, and coverage of your medical and prescription costs. While simple in it’s goals, the system can be very complicated, confusing, and frustrating.
The following is provided to answer many common questions about your workers’ compensation case. It is not a substitute for specific legal advice and cannot cover every issue facing you. Feel free to call us if you need any more information.
Filing a claim is easy. There are generally 2 steps that you must complete. First you must notify your employer about you injury as soon as possible as there are very important time limits to be considered. Then you should actually file the claim by completing a board form c-3 and mailing a copy to the Workers Compensation Board. Available . This completes the filing requirements and preserves your rights going forward. You should also see your doctor and make sure that they are filing all medical reports with both the Workers’ Compensation Board and your workers compensation insurance carrier. It is important that your doctor provide a report which documents your condition and indicates whether it is related to work.
The insurance company called to say they are sending someone to my house to check on me what should I do?
This is likely what is known as an alive and well check. An investigator comes to your residence to confirm your identity and make sure that you are “alive and well.” This is mostly an anti-fraud measure to ensure that someone else isn’t receiving and cashing your checks.
If your doctor is keeping you out of work, or if you are able to return to work in some capacity but cannot find work within the work restrictions given to you by your doctor, you may be entitled to receive Workers’ Compensation benefits for lost wages. Once you know that you are unable to return to work you should contact your attorney to let them know that you are out of work and should be receiving Workers’ Compensation benefits.
A non-working person’s weekly compensation check is based on two thirds of their average weekly wages for the year prior to the injury, up to a maximum amount, depending on your date of injury. For example if you were making $900 per week prior to your injury, you could be entitled to up to $600 per week depending on when you were injured. If you made $300 gross per week, your maximum weekly benefits would be $200. There is also a maximum payment rate that varies depending upon the date of your injury.
The Workers’ Compensation system calculates payments to you, if you are temporarily disabled, based upon your medical “degree of disability”. This is a doctor’s rating of your overall ability to work. If the doctor feels that you can not do any type of job, you are 100% or “totally disabled”. We will ask that you be paid 100% of your weekly benefits. If the doctor feels you can do some type of work, within limitations, you will be found to be less than 100% disabled. This is a partial disability. If you are partially disabled you will be entitled to receive a percentage of 2/3 of your prior wages again subject to the maximum rate for your date of injury. For example, if your were injured in 2006 and your pre-injury wages are $1200, and your doctor says that you are 75% disabled you would receive 75% of $800. However, since 75% is $600 and the maximum rate payable for a 2006 injury is $400, you would only be entitled to receive $400. If partially disabled, make sure your doctor gives specific restrictions (for example, how much you can lift in pounds), and a percentage of disability. Typically the doctors use terms such as “mild” (25%), “moderate” (50%) or “marked” (75%) when describing your condition.
If your disability is permanent then a different method is used to determine your percentage of permanent disability. The method of calculating your payment rate is the same, but the source of the percentage will be your loss of wage earning capacity (explained in the permanent disability question) rather than just your medical disability.
After your injury, the first payment is due by the 18th day missed from work, or by the tenth day after your employer learns of your accident whichever is later. Keep in mind however that your employer may deny payment for many reasons.
If you are receiving weekly compensation payments from the insurance company, your checks will generally be sent out every two weeks. However, some companies are better about this than others, and your checks could come to you much father apart. The Workers’ Compensation law requires that they pay you within 25 days after a check is due, so it could be as long as 39 days before you get anything. Unfortunately, there is nothing we can do about this until 39 days have elapsed. Only then can we call them. If your check is late, we can ask for a penalty.
If you have had a hearing which awarded you benefits to be paid, the insurance company must mail your payment to you within 10 days of the date of filing of the “notice of Decision” If they’re late, they must pay you a twenty percent penalty for late payment. To see when your check is due, look at your notice of decision. On the bottom is “Date of Filing of this Decision”. The ten days runs from this date. If the envelope time and date stamp is more than 10 days after this let us know at once, and we will pursue the penalty for you. Keep the envelope and make a copy of the late check for us. Please note however, that if the tenth day falls on a saturday or sunday or on a postal holiday then the insurance company would need to have mailed it on the next business day. Regular installment payments are considered late if they are paid more than 25 days after the due date.
The Workers Compensation system is very dependent upon your doctor providing medical reports describing their treatment and opinions about your injury. In fact, this is probably the single most common cause of problems associated with your case. The law requires your doctor to file reports with the Workers Compensation Board, the insurance company; and to us with very specific information, and within mandated time frames. You can help by reminding your doctor what he or she needs to write and when.
If you are out of work and receiving Workers’ Compensation temporary disability benefits, you MUST see your doctor every 90 days at a minimum and your doctor must state your level of disability in each report they file. If you were previously found to have a permanent partial disability and are receiving lost wage benefits as a result of this you do not need to continue documenting your disability. If you do not have a current medical report documenting your temporary disability the insurance company will try to stop payments to you, and probably succeed.
Every time a doctor files a report on you, it MUST contain the following information:
• Your name and Workers’ Compensation Board case number.
• The date of your accident.
• A diagnosis of your injury.
• A statement saying your treatment is “causally related” to the accident.
• A statement of your level of disability.
If the doctor fails to put this information on his or her report, it is basically worthless to us. Also, the report must be signed by the doctor -– not the nurse or doctor’s assistant.
Many times a doctor will tell you that there is nothing else to be done, and stop seeing you, or refer you to someone else for your long term care (for example, a pain clinic or a physical therapist). Very often, specialists will refuse to provide an opinion on your level of disability. This does not stop the need for ongoing medical reports that include a statement of your level of disability. Generally we tell people to keep seeing their family doctor, or to find a new doctor to make sure the insurance company doesn’t try to stop benefits.
If you are found, by the Workers’ Compensation Board, to be totally disabled then you are under no obligation to look for work. However, if you are partially disabled and receiving benefits you have an obligation to “attach to the labor market.” This is an absolute requirement and we cannot stress the importance of this enough. Under the law, a partially disabled person can only continue to get their weekly checks if they are actively seeking employment, or actively retraining. An adequate job search will prevent the insurance company from arguing that you have voluntarily withdrawn from the labor market and stopping your payments. Keep in mind that while your doctor may tell you that you are totally disabled but the judge may find you to be partially disabled based on conflicting medical evidence or other factors in which case you must still remain “attached to the labor market.”
Alternatively, you can attend school full time, seek retraining, vocational rehabilitation or something of that nature. There are several services that can help you such as Rochester Works or Acces VR.
If you are partially disabled and looking for work please be sure to keep a detailed log of all attempts at finding work. This should include: the name of the potential employer, their address and phone number, the name of the person you contacted (if any), the method of contact, whether you completed and application, whether you had an interview, any follow up action completed (phone calls etc), and the outcome of the contact.
While there is no set number of jobs that you are required to apply for, we recommend that at a minimum your should be applying to several jobs a week and following up with employers every week. This will prevent interruption in your benefits. Always remember that you do not have to secure a job but you do have to seek out work within your work restrictions.
If you return to work you should immediately contact the Workers’ Compensation board and the insurance company who is paying your weekly benefits. If you fail to do this in a timely manner and continue to see payments for lost time from work, you can be charged with Workers’ Compensation fraud (see below) which can result in a temporary or permanent disqualification from benefits, monetary penalties and even criminal charges. You should do this even if you are making much less money than prior to your accident and would be entitled to reduced earnings anyway. Even if you open a business and are operating at a loss you still need to notify everyone if you are working.
If you go back to work following an injury, you should always inform the Workers’ Compensation Board and your insurance carrier as soon as possible (or your attorney if you have one). If you don’t and you continue to receive out of work benefits you could face issues of fraud.
If you return to work after your injury but are making less money because of your injury then you may be entitled to receive reduced earnings payments. If your job cuts your paycheck because you can’t work the hours, transfers you to a lower paying position, or if you’re are forced to get a new job that doesn’t pay as much, you are experiencing reduced earnings. It may be possible for us to get benefits to make up a portion of your lost wages.
If you have reduced earnings, please let us know. We will need your pay stubs showing the loss of income. We will also need a doctor’s report stating that your job change or inability to work your regular hours is caused by the injuries suffered in your case.
You will not get reduced earnings benefits if your loss of income is due to causes unrelated to your injury –- for example, a plant slowdown, seasonal layoff, a transfer for other reasons or you are fired for unrelated reasons. Reduced earnings payments will be equivalent to 2/3 of the difference between what you were making for the year prior to your injury (your average weekly wage) and your current earnings.
You may hear a doctor, judge or attorney mention permanent disability, permanency, PPD or SLU. These are some terms of art that we use to indicate when a disability has stabilized. This means that your disability has leveled off and you will be assigned a SLU, or, in the case of a PPD, a loss of wage earning capacity, or LWEC . Generally you will be assessed for this once your claim is a year old or it has been a year from your most recent surgical procedure.
Schedule Loss of Use is generally used with injuries to extremities (fingers, hands, arms, legs, feet, or toes), vision, or loss of hearing. Your doctor (and potentially the carrier’s doctor) will use certain tests and take measurements and make a determination (based on compensation guidelines) of your percentage loss of use of that injury site. For example, he or she may say you have a 10% loss of use of your hand. The insurance carrier may then have you examined by an independent examiner. After that point a determination will be made of what your loss of use is. At this point the carrier will pay an award based on that percentage. This award will be based on the number of weeks which is awarded for a total loss of use for that body part. A total loss of a hand is 244 weeks so a 10% loss of use would be an award of 24.4 weeks of benefits paid at the total disability rate. You may then elect to receive the schedule loss of in a lump sum or via periodic payments. Keep in mind however that in most cases the insurance carrier gets a credit for the payments that they have made for your lost wages up to the point when your schedule was decided. Once your schedule is awarded you will no longer receive weekly benefits for that injury as the carrier will be entitled to credit lost time against what they have paid you as part of the schedule loss. Your medical bills will still be paid into the future as long as they are medically necessary and related to your original injury.
Permanent Partial Disability is different from a schedule loss of use. This term is used for injuries to the spine, brain, internal organs, or other conditions which cannot be assessed for a schedule loss of use. It can also be applied to injuries of the hands, feet, arms and legs, if the doctor feels your condition is chronic and debilitating. A permanent partial disability will allow you to continue to receive weekly compensation checks for the duration of your disability so long as you are not working or are working with reduced earnings. For injuries occurring after 3/13/07, there is a cap of a number of weeks of benefits that a person with a PPD can receive depending upon the level or degree of your permanent disability. If you are working but making less money, this finding will also allow for reduced earnings payments, as described previously, up to the capped number of weeks. As always, your future medical bills are covered. A permanently partially disabled person will still be required to look for work as described elsewhere. The current process for arriving at a PPD is very complex. Essentially, you will be assigned a “loss of wage earning capacity” which is a combination of three factors; medical impairment, functional ability and vocational/other factors.
Permanent Total Disability is similar to the above, but means that you will likely never be able to return to work again, and you will receive your full weekly compensation check as long as you live. There is currently no cap or limit to permanent total disability benefits, and no requirement to look for work if permanently totally disabled. Keep in mind though that permanent total disabilities are very rare.
From time to time during your case, you will receive a letter from the Workers’ Compensation Board informing you that a hearing has been scheduled. This “Notice of Workers’ Compensation Hearing” will let you know the date, time and location of the hearing. It’s usually about a month from when you get the letter. If we represent you, we will also get a copy of the notice, and we will be there on your behalf. Make sure our name is listed on the notice. If not, call us and let us know.
Please get to the hearing at least 15 minutes before the scheduled time, so that we can meet with you beforehand, unless we specifically tell you otherwise. Also, unless we tell you not to, you must always appear at these hearings –- otherwise your case may be closed. Hearings are held at the NYS Workers’ Compensation Board located at 130 West Main Street, at the corner of Main and S. Washington. Parking is available on the street or in several pay lots within easy walking distance keep in mind that no handicap parking is available so prepare accordingly. Hearings and trials are generally held before an Administrative Law Judge. A court reporter will usually be present, as will a representative hired by the insurance company. You probably will not have to say much, if anything. We will explain to you on what’s going on beforehand, and let you know what to expect. Most hearings are very brief (less than 10 minutes) unless it is scheduled for someone’s testimony. While being before a judge is intimidating, there is nothing to get nervous about. We’ll prepare for the hearing and let you know what to expect. Do not be surprised if you are a little lost during the hearing, compensation has its own language and abbreviations. We will sit down with you afterwards, tell you what happened, and answer your questions.
If you are required to testify during a trial, we ask you to contact us before the trial so we can go over things with you.
You are NEVER responsible to pay for treatment that is related to your Workers Compensation injury or condition unless you have settled your claim via a §32 agreement which closed the medical portion of your claim, or if there is a portion of the bill which is deemed to be unrelated to your claim. If a doctor or hospital sends you a bill for treatment related to your claim you should call us immediately. DO NOT PAY THE BILL!
You are going to be getting a lot of paperwork from the insurance company and Workers’ Compensation Board. Most of it is very confusing. There are some common things you might see. The forms have distinct names and purposes. If we represent you we will get copies of these forms as well, and we will review them to make sure they are accurate.
Add descriptive titles to forms, request for action, objection to medical bill, independent medical exam and first or subsequent report of injury.
RFA-2 (Request for Further Action by Carrier/Employer) – This form is used by the insurance company to request that your case go to a hearing for any reason. This might be a request to modify your payments. It is also used to ask for a conclusion to your case (see permanency) or anything else that requires a judge to decide on. You may need to see your doctor after getting this form. Please call us when you get one of these. An RFA-1 is a similar form, but this is used by us to request a hearing.
C8.1 (Notice of Treatment Issue/Disputed Bill) – This is simply an objection to a medical bill, or the need for treatment. This generally does not require any action on your part. It will either be decided administratively (at which point you can either object to or accept the findings in the decision), or go to a hearing before a judge. If a bill for medical treatment is related to your Workers’ Compensation claim and it is found that the carrier doesn’t have to pay, please keep in mind that you will not have to pay it either as doctors cannot charge you directly for Workers’ Compensation treatment.
IME-5 (Claimant’s Notice of Independent Medical Examination) – This is an appointment letter for an “independent medical examination” with the insurance company’s doctor. You need to keep the appointment unless we tell you otherwise.
IME-4 (Practitioner’s Report of Independent Medical Examination) – This contains the results of the above examination.
C-8/8.6 (no longer in wide usage) – (Notice That Payment of Compensation Has Been Stopped or Modified) This very confusing form was used by the insurance company to detail what benefits you have received and are entitled to. We’ll review it, and take any actions necessary. Just keep it for your records.
SROI – (Subsequent Report of Injury) – This form (filed electronically) will detail payments made in your claim, it will note changes in payments and the relevant information on your claim. These forms are exceptionally confusing and we recommend that you contact us if you need to understand this form.
EC-23 (Notice of Decision) – This is filed by the court after a hearing or finding by the Board. It’s also somewhat confusing. We’ll get a copy and make sure it is accurate. Definitely keep for your records.
C-7, now SROI-04 or FROI-04 (Notice of Controversy): If the insurance carrier is denying responsibility for your claim or denying your claim on factual or legal grounds they will file this form which will include an explanation of why your claim is being denied. We highly recommend that you contact us if you receive one of these forms as you will likely need representation at this point.
Occasionally, the insurance company will ask you to attend a doctor’s appointment with a physician (an independent medical examiner or IME) they have hired. These doctors review your medical file, and perform an examination of you at their office. These exams are generally scheduled every few months, if you are collecting weekly checks. Their doctor will give an opinion in a written report describing your injuries and your degree of disability among other possible things they will address. Frequently their opinion differs from your own doctor, and the company will ask for a hearing to try to modify your benefits, deny authorization for treatment or other things. When you get the report (in about ten days), you may need to make an appointment with your own doctor, and have him or her review and comment upon the IME’s findings. This will help us defend your case.
Among other reasons, an IME may also be scheduled if your doctor gives a permanency opinion, there is a request for surgery, or a request for a medical treatment. The important thing to know is that the insurance company has the right to have you seen, and failure to keep the appointment may delay your benefits. If you can’t make it, immediately call the company to reschedule the date.
Remember that, while their doctor is hired by the company, he is not necessarily the “enemy.” A good report can help you immensely. So, don’t antagonize their doctor or be hostile. Answer his or her questions to the best of your ability. Do not exaggerate or minimize your symptoms. Keep in mind that the exam is limited and may only take a few minutes.
If we represent you, we will also get a copy of the report and we’ll review it.
Keep track of your mileage to and from doctor offices, physical therapists, and hospitals. The insurance company is required to reimburse you per mile traveled. You can also be reimbursed for out of pocket expenses, medications and medical devices like braces or heating pads. Please keep a receipt for any out of pocket expenses related to your claim (you will not be reimbursed for mileage to and from, nor parking at the Workers’ Compensation Board).
You can send the insurance company a list of your expenses for repayment. We recommend you put the date of the trip, where you went and how far it was. For other expenses, list the date and the purchase, and put in a copy of the bill. Make sure you put your name and case number on the list. There is a form available from the Workers’ Compensation Board for this purpose. It usually takes about thirty days before you will see a check for this. If it goes on longer than this, let us know.
Most people don’t know that you can collect unemployment and Workers’ Compensation benefits at the same time. If you are out of work, and considered partially disabled you may be eligible to receive both. You should contact the Department of Labor, and file a claim for unemployment immediately. Keep in mind that, as mentioned above, you will not be eligible for unemployment if you are totally disabled. In order to qualify for unemployment benefits you must be ready, willing and able to return to work.
You may also be eligible for Social Security Disability, private disability benefits (if you purchased a policy on your own or through your employer) or social services benefits if need be. You should consider each of these options to meet your financial needs. We can answer some questions about these benefits as well, although we do not represent people on matters involving benefits other than Workers’ Compensation and Social Security Disability.
Social Security Disability (SSD) is a federal program designed to assist those who are disabled and unable to return to work. It is different from Social Security Retirement in that you can receive cash benefits and partial coverage for your medical bills (Medicare) prior to age 65. If you are out of work for twelve continuous months, you should file for SSD as a supplement to your Workers’ Compensation case. They will take information about you over the phone and get your medical records. When determining your eligibility for SSD, they take into consideration your age, disability, level of education, and your prior work history. If you have filed for SSD and are denied, we recommend you contact us immediately. You only have sixty days to take action after you are denied, so call right away.
As short term and long term disability compensates only for disabilities not related to work you cannot collect if you are out of work and on workers’ compensation.
My insurance company is refusing to pay a medical bill because they say the care is not within the medical treatment guidelines, what does this mean?
In 2012 and 2013, the Workers’ Compensation Board published a new set of rules called the Medical Treatment Guidelines (MTG) governing what types of care can be provided without prior authorization. These guidelines cover care for the back, neck, knees, shoulders and carpal tunnel syndrome (guidelines have been published for chronic pain treatment but are not yet in effect). If your injury is not to one of these body parts then the MTG do not apply to your claim but prior authorization will still be required for services costing more than $1000.
If your injury is covered then the good news is that your doctor doesn’t need to request authorization for any care that is pre-authorized under the guidelines. The bad news is that if the care is not covered by the guidelines or is beyond what the guidelines explicitly authorize then you and your doctor may have to jump through hoops to get care authorized.
A very common example of this is chiropractic care for the back (called manipulation under the MTG). While the MTG do explicitly authorize chiropractic, it is only for a limited period of time (a maximum of 12 weeks). There are several situations where care can continue beyond this maximum. For example if you exacerbate your condition and the doctor properly assesses and documents the exacerbation then you may be able to get more care. There is also a newer provision that allows for 10 annual visits if you meet certain specific requirements which need to be very well documented by your provider.
The MTG are far too complex for us to go into any great detail here but please call if you have any questions. You can read the guidelines here . Keep in mind, however, that these guidelines were written by lawyers and doctors who intended other lawyers and doctors to read them. As a result they are complex and at times quite difficult to make sense of.
New York State has passed laws about committing insurance fraud in workers compensation cases. They are extremely serious about this, and the penalties can include making you repay your benefits, losing any future benefits and even jail time. An issue of fraud is raised by the insurance company if they think you might be lying to them about the cause or extent of your injuries, or if you are claiming to be out of work yet making money on the side or under the table.
You may be committing fraud if your doctor tells you not to do any heavy work and this keeps you from doing your job, yet you are putting on a new roof on your house. Or if you are not working because you are not supposed to walk for long distances, yet come in third at a marathon. These are silly examples, but it gives you an idea of what constitutes fraud. We see many cases where the insurance company has hired a private investigator and videotaped a person doing something their doctor says they should not do. They immediately assume that you have exaggerated the seriousness of your injury and push for your benefits to stop. While most people don’t race in marathons, even minor things like taking out the garbage or mowing the lawn will get you into trouble if your doctor says you can’t do it or you make statements to your doctor that you can’t do it. Fraud can be based on any statements you make that are not accurate to anyone concerned with your claim including the insurance company, your employer, your doctor or the insurance company doctor.
You are definitely committing fraud if you say you are not working yet collecting income under the table or through self-employment. If you are getting any type of weekly benefits from compensation, you must immediately tell the insurance company (and us) that you are working. “Working” is defined as getting something (cash, goods or services) for doing something (fixing a car, babysitting, watching the store). If it sounds like a job, it probably is. You must tell us what you are doing and for how much. If immediately reported, it’s not fraud, and it may not even affect your benefits. If you are working and keep receiving compensation checks, you should not cash them.
A fraud allegation, whether true or not, will seriously delay your case for many months –- sometime years –- and cause you great financial hardship and stress. Simply put, don’t do it. Be upfront with your doctor about what you can and cannot do. Follow the restrictions given to you. Tell us if you start “working”, even if you are not sure that it’s really a job.
You have an absolute obligation to be honest with your attorney as well. An attorney cannot properly represent you unless he or she has all the information, and any dishonesty will endanger your relationship with an attorney.
You can settle a workers compensation claim. Such agreements in workers compensation are called “Section 32” agreements. If your insurance company wishes and if you agree then you can choose to close the lost wages portion, the medical portion or your whole claim in exchange for a sum of money to be paid. If you close the lost wages portion of your claim you will no longer be entitled to receive any ongoing payments for your time out of work. If you close the medical portion, then you will have to pay future medical expenses yourself.
Normally we do not recommend settling your case until a determination of permanent disability has passed. We also encourage you to speak to a financial planner prior to entering into any agreement closing your claim for good. In cases where settlement is appropriate we will estimate what we think your claim (or what the portion of your claim that is to be closed) is worth, and we will then advise you if we feel any offer from the insurance company is fair. Keep in mind that million dollar settlements are exceptionally rare in workers compensation. There is also no golden rule for how much a claim is worth. If your insurance carrier offers to settle your claim, no matter the amount they offer, you should contact us immediately.
If you do receive a settlement we suggest that you use the money wisely (don’t run off and buy that new monster truck that you’ve been eyeing). Keep in mind that this is all the money you will ever get out of your claim if you chose to close it and if you are permanently disabled then it may have to last you a long time. We frequently get calls from people telling us that they ran out of money from their settlement and now they have to sell their boat, their jet ski and their house because they spent it all. As I noted above you should speak to a financial planner and considering investing the money where it will grow and keep you afloat.
Attorneys practicing in the area of Workers’ Compensation receive fees for successfully representing their clients. In Workers’ Compensation, it is not permitted to charge a fee to represent you upfront. Any fees collected for representing you will be paid out of the money you are getting, and this will be sent to the attorney directly by the insurance company. NEVER pay anyone, including your lawyer or your doctor, directly. Any and all fees requested must be approved by the judge, who is aware of what an attorney may charge clients. If your case results in no benefits being paid to you, the attorney does not get paid either. An attorney should always discuss any fees with you beforehand.
Typically, attorneys receive appearance fees for representing clients at each hearing where benefits are continuing. Also, the judge may award an attorney fee if there is back money owed to you. There is also a fee when you are found to have a permanent disability. While we do not charge an hourly rate, we do keep track of the amount of time spent on your case, the number of letters or phone calls we answer, and the difficulty of your case. We then factor that into how much we charge. Of course, these are the policies of our office and other attorneys fees may differ slightly. However, the fees are generally quite similar from attorney to attorney.