Types of Workers’ Comp Benefits 

New York workers’ Compensation provides three kinds of benefits:

• Medical Benefits, including medical, hospital, and other related treatment expenses – including mileage reimbursement for travel to your work-related medical providers; 
• Cash benefits if you are out of work or earning less (reduced earnings) do to your work injury; 
• Cash benefits for permanent disabilities: including schedule loss of use awards and classification with a permanent partial disability/classification.

• Workers’ compensation does not provide any benefits for pain and suffering or loss of enjoyment of life. Workers’ Comp. does not offer meaningful job protection.

How long do I have to be out of work before I am entitled to cash benefits?

If you are out of work for less than a week, you are not eligible for out-of-work benefits. If you are out of work due to your injury for more than one week, you are entitled to cash benefits to compensate you for lost or reduced earnings starting at the beginning of the second week. If you are out of work for more than two weeks, you are entitled to sash benefits retroactive to the first day you lost form work.

Return to Work If You Can

The Workers’ Compensation Law is designed so you will usually receive more money if you return to work, even if you are earning less.  In this way, the Workers’ Compensation system rewards you for returning to work.  Please consult your doctor to make sure it is safe for you to return to work.  If you have applied for or are receiving social security disability benefits, please speak to a social security attorney about the effects returning to work will have on your social security disability case. 

When Should I Expect My First Check?

If the carrier accepts liability for your injury, the carrier should pick up payments voluntarily.  Otherwise, you will not receive awards until your case is established and a judge directs the carrier to pay you benefits at a hearing. 

Common Pitfalls in Obtaining Wage Benefits

You must see a medical provider at least every 90 days.

To get cash benefits while you are out of work or earning less you must have “up-to-date medical evidence” of a disability every 90 days.  IF YOU DO NOT SEE A MEDICAL PROVIDER EVERY 90 DAYS YOUR CASH BENEFITS MAY BE LOST FOR THOSE PERIODS BEYOND THE 90 DAYS.

Even if your doctor says (s)he only needs to see you every six months for medical treatment, you still need to see a doctor at least every 90 days to maintain your cash benefits.  If you are unable to make appointments with a specialist, a report from a family practitioner will usually suffice.  Even if your doctor cancels an appointment, you are still obligated to see a doctor every 90 days. 

The Workers’ Compensation system only credits degree of disability opinions from medical doctors and nurse practitioners (and chiropractors for back or neck injuries only).  Physician’s assistant may only offer disability opinions if they are supervised by a doctor and only after the doctor has offered a disability opinion. 

Anytime you go out of work, you must see your doctor or nurse practitioner and get a note taking you out of work.^[2]  A physician assistant cannot take you out of work.  

Your Medical Provider Must Submit a Properly Completed Medical Report Form Giving Your Degree of Disability.

Even if you see the doctor every 90 days, if your doctor’s office fails to send the reports to the Workers’ Compensation Board in a timely fashion, we will be unable to show that you are still disabled and the carrier may suspend your cash benefits.  

Since out-of-work benefits are based on your degree of disability, if your doctor is unwilling or unable to give an opinion as to your degree of disability, the Workers’ Compensation Board may deny you cash benefits. Sometimes a doctor’s office simply checks off a degree of disability on a form, but the doctor later says that he cannot determine a degree of disability, leaving you without the medical opinion you need to get your benefits.  Please make sure your doctor evaluates you for a degree of disability at each doctor’s visit, is willing to back up that opinion and notes your percentage of disability in each medical report.

Independent Medical Exams

If you receive a notice from the carrier scheduling you for an IME exam, it is very important that you attend that appointment.  Failure to attend an IME may result in a suspension of your benefits or delay your case.  You do not get paid for the time you take off from work to see the carrier’s doctor; however, you are entitled to be reimbursed for your travel expenses.  Sometimes IME appointments are scheduled at either an inconvenient time or location.  If this is the case, please call the insurance carrier and ask them if they can reschedule.  If the carrier is unable to accommodate you, you should still attend the exam.  If you cannot attend the appointment, please call our office. If you are unable to arrange for transportation to the IME, please call the carrier and ask if they can arrange transportation.  It is our recommendation that you videotape all IME exams.  

d)   You must look for work through the Department of Labor Job Search Service.

Just like unemployment benefits where you have to look for work in order to receive benefits, you have to look for work within your restrictions/work capabilities in order to receive ongoing cash benefits.   Please see the attached handout “Your Obligations to Look for Work.”  If you need an extra copy, please contact us.  

1. What if my employer offers me light-duty work, which I don’t want?  If the employer offers you light-duty work consistent with your physical capabilities and you turn that job down (even if it is an undesirable position such as a night shift) you will be found to have withdrawn from the labor market and the carrier will no longer have to pay you cash benefits.  If you get such an offer of employment and are unable to accept it, please contact us immediately.
   1. Will Retirement Affect My Benefits?  It depends.  If you retire in part because of your work-related injury, you may be entitled to ongoing wage benefits if your work-related disability is a motivating factor in your decision to retire.  If you planned on retiring at a specific age and you follow through with your plan, you may be found ineligible for continuing benefits.  IF YOU ARE CONSIDERING RETIREMENT, DISCUSS THIS WITH US PRIOR TO MENTIONING IT TO YOUR EMPLOYER OR CARRIER.  Through careful planning, we will be able to maximize your chances of continuing to receive Workers’ Compensation benefits after you retire if you legally qualify.  
   1. What if a Vocational Nurse/Counselor contacts me?  Oftentimes the carrier will employ Vocational Nurses/Counselors to assist you in returning to work.  If a Vocational Nurse/Counselor contacts you, contact our office so we can discuss the terms and conditions under which we will work with them.

e)   Fraud

If you are found to have misrepresented or omitted any fact regarding your Workers’ Compensation claim, you will be denied all future cash benefits and you may be subject to criminal prosecution which may result in a loss of medical benefits.  

1. If you fail to disclose prior medical treatment, conditions, or injuries a carrier may claim that your lack of disclosure amounts to fraud.  Therefore, make sure you disclose any prior treatment or injuries no matter how insignificant that treatment or injury may seem.  
   1. You must inform the carrier if you return to work.  If you are receiving out-of-work benefits, you have an obligation to notify the carrier if you are working in any capacity, even if you are not being paid for the work.  This includes: helping out a friend or a family member, assisting someone else who is working, doing volunteer work or teaching Sunday school, selling items on the internet, hobbies – especially those with income potential, household projects or repairs, working from your home in any capacity, income from rental properties, accompanying someone who is working etc..  Failure to notify the carrier of work may constitute fraud and cause you to lose the right to wage-replacement benefits forever.  As such, it is best to report any work — or anything that might possibly be considered work — to the carrier.  
   1. Activities inconsistent with your level of disability:  If you or your doctor report that your injury prohibits you from a certain level of activity, and you are later found to have engaged in activities inconsistent with your reported level of activity, this may also be considered fraud. 

If you are found to have committed fraud our office reserves the right to withdraw from your case.  

f)    Subsequent or Intervening Injuries

If an unrelated accident worsens your Workers’ Compensation injury, you will only be entitled to benefits for the portion of your condition attributed to your Workers’ Compensation Injury.  For example: You injure your back at work by lifting heavy objects and have a 25% disability due to that injury.  Later, your back is further injured in a car accident resulting in an overall 50% degree of disability.  In this case, Workers’ Compensation would only be responsible for half of your 50% disability.  

Failure to disclose a prior or subsequent injury to Workers’ Compensation may be considered fraud, resulting in a permanent suspension of your benefits.  

g)   When Will My Cash Benefits End?

Cash benefits for lost wages (including reduced earnings) may be suspended for a number of reasons, including: 

• returning to work at your regular pay.  Please note, that if you return to work your benefits are only suspended.   If your doctors take you back out of work due to your injury, please let us know so we can work to get your benefits resumed.  your doctor states that you are no longer disabled.failing to have medical evidence of ongoing disability every 90 days.failing to seek employment within your physical limitations and documenting that work search.voluntarily entering into a settlement with the carrier (see below).becoming totally disabled, as a result of a non-related injury or illness.failing to attend an IME.   you are found to have a scheduled loss of use (see below),you are classified with a permanent disability and your benefits expire (see below).  

If more than 18 years pass from the date of your injury and you have not received cash benefits in the last 8 years, you will no longer be eligible to receive further cash benefits.  If you are nearing the 18-year mark in your case and you have not received cash in some time, please discuss this with us.  

h)   When Can the Carrier Reduce or Suspend My Benefits?

If you are awarded benefits at a Workers’ Compensation hearing, the carrier is not allowed to reduce your benefits without the Judge’s permission, unless you return to work, or your doctor indicates that you are not disabled or your disability has decreased.  If the carrier is paying you voluntarily, the carrier may suspend or reduce your benefits at any time without a hearing.  Contact our office if the carrier has unexpectedly reduced or suspended your benefits. If the carrier files an appeal of a Judge’s decision, the carrier will not have to pay while that appeal is pending. It can take up to year for the WCB to decide on some appeals.  The carrier has 30 days from the date of the decision to mail an appeal.  Therefore, we must wait approximately 40 days after a hearing to know if a carrier is appealing.  

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^[1] If you are not receiving and not seeking reduced earnings benefits or out of work wage benefits or if you are classified by a judge with a permanent disability (see below), you are not required to see a doctor every 90 days.  In this case, you may see the doctor as often or as little as you need and as is medically necessary.  Otherwise, you must see a doctor at least every 90 days.  

^[2]  You must be examined by the doctor at the time he takes you out of work.  If the doctor takes you out of work over the phone, you will not be entitled to wage benefits until you are actually seen by a doctor.