Mike Forster

Phone: 716-675-2100 ext. 175
Email: [email protected]

The professional staff at Aebly & Associates can provide a wide variety of workers’ compensation programs to best fit your specific needs.

• Fully Insured; Guaranteed Cost Plans
• Dividend Plans
• Managed Care PPO Plans
• Large Deductible Plans
• Retrospectively Rated Plans
• Self-Funded Programs
• State Insurance Fund
• Captive

 

This following content is a general and simplified overview of Workers’ Compensations Benefits and provisions of the Workers’ compensation Law as provided by the NYSWCB and is provided herein as a convenience for your review. It is not a substitute for the law or legal advice.

Introduction to the Workers’ Compensation Law

Workers’ compensation is insurance that provides cash benefits and/or medical care for workers who are injured or become ill as a direct result of their job.

Employers pay for this insurance, and may not require the employee to contribute to the cost of compensation. Weekly cash benefits and medical care are paid by the employer’s insurance carrier, as directed by the Workers’ Compensation Board.

The Workers’ Compensation Board is a state agency that processes the claims and determines, through a judicial proceeding, whether a worker will receive benefits and/or medical care, and how much he/she will receive.

In a workers’ compensation case, no one party is determined to be at fault. The amount that a claimant receives is not decreased by his/her carelessness, nor increased by an employer’s fault. However, a worker loses his/her right to workers’ compensation if the injury results solely from his/her intoxication from drugs or alcohol, or from the intent to injure him/herself or someone else.

A claim is paid if the employer or insurance carrier agrees that the injury or illness is work-related. If the employer or insurance carrier disputes the claim, no cash benefits are paid until the Workers’ Compensation Law Judge decides who is right.

If a worker is not receiving benefits because the employer or insurance carrier is arguing that the injury is not job-related, he/she may be eligible for Disability Benefits in the meantime. Any payments made under the Disability Program, however, will be subtracted from future workers’ compensation awards.

Who is and is not covered by the law (WC)?

Who is Covered?

• Workers in all employments conducted for profit.
• Employees of counties and municipalities engaged in work defined by the law as hazardous.”
• Public school teachers, excluding those employed by New York City, and public school aides, including New York City.
• Employees of the State of New York, including some volunteer workers.
• 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 $1200 or more for farm labor in the preceding calendar year.
• Any other worker determined by the Board to be an employee.

Who is not Covered?

• Clergy and members of religious orders.
• People engaged in a teaching or non-manual capacity in or for a religious, charitable or educational institution.
• People employed in certain maritime trades, interstate railroad employees, federal government employees and others covered under federal workers’ compensation laws.
• People, including minors, doing yard work or casual chores in and about a one-family, owner-occupied residence. Casual means occasionally, without regularity, without foresight, plan or method. Coverage is required if the minor handles power-driven machinery, including a power lawnmower.
• Certain employees of foreign governments.
• New York City police officers, firefighters, and sanitation workers. Uniformed police officers in other municipalities may also be excluded.
• Certain real estate salespersons who sign a contract with a broker stating that they are independent contractors
• Sole proprietors, partners, and one/two person corporate officers with no employees (although coverage may be obtained voluntarily).

Note: The employer is required to post notice of compliance with the Workers’ Compensation Law.

Cash Benefits (WC)

Cash benefits are not paid for the first seven days of the disability, unless it extends beyond fourteen days. In that case, the worker may receive cash benefits from the first work day off the job. Necessary medical care is provided no matter how short or how long the length of the disability.

Claimants who are totally or partially disabled and unable to work for more than seven days receive cash benefits. The amount that a worker receives is based on his/her average weekly wage for the previous year. The following formula is used to calculate benefits: 2/3 x average weekly wage x % of disability = weekly benefit . The weekly benefit cannot exceed the stated maximums, however, which are based on the date of accident:

Note: The benefit rate a claimant receives (determined by his/her date of injury) does not increase if new maximum benefits are adopted into law.

Supplemental Benefits

Supplemental benefits were made available to claimants thought to be most affected by rising costs. The combination of weekly benefits, death benefits and supplemental benefits cannot exceed $215/wk. This is the rate that was in effect on January 1, 1979.

Two categories of claimants/beneficiaries are eligible for supplemental benefits by making application to the Board: Claimants classified permanently and totally disabled as the result an injury or disability incurred on the job prior to January 1, 1979; Widows or widowers receiving death benefits as the result of the death of their spouse occurring prior to January 1, 1979.

Death Benefits

If the worker dies from a compensable injury, the surviving spouse and/or minor children, and lacking such, other dependents as defined by law, are entitled to weekly cash benefits. The amount is equal to two-thirds of the deceased worker’s average weekly wage for the year before the accident. The weekly compensation may not exceed the weekly maximum, despite the number of dependents.

If there are no surviving children, spouse, grandchildren, grandparents, brothers or sisters entitled to compensation, the surviving parents or the estate of the deceased worker may be entitled to payment of a sum of $50,000. Funeral expenses may also be paid, up to $6,000 in Metropolitan New York counties; up to $5,000 in all others.

Social Security Benefits

A worker who becomes seriously disabled, either permanently or for a continuous period of not less than 12 months, as a result of a medically determinable physical or mental impairment may be entitled to the payment of monthly Social Security benefits. For additional information about these Federal Disability Insurance Benefits, write or call the nearest Field Office of the Social Security Administration.

Medical Benefits (WC)

The injured or ill worker who is eligible for workers’ compensation will receive necessary medical care directly related to the original injury or illness and the recovery from his/her disability. The worker is free to choose any physician, chiropractor, podiatrist, psychologist (upon referral from an authorized physician), outpatient clinic of a hospital or health maintenance organization authorized to give medical care by the Chairman of the Workers’ Compensation Board.

Preferred Provider Organizations (PPO’s) are allowed to provide workers’ compensation coverage if they offer five providers in every medical specialty and three hospitals (exceptions granted by the Workers’ Compensation Board). If the injured worker is dissatisfied with his/her medical provider after initial treatment, he/she may select another authorized provider outside the PPO after 30 days of initial treatment.

The cost of necessary medical services is paid by the employer or the employer’s insurance carrier. The doctor may not collect a fee from the patient. When appropriate, claimants will be awarded reimbursement for automobile mileage to and from a health care provider’s office.

If the injured worker’s compensation claim is disputed by the employer or insurance carrier, the doctor may require the claimant to sign form A-9. This will guarantee that the worker will pay the medical bills if the Workers’ Compensation Board disallows the claim or the worker does not pursue it.

Disability Classifications

An injured worker’s health care provider will determine the extent of the disability. Cash benefits are directly related to the following disability classifications:

• Temporary Total Disability — The injured worker’s wage-earning capacity is lost totally, but only on a temporary basis.
• Temporary Partial Disability — The wage-earning capacity is lost only partially, and on a temporary basis.
• Permanent Total Disability — The employee’s wage-earning capacity is permanently and totally lost. There is no limit on the number of weeks payable. In certain instances, an employee may continue to engage in business or employment, if his/her wages, combined with the weekly benefit, do not exceed the maximums set by law.
• Permanent Partial Disability — Part of the employee’s wage-earning capacity has been permanently lost on the job. Benefits are payable as long as the partial disability exists, except for schedule loss of use (see below). If there are no reduced earnings as the result of the partial disability, only medical benefits are payable.
• Schedule Loss — This is a special category of Permanent Partial Disability, and involves loss of eyesight or hearing, or loss of a part of the body or its use. Compensation is limited to a certain number of weeks, according to a schedule set by law.
• Disfigurement — Serious and permanent disfigurement to the face, head or neck may entitle the worker to compensation up to a maximum of $20,000, depending upon the date of the accident.

Occupational Disease

An occupational disease arises from the conditions to which a specific type of worker is exposed. The disease must be produced as a natural incident of a particular occupation, such as asbestosis from asbestos removal.

A person disabled by a work-related occupational disease receives the same benefits as for an on-the job injury. However, the time limit for filing a claim is the later of two dates:

• Two years from the date of the disabled worker’s disability; or
• Two years from the time the disabled worker knew or should have known that the disease was due to the nature of employment.

(In the case of death, the dependents must file within the stated time limits).

When a worker becomes ill from an occupational disease, he/she may be disabled even if there is no lost time from work. For purposes of determining the employee’s right to benefits, the date of disablement is determined by a Workers’ Compensation Law Judge.

Occupational Hearing Loss

In the event of occupational loss of hearing, other time limits apply. The waiting period for a worker to file a claim is his/her choice of:

• Three months from the date the worker is removed from the harmful noise in the workplace; or
• Three months after leaving the employment in which the exposure to the harmful noise occurred.

The last day of either 3-month period is considered the date the disability began. The worker may file beyond the two-year limit, if it is done within ninety days of knowledge that the hearing loss is related to his/her employment.

Rehabilitation and Social Work

Rehabilitation is a program offering special services designed to: eliminate the disability, if that is possible, or to reduce or alleviate the disability to the greatest degree possible; help an injured worker to return to work when possible; or to aid the person with a residual disability to live and work at his/her maximum capability. The Board’s Rehabilitation staff includes counselors, social workers, a consultant psychiatrist and claims examiners to coordinate and follow-up on medical and vocational rehabilitation services. Rehabilitation is voluntary except in limited circumstances. Injured workers should contact the rehabilitation unit at the Board to determine if they are required to participate.

There are four general types of services offered:

• Vocational Rehabilitation programs for those who, because of their disability, cannot return to their former jobs. These services may provide guidance to help the claimant determine the best way to return to work.
• Selective Placement programs for those claimants who are left with a permanent disability, and who need a job that will fit their abilities.
• Medical Rehabilitation programs include exercise and muscle conditioning, under the supervision of a physician, to restore a person to maximum usefulness. Only a physician may recommend a medical rehabilitation program.
• Social Services provide a staff of social workers to assist an injured worker with a family or financial problem that is interfering with the rehabilitation.

Claimants who are participating in one of the rehabilitation programs continue to receive cash benefits based on the extent of the disability. Claimants who return to work but cannot earn the same wages because of an injury may be entitled to compensation benefits at a reduced rate.

Discrimination

An employer may not fire or otherwise discriminate against an employee or applicant who has claimed or attempted to claim workers’ compensation. An employee who has testified or is about to testify in a workers’ compensation proceeding is also protected. Violators of the law are subject to a penalty of $100 to $500. A worker who believes that he/she has been discriminated against must file a complaint within two years. To file a complaint of discrimination, an employee should file a Form DC-120 with the nearest

Workers’ Compensation Board District Office

If the Board finds that an employee was improperly discharged, the Board will order that the employee be restored to their previous position or privilege. The employee will also be paid by the employer for any loss of compensation arising out of the discrimination.

Americans With Disabilities Act

The Americans with Disabilities Act of 1990 prohibits discrimination against people with disabilities in employment, and ensures them equal access to government services, public accommodations, transportation, and telecommunications. This law can help injured employees who want to return to work. Additional information explaining the Federal Americans with Disabilities Act is available at the nearest Workers’ Compensation Board District Office or by calling 1-800-522-4369.

How Does the System Really Work?

Immediately

• The worker obtains the necessary medical treatment and notifies his/her supervisor about the accident and how it occurred.
• The employee notifies the employer of the accident in writing, as soon as possible, but within 30 days. The employee files a claim with the Board on Form C-3 by filing the form with the appropriate District Office. This must be done within two years of the accident, or within two years after the employee knew or should have known, that the injury was related to employment.

Within 48 hours of the accident 

The doctor completes a preliminary medical report on Form C-4 and mails it to the appropriate District Office. Copies must also be sent to the employer or its insurance carrier, the injured worker, and his/her representative, if any.

Within 10 days of notification of the accident

The employer reports the injury to the Board and the insurance company on Form C-2.

Within 14 days of receipt of Form C-2 

The insurer provides the injured worker with a written statement of his/her rights under the law. This must be done within 14 days after receipt of the C-2 from the employer or with the first check, whichever is earlier.

Within 15 days of initial treatment

The doctor completes a 15-day report of the injury and treatment on Form C-4 and mails it to the District Office.

Within 18 days after the first day of disability

OR 10 days after the employer first has knowledge of the alleged accident OR within 10 days after the carrier receives Form C-2, whichever is greater:

• The insurer begins the payment of benefits if lost time exceeds seven days. If the claim is being disputed, the insurer must inform the Workers’ Compensation Board (and the claimant and his/her representative, if any). If the claim is not disputed, but payment is not being made for specific reasons stated on the notice, (e.g. that there is no lost time or that the duration of the disability is less than the 7-day waiting period), the insurer must also notify all the parties.
• The insurer files Form C-669 or C-7 with the Board indicating either that payment has begun or the reasons why payments are not being made. If the employee does not notify the employer timely, this notice may be filed within 10 days of learning of the accident.
• A copy of the C-669 or C-7 must be transmitted to the claimant and his/her attorney or licensed representative, if any, simultaneously with the filing with the Board.

 

Within 25 days of the notice of indexing

• Where controverted – When the Board notifies an employer or its insurance carrier that a workers’ compensation case has been indexed against the employer, and the employer or insurance carrier decides to controvert the claim, a notice of controversy (Form C-7) shall be filed with the Board within 25 days from the date of mailing of the notice of indexing. Failure to file the notice of controversy within the prescribed 25 day time limit could bar the employer and its carrier from pleading certain defenses to the claim.
• Where not controverted – If the right to compensation is not controverted but payment has not begun because no compensation is presently due, prescribed form C-669 shall be filed with the Board not later than 25 days after the Board has transmitted a notice of indexing a case to the employer or its insurance carrier.

Every 2 weeks

The insurer continues to make payments of benefits to the injured employee (if the case is not being disputed). The carrier must notify the Board on Form C-8 when compensation is stopped or modified.

Every 45 days 

The doctor submits progress reports on Form C-4 to the Board.

After 8 weeks

• The insurer considers the necessity of rehabilitation treatment for the injured employee.
• Failure to file a claim or give the employer notice may result in the loss of rights to compensation.

Hearings and Appeals 

The Board may hold a hearing or hearings before a Workers’ Compensation Law Judge. The Judge may take testimony, review medical and other evidence and will decide whether the claimant is entitled to benefits. If the claim is determined to be compensable, the Judge determines the amount and duration of the compensation award. Either side may appeal the decision within 30 days of the filing of the Judge’s decision. This is done by applying in writing for Board review. If the application is granted, a panel of three Board Members will review the case. This panel may affirm, modify or rescind the Judge’s decision, or restore the case to the Law Judge for further development of the record. In the event the panel is not unanimous, any interested party may make application in writing for a full Board Review. The full Board must review and either affirm, modify or rescind such decision.

Appeals of Board Panel decisions may be taken to the Appellate Division, Third Department, Supreme Court of the State of New York, within 30 days. The decision of the Appellate Division may be appealed to the Court of Appeals.

Note: If a case is being contested, the carrier does not have to pay weekly benefits while the case is being reviewed by a Board Panel. However, payment of compensation and physician’s bills must be made if the claimant’s award is upheld by the Board Panel, even if an appeal is made to the Appellate Division. In addition, the uncontested portion of a Judge’s award is paid even if an application for review is filed.

At any point, the claimant has the right to an attorney or licensed representative, who may not ask for or accept a fee from the claimant. The fee for legal services will be determined by the Law Judge or Board Panel and will be deducted from the award of compensation.