If you are injured on the job, you should complete the Board’s Employee Claim form (C-3) as soon as possible to ensure your benefits are not delayed or interrupted. You must also notify your employer in writing of when, where and how you were injured or became ill. There are several ways to file the C-3 form: complete the online version on the Board’s website (https://www.wcb.ny.gov/onlineforms/c3/C3Form.html); call 1-866-396-8314, and someone from the Board will help you fill out the form; or file a paper form (you may obtain a paper form by visiting any customer service center or district office, by printing the form here (http://www.wcb.ny.gov/content/main/forms/c3.pdf); or by calling (877) 632-4996, and the Board will mail you one). Or, you can call Zea Proukou at (585)423-9444 for assistance in filing your claim. Remember: you must file a claim within two years of the accident or within two years after you knew or should have known that a contracted disease was due to the nature of your employment. You must also notify your employer in writing of when, where and how you were injured or became ill within 30 days of sustaining the injury.
You will receive notice from the insurance company if they have denied your claim. The Board will set a pre-hearing conference at which you are responsible to provide medical evidence showing enough support for your alleged work related injury to move forward with litigating the issues. The Judge will set a date for further hearings to take your testimony, any employer witness testimony, and medical testimony.
Persons 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. Therefore, a person who was earning $400 per week and is totally (100%) disabled would receive $266.67 per week. A partially disabled person (50%) would receive $133.34 per week. The weekly benefit cannot exceed the year’s maximum rate, however, which are based on the date of accident; it also cannot fall below the year’s minimum rate. If you can return to work but your injury prevents you from earning the same wages you once did, you may be entitled to a benefit that will make up two-thirds of the difference.
There are two main levels of disability in workers’ compensation. One is total disability, when a worker cannot earn any wages and his or her daily activities are limited. The other is a partial disability. A worker with a partial disability has lost some ability to earn wages and do normal, daily activities. He or she may still be able to do some work, such as part-time work or lighter work than his or her former job. If you have a partial disability, you must still look for and accept work you can do. Contact your employer to see if you can return to your job. Let your employer know if you need any changes so that you can do your job. Ask if you can be offered some other work to ease your return to work. If your wages are reduced as a result of your disability, you may be eligible for a “reduced earnings” benefit. You could lose your benefits if you fail to make a good faith effort to return to work. This is called “Voluntary Withdrawal from the Labor Market.”
In order to continue to receive disability benefits while you are out of work or receiving reduced pay, you must have medical evidence of your disability and/or restrictions every 90 days. This medical evidence should include both your percent of impairment as well as your physical limitations.
That depends on a few things, such as how much you earned before your injury. If your new pay rate is lower because of your disability and/or restrictions, you could get part of your benefit to make up for your decreased wages. This is called a “reduced earnings” benefit. You are also still entitled to causally related medical treatment for your injury(ies).
Yes. You can ask to be paid for your travel costs to and from treatment. You can be repaid for the cost of medications and some other items prescribed by your doctor as well. It is important to keep track of your roundtrip miles, and receipts for anything paid out of pocket.
The employer or insurance carrier is entitled to have you examined by a qualified physician of their choosing. Refusal to submit to an exam may affect your benefits.
The Workers’ Compensation Law does not require your employer to keep your job open for you. But, most employers do take injured workers back. Keep in contact with your employer about your job status. The federal Family and Medical Leave Act (FMLA) requires some employers to provide up to 12 weeks of unpaid leave during a twelve-month period to an employee who cannot work because of a serious health condition. Contact the U.S. Department of Labor or your employer for more information.
If you are ready, willing, and able to work, but your job is no longer open with your employer, you may be able to collect Unemployment Insurance. Contact the New York State Department of Labor to find out more about Unemployment Insurance benefits at 1-888-209-8124.
Once you have reached maximum medical improvement, you may be entitled to an award. For those who injured an extremity such as an arm or a leg, you may be entitled to a schedule loss of use award (known as an SLU). This pays you for an injury that leaves you with less ability in a body part than you had before the injury. Your doctor will do an evaluation and submit an opinion in the form of a percentage, based on the NYS WC Impairment Guidelines. You can receive this money even if you never missed time from work or if you’ve already returned to work; however, any prior payments received from the insurance company will be deducted from this award. As Workers’ Compensation is a claims process and not a lawsuit, there is no pain and suffering factored into this award. For those who injured any other site, such as your head, neck or back, you may be entitled to ongoing weekly checks at a set capped amount. These are called non-schedule awards, and are based on the employee’s permanent loss of earning capacity (also called LWEC). If the work related accident or date of disablement occurred before March 13, 2007, benefits are payable as long as the partial disability exists and results in wage loss. If the work related accident or date of disablement occurred on or after March 13, 2007, benefits are payable for a maximum number of weeks as determined by the claimant’s loss of wage-earning capacity.
A schedule loss of use (also known as an SLU) is a percentage assigned to your extremity injury (ex. knees, shoulders, hands, etc.) by a medical doctor once it is determined that your injury is permanent and you are at maximum medical improvement. The doctor must use the Permanent Impairment Guidelines created by the Workers’ Compensation Board to evaluate the permanent nature of your injury for things such as range of motion losses, fractures, tears, certain surgeries or procedures, amputations, joint replacements, etc. The Guidelines will call for assigning a particular percentage loss of use.
The Workers’ Compensation Board has created a “schedule” to determine how many weeks of pay each body part is worth. Whatever percent loss of use is assigned to your injury is used to calculate the schedule loss of use award.
For example, the Board has determined that a hand/wrist is worth 244 weeks of pay. If you are given a 10% SLU, that equals 24.4 weeks (244 x 10% = 24.4).
The 24.4 weeks of pay is multiplied by your total disability rate. This is the amount that the insurance company would pay you every week while you are out of work and totally disabled.
For example, if your total disability rate is $500.00, your SLU award would be $12,200.00 ($500.00 x 24.4).
From the award, the insurance carrier can deduct all prior disability payments made to you while you were out of work in your claim. Additionally, your attorney’s fee is deducted from the award. The remaining money is your schedule loss of use award. It is almost always paid to you in one lump sum and is tax free
There were changes made to the Permanent Impairment Guidelines in late 2017. The changes affect mainly those who have undergone joint replacement surgeries (i.e., knee, hip, shoulder replacements) and rotator cuff repairs. These injuries are significant and under the prior Guidelines called for some of the highest SLU percentages. The new Guidelines do not attribute as high of percentages for these serious injuries. This, in turn, results in lower monetary awards for the injured workers.
As with all situations, there are many other variables involved. These awards are not always as simple as described, as the insurance company will likely obtain their own opinions and try to deflate the opinion your doctor has given. Please contact our office to discuss the particulars of your claim.
“Settlement” is a fluid word in Workers’ Compensation. Some people refer to the schedule loss of use (“SLU”) award as a settlement (see SLU FAQ) because it is usually a lump sum of money. However, settlements are more often seen in the claims involving back and neck injuries. These types of injuries result in a classification of permanent disability. The neck and back injuries are not assigned a percent loss like the extremities are. Generally, once someone is classified under the Workers’ Compensation Law, they continue to receive weekly benefits for a capped time into the future. Insurance carriers often wish to close their files and stop paying ongoing indemnity and medical benefits to classified injured workers. One way to do this is to settle the claim. Section 32 of the Workers’ Compensation Law covers settlement of claims. In a Workers’ Compensation settlement, both parties must be willing to settle. A settlement cannot be demanded by either the insurance company or the injured worker. A period of negotiation usually takes place and an agreement is drafted and signed by all parties. Settlements in Workers’ Comp can either close out all aspects of the claim or some can leave medical benefits open, depending on what is negotiated between the parties. Ultimately, the settlement agreement must be approved by the Workers’ Compensation Law Judge before it is final. Once finalized, the claim cannot be reopened.
If you are injured at work and you also have another job, this is called concurrent employment. Concurrent employment is covered under Section 14(6) of the Workers’ Compensation Law. The wages of all employers where you worked as a covered employee at the time of your injury are taken into account when calculating your average weekly wage for Workers’ Compensation purposes. You will need to provide proof to the Workers’ Compensation Board that you have concurrent employment at the time of your injury. This includes paystubs, W-2’s, and/or a letter from your employer.
If your case resolved with a schedule loss of use, you are still entitled to ongoing causally related medical treatment. This means that if you are experiencing problems that a doctor relates to your original injury, then it should be covered under your Workers’ Comp claim. If you settled your case with a Section 32 settlement, you either agreed to ongoing medical care being left open, or medical was closed out. Depending on your agreement, you may or may not be able to seek additional medical care under your Workers’ Comp claim. If you closed out your medical in a Section 32 settlement, you were likely told to set aside a portion of your settlement money specifically for the payment of medical bills as you are now responsible for paying them yourself.
Social Security Disability and Supplemental Security Income
You must either have medical evidence showing that you meet a listing (see, http://www.socialsecurity.gov/disability/professionals/bluebook/AdultListings.htm) or have a severe impairment causing you to be unable to perform “substantial gainful activity” (loosely defined as earning $1,070 per month in 2014) which has lasted, or be expected to last, at least 1 year or expected to result in your death. The standards of disability for severe impairment can differ based on your age. Social Security wants to make sure that everyone who receives disability benefits meets Social Security’s definition of disability — a process that typically requires a review of extensive medical and other evidence.
Social Security bases their definition of “disabled” on medical evidence consisting of your doctors’ opinions as well as the agency doctors. Even if your doctor indicates he or she believes you are disabled, Social Security has different, often stricter, requirements for determining disability.
File an appeal right away. You have 60 days from the date of the denial on your notice to request reconsideration. If you are denied on reconsideration, you have 60 days to request a hearing before an Administrative Law Judge.
For SSD benefits, the benefits cannot begin until five months have passed after the person becomes disabled. In addition, benefits cannot be paid more than one year prior to the date of the claim. For a disabled adult child, there is no five-month waiting period for benefits to begin, but benefits cannot be paid more than six months prior to the date the application for benefits was filed. SSI benefits cannot be paid prior to the start of the month following the date of the claim/application.
For disability insurance benefits, the amount depends on how much you have worked and earned in the past. For disabled widow’s benefits, the amount depends upon how much the late husband or wife worked and earned. For disabled adult child benefits, the amount depends upon how much the parent worked and earned. For all types of SSI benefits, there is a base amount that an individual with no other income receives. Other income that an individual has reduces the amount of SSI which an individual can receive. The maximum benefit for 2022 is $841.00 for an individual, and $1,261.00 for family.
Yes. For those receiving Workers’ Compensation benefits, Social Security will offset your monthly payment. Because it is based on what you receive from Workers’ Comp, it is important to notify the Social Security Administration of any change in your pay.
If your claim is denied at the ALJ hearing stage, you have the right to appeal to Social Security’s Appeals Council. The Appeals Council reviews hearing decisions, and has the power to “remand” or send cases back to judges when they make mistakes. It also reverses decisions in a small share of cases. It can take about a year to get a decision from the Appeals Council. If your claim is still denied at this level, you can file an appeal in Federal Court.
An application for Social Security Disability benefits can be made by filling out the online form or by calling your local Social Security office and setting up a phone appointment. The application is lengthy and will take some time to complete, and we recommend talking to an attorney before you do so. You should have the following information ready: information regarding your current and any prior spouses (name, DOB, SSN, dates of marriage and end of marriage), names and ages of all children, name, phone, and address for all treating medical providers, all prescription medication information, information concerning any medical testing and hospitalizations, and names and addresses of prior employers, dates worked there, general work duties. This and other information will need to be provided. Contact us to determine if we can assist you in applying for Social Security benefits.
As of July 2022, the Social Security Administration estimates that the average wait time for a hearing out of the Rochester Office of Disability Adjudication and Review (ODAR) is 15 months from the date of request for hearing. However, not all hearings are conducted in person. The SSA is still holding hearings via video and teleconference.
While you wait for your hearing to be scheduled, it is very important that you continue to see all of your medical providers and have them document your conditions and inability to work. If you receive anything in the mail from Social Security, please contact our office to determine if any action needs to be taken. Please also inform our office of any new providers that you see. We begin preparing your file in the months leading up to when we anticipate your hearing will be held. This means that we will contact all of your doctors and obtain, oftentimes, years’ worth of medical records. All medical evidence will be submitted to your Social Security file, reviewed, and analyzed in preparation for your hearing.