Workers Comp in New York

New Yorkers have every right to be proud of their ancestors’ contributions to employer-employee relations, particularly as they apply to workers compensation.

The flames of the legendary Triangle Shirtwaist Factory fire in 1911 ignited an explosion of reforms that put New York at the heart of a workplace revolution.

Nearly 600 garment workers were threatened by the blaze and 146 — mostly women between the ages of 14 and 48 — perished behind doors ordered locked by the bosses to limit theft and unauthorized breaks.

As former president of the Injured Workers Bar Association of New York, Syracuse-based attorney William Crossett knows every heartbreaking detail of the tragedy. But familiarity can’t stop the catch in his throat as he tells it again. “Some jumped to their deaths holding their pay,” he says. “They were desperate to make sure their families got their wages.”

The fire and its aftermath exposed the scandalous worker safety and injury compensation not only in New York, but across the United States.

In short order, legislators passed roughly three dozen laws aimed at improving workplace safety, plus a workers compensation program providing prompt and uncomplicated access to lost wages and health benefits for injured workers. Other states and the federal government quickly followed New York’s lead; where previous statutes had failed the test of providing due process to employers, in 1917, the U.S. Supreme Court upheld the New York law.

Over the decades, lawmakers have tweaked various aspects of the originating act, but its fundamental premise remains: Workers injured or sickened on the job should have swift, reliable, no-fault remedies for lost wages and medical care without having to take their employers to court.

In theory, anyway.

As Crossett says, “New York used to be a leader … 100 years ago.”

How to File a Workers Comp Claim in New York

It’s a good rule of thumb to notify your supervisor and your company’s human resources department as soon as possible when you realize you have a work-related injury or illness — assuming, of course, your injury is not catastrophic.

Always (always, always) seek medical attention in cases of emergency such as a broken leg or torn muscle, for instance, as opposed to slow-onset carpal tunnel syndrome. Your survival and recovery are more important than the paper trail demanded by bureaucracy. We’ll talk about notification deadlines below.

Workers compensation is overseen by the New York State Workers’ Compensation Board, aka, The Board, with headquarters in Schenectady.

Begin the process by filing a C-3 employee claim form online. You also may acquire paper forms through your employer or the NYS Workers’ Compensation Board. If you lack access to a computer, you can visit any of the nine statewide Workers’ Compensation Board offices or satellite service centers to file a claim.

Need the customer service toll-free number? It’s (877) 632-4996. That’s also the go-to number to get language help.

Paper forms can be mailed to The Board:

NYS Workers’ Compensation Board
Centralized Mailing Address
PO Box 5205
Binghamton, NY 13902-5205

Scanned forms and related digitized documents can be emailed: wcbclaimsfiling@wcb.ny.gov.

A word of caution: Read through the form first before you begin filling it out. You may have questions about the questions (What if I had more than one job when I was injured?) that are answered as you work your way to the end.

So: To help avoid frustration, read the form all the way through at least once before filling in any of the blanks.

“The insurance company’s job is to pay out at little as possible,” Crossett says. “Take your time. Filled out in haste, you’ll make mistakes on your C3 form.” Trouble can start right there.

Some of what you will need to complete the form:

• Your employer’s name and address.
• The dollar amount of gross wages (before taxes and other deductions) paid per pay period.
• The names and addresses of any other employers you worked for at the time of your injury or illness.
• The name and address of the doctor or hospital that provided your initial treatment.

Deadlines for New York Workers Comp Claims

Procrastination in workers compensation claims is not your friend. Things will not get better if you ignore them. Get busy:

• Notify your employer as soon as possible, but no later than 30 days. Miss this deadline and there’s a good chance you’ll lose your rights to workers compensation benefits.
• Also as soon as possible, file Employee Claim (Form C-3) with The Board. Form C-3 must be filed within two years of the accident/incident, or within two years after you knew (or should have known) you contracted a disease or condition as a result of the nature of your employment.
• Occupational diseases carry specific reporting requirements.
• Have you injured the same body part before, or had a similar illness? That requires filing Limited Release of Health Information (Form C-3.3).
• You can track the progress of your filings.

How to Appeal a Claim Denial

Pre-COVID-19, the vast majority of workers compensation claims were accepted and paid satisfactorily — more than 93% nationwide. Additionally, more than two-thirds of initially denied claims were paid within 12 months, and — according to eye-opening research by Lockton Analytics — claims that were denied, then paid, wound up costing insurers 55% more than those approved in the first place.

Lockton pinpoints, precisely, why denied claims that ultimately are approved cost so much more: Attorney involvement is a significant cost driver in denied claims.

If your initial claim has been rejected, don’t throw in the towel. Consider hiring a workers comp attorney. The odds for a better outcome have tilted in your favor. You and the attorney have work to do. Here are the steps:

• File an Application for Board Review within 30 days of the date of your claim being denied. Your case will be considered by a three-member panel of The Board. The respondent — your employer and/or its insurer — has 30 days from the date your appeal is received to file its rebuttal.
• If either party disagrees with the panel’s ruling within 30 days of its filing, they may file a Request for Full Board review, an administrative appeal that puts the case before the entire Board.
• If the ruling was a split decision — that is, one of the three judges dissented — a Full Board Review is required if requested.
• If the ruling was unanimous, the full Board is not obligated to conduct a review, even if asked.
• Still not satisfied? Final decisions by The Board are subject to additional review in the New York Appellate Division. Again, deadlines must be met and preparations must be made: filing the Notice of Appeal; “settling the record” (agreeing which exhibits, medical records, documents, and testimony should be included) with opposing counsel; and a brief submitted.
• If after all this either side remains opposed, and one of the Appellate Division judges filed a dissent, one final step is available: an appeal to the Court of Appeals, New York’s highest court. Otherwise, the high court is not obliged to hear the appeal.

Eligibility for Workers Comp in New York?

Eligibility is among the least complicated aspects of workers compensation law in New York. Who’s covered?

• Employees at a for-profit business.
• Most employees at not-for-profit organizations. (Uncertain about eligibility? Your answer is here.)
• Many workers who otherwise qualify as independent contractors. (OK, now it gets complicated.)
  • Since October 2010, workers injured while performing services for a contractor are considered that contractor’s employees for the purposes of workers compensation, disability benefits, and paid family leave, subject to the independent contractor test.
  • There is no residency requirement. Employees working in New York State are covered.

What to Do if Your Employer Does Not Have Workers Comp Insurance

Generally, employers in New York State are required to provide workers compensation coverage for employees. Notice of coverage must be posted in their place(s) of business.

Some limited exceptions in specialized fields apply: for instance, licensed real estate agents, media sales representatives, foreign government employees, clergy.

Sometimes, however, employers that are legally required to have workers compensation insurance, simply don’t. Injured or sickened employees (and qualifying contractors) who find themselves in this fix have a couple of options.

File a lawsuit: The workers compensation system is designed to keep employers out of messy personal injury lawsuits. Those that forego the premiums are open to being sued.

You’ll like this: Employers who neglected their workers compensation obligation cannot argue in court the employee’s negligence caused the injuries.

Workers can sue for a variety of losses, including medical expenses; lost wages; physical pain and suffering, disfiguring, and profound scarring; and emotional trauma, including PTSD.

Tap New York’s Uninsured Employers Fund: The Uninsured Employers Fund was designed to aid employees who should have been covered by workers comp.

Benefits: What Does Workers Comp Cover in New York?

Remember the victims of the Triangle Shirtwaist Factory fire? As luck would have it, a New York judge struck down the state’s first workers compensation law the day before the fire. Families sued the factory’s owners in civil court, and won, but the payout was paltry: about $75 per worker, or about three months’ wages.

By contrast, insurers paid the factory owners $60,000 for their property losses.

Rising from the ash of the Triangle Shirtwaist Factory fire-turned-scandal, New York’s pioneering workers compensation laws put an end to such  lopsided, inhumane outcomes. Qualifying workers in the Empire State can expect timely, no-fault compensation that covers medical care (including rehabilitation services), lost wages, and — in the worst-case scenario — a death benefit to the employee’s survivors.

Medical Benefits

Workers comp covers 100% of all reasonable and necessary medical treatment associated with your injury (or illness) so long as it falls within the Workers’ Compensation Board Medical Guidelines. You pay zero deductibles, copays, or other up-fronts or add-ons. You cannot be asked for direct payment, nor can you be asked to use regular medical insurance once you tell them your injury is work-related.

Caveat: Medical providers must be authorized by The Board.

There is no cap on the amount of medical benefits under workers compensation. Ideally, your costs for services needed for healing and rehabilitation will be matched by the payout. Covered costs include tests, MRIs, ultrasounds, X-rays, surgery, and medications.

Properly prescribed pharmacy expenses are covered. So, too, are physician-directed physical therapy and other rehabilitation services. Workers comp also pays for reasonable and necessary medical equipment.

The term in all of the above: Ideally. Sometimes what’s considered “reasonable and necessary” triggers a difference of medical opinion. Getting that sorted to your best advantage is among the reasons you want professional help representing your interests.

Lost Wages

Under New York law, you are compensated a portion of your wages if you are unable to work as a result of a job-related injury or illness. The benefit kicks in when you’ve missed eight days of work. If you lose more than 14 days to job-connected illness or injury, you may receive lost pay starting from your first day missed.

Lost wages are calculated on two things: your average weekly wage (AWW) for the 52 weeks before your injury or illness, and your degree of disability.

Don’t look at the amount deposited in your bank account each week for your calculation. Instead, AWW is based on gross earnings (up to a statewide limit), including overtime and other compensation. It is not based on your take-home pay.

Degree of disability is a percentage of how much a worker is disabled. The Board begins with two-thirds of your AWW, then adjusts that figure by the employee’s degree of disability.

Here’s how that breaks out for someone making $1,200 a week:

• AWW is $1,200 and the worker is totally (100%) disabled. The worker receives two-thirds of $1,200, or $800, multiplied by 100% — so, $800.
• AWW is $1,200 and the worker is 50% disabled. Again, that’s $800, this time multiplied by half, resulting in a $400 weekly benefit.

The equation remains the same. The only variables are the input numbers: for AWW and degree of disability. “Those numbers are important,” Crossett says. Having someone in your corner who’s seen a thing or two successfully argue your disability isn’t 50%, but rather 80% can amount to several hundred dollars a month in lost benefits.

That’s also why injured and sickened workers want to consult locally. Workers compensation law may be the same across the Empire State, but types of jobs can vary widely. There aren’t many logging accidents in Manhattan. There aren’t many tunneling injuries in the Upstate.

“Different industries present different risks,” Crossett says. “People digging tunnels for subways get a particular type of lung ailment. Bakeries are linked to asthma. Potters … you see a lot of hand injuries.

“You want to find someone who has some depth.”

Note, also, that weekly workers comp wage compensation is subject to a state maximum, based on the statewide weekly wage as determined by the New York State Department of Labor and adjusted every July 1. The weekly maximum benefit for injuries or illnesses suffered between July 1, 2020 and June 30, 2021, is $966.78.

Generally, lost-wage benefits are not subject to state or federal taxes.

Disability comes in a variety of classifications. In New York, all injuries are considered temporary at first; some later may be found to be permanent.

• Temporary Total Disability: Your condition prevents you from working and earning, but you are expected to recover. You should receive the full allowable lost wage benefit.
• Temporary Partial Disability: You’ve temporarily lost a portion of your ability to earn full wages. Your benefit is calculated on the percentage of your disability.
• Permanent Total Disability: Your ability to work and earn is complete and permanent. The full allowable lost wage benefit continues for life.
• Permanent Partial Disability, Non-schedule Loss: If your injury/illness causes you to lose some fraction of your ability to work, your lost wage benefits may stretch to 10 full years. Thereafter, if you have lost more than 75% of wage-earning capacity, you may qualify for lifetime benefits.
• Permanent Partial Disability, Schedule Loss: Scheduled losses involve some degree of loss of a limb or extremity: arm, hand, and finger; leg, foot and toe. Loss of eyesight or hearing also qualify as scheduled losses. Statute determines the number of benefits for each, determined by The Board.
• Disfigurement: Depending on the extent of the injury, workers whose faces, head or neck are permanently disfigured may receive up to $20,000.

Sometimes, work-related impairments can linger after the employee is sufficiently recovered and rehabilitated to get back on the job. Workers whose job-incurred injuries prevent them from earning as well as they did previously may be entitled to Reduced Earnings Benefits. Workers may receive up to two-thirds of the difference between pre- and post-injury wages.

Death Benefits

Death benefits accrue to the families of workers whose death results from a work-related injury or illness. As long as the causation is established, timing is not relevant: A death benefit is payable whether the worker dies right after an injury or later.

Work-related death claims require the C-3 form to be signed by the physician last in attendance on the deceased

The worker’s spouse and children share two-thirds of the employee’s average weekly wage, up to the weekly maximum amount. Children receive the benefit until age 18, or until age 23 if they attend college full-time.

Children who are blind or physically disabled receive lifetime benefits. Spouses receive the benefit for life or until remarriage. Spouses who remarry receive a final payment equal to two years of benefits.

No spouse or qualifying children? Potential beneficiaries include dependent grandchildren, siblings, grandparents, or parents. No qualifying dependent family members? Benefits are paid in a different manner: The surviving parents or the deceased worker’s estate may receive $50,000.

Funeral expenses also are payable, up to $12,500 in metropolitan New York and up to $10,500 in all other counties.

Returning to Work in New York

Statistics report a depressing tale for workers sidelined for a prolonged period. After six months, only 50% of injured employees are working again. After two years, only 1% return to work.

The first responsibility of a worker injured or sickened at work is to himself/herself. Healing is Job No. 1. Still, while recovering and going through rehabilitation, it’s a good idea to have a solid strategy for returning to work — one that works for the unique individual that is you, not one copied from someone else who had a similar workers compensation experience.

There are good reasons for getting back to work. Consider the fun and excitement of being among your working colleagues again, and the psychological reward of rejoining a purpose that is bigger than yourself. Consider, also, the practical side of your career: Getting back on the job can get you back on track for raises, promotions, and seniority status, boosting your immediate and long-term compensation.

Your return is a team effort, involving you; your health care provider and team; your employer; your legal representative (if you have one); and, if applicable, your union representative.

Understand, you may run into differences of opinion. You against the physician is not an arrangement to your advantage. As Crossett notes, “The doctor may say you’re capable of doing your job one-handed. An attorney who has been doing workers comp law for a while will be able to present a well-informed counter opinion.”

Keep in mind, workers compensation benefits do not necessarily end when you return to work. If you’re earning less because of your injury or illness, you may qualify for the reduced earnings benefit mentioned above. If you are absent from time to time because of your work-related injury, you may qualify for an intermittent lost time benefit for the time you missed. (You must support your claim with medical evidence.)

Medical care (including equipment or therapy) for your injury/illness is a lifetime benefit. It continues even after you return to work. Ask to be reimbursed for travel costs to and from medical treatment, as well as your payments for qualified medical expenses.

Maintain contact with your employer about your job status. Workers compensation law does not force your employer to keep your job open; however, most employers do take back injured workers. You may be covered under the Family and Medical Leave Act (FMLA), which requires some employers to hold jobs open for up to 12 weeks in a 12 month period for an employee sidelined by a serious health condition.

Need your employer to work with you because of your post-injury condition? The Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide a “reasonable accommodation” to help you do your job. New York State’s Human Rights Law prohibits disability discrimination for employers of four or more.

Feel like you’re getting the run-around on any of New York’s workers compensation fronts? The Office of the Advocate for Injured Workers is there to help you access your workers comp benefits. Email advinjwkr@wcb.ny.gov, or telephone (800) 580-6665.