WORKERS’ COMPENSATION…WHAT ARE MY RIGHTS? (Part III)

In Part I, I explained to you that New York State has a workers’ compensation law dealing with accidents of workers and occupational diseases.  The workers’ compensation law sets forth the procedure for obtaining benefits when you are out of work because of a work-related accident or occupational disease.  The law requires almost all employers to have coverage for all workers.  Even if an employer, however, does not have workers’ compensation coverage for its workers, you will be still entitled to benefits under the workers’ compensation law because the Uninsured Employers Fund unit will step into the shoes of that employer.

In Part II, I talked about the benefits you are entitled to under the workers’ compensation law. Some of the claims or requests you can make are: Wages; Medical treatment; Reduced earnings; Rehabilitation and social work; Death benefits; Reinstatement and discrimination. There are also disability benefits in case the employer and/or insurance carrier objects to the workers’ compensation claim and Social Security benefits, which you may be able to get even if you are receiving workers’ compensation indemnity.  

 

Can The Employer Or The Carrier Object To Your Claim For Benefits Under Workers’ Compensation Law?  The employers and/or insurance carriers have a right to object to the workers’ compensation claims and dispute their liability for such claims.  There are many reasons for which the employer or its insurance carrier may object to the worker’s claim.  The reasons include, but are not limited to:

• Prima facie medical evidence;
• Accident within meaning of workers’ compensation law;
• Accident arising out of and in the course of employment;
• Occupational disease within meaning of workers’ compensation law;
• Occupational disease arising out of and in the course of employment;
• Notice;
• Employer-employee relationship;
• Causally related accident or occupational disease;
• Causally related death;
• Proper employer entity;
• Cancellation of coverage;
• Proper carrier;
• Subject matter jurisdiction; and
• Timely filing.

The employer or the insurance carrier can object to the workers’ compensation claim by filing form C-7.  They will list their objections to the claim.  Thereafter, a Workers’ Compensation Board hearing will be held before a workers’ compensation law judge, board examiner, and/or conciliator. 

The employer and/or the insurance carrier can also object after the case has been established.  For example, they can object to the need for treatment or to your degree of disability.

What Are The Degrees Of Disability Under The Workers’ Compensation Law?  Your treating physician will determine what your degree of disability is.  That means that the doctor will state how much your injury and/or occupational disease disables you from work.  Please note that the indemnity you will receive for lost wages will be based on the degree of disability.  There are several degrees of disability, and the disability may be either permanent or temporary:

Total disability:   You are totally disabled when your treating physician states that you cannot return to work under any circumstances.

Partial disability:   Your are partially disabled when your treating physician states that you have lost the ability to return to work on a full basis.  The doctor may indicate a percentage of disability.  Commonly, however, there are three percentages of partial disability:

A.        Marked degree of disability:   If your doctor indicates that you have a marked degree of disability, you may return to work with heavy restrictions.  It means that you are 75% disabled. 

B.         Moderate degree of disability:   You have a moderate degree of disability when your treating physician indicates that you are 50% disabled. 

C.        Mild degree of disability:   If your treating physician indicates that you are 25% disabled, you will be deemed to have a mild degree of disability.

Remember that your indemnity for lost wages will be determined pursuant to your degree of disability.  The employer and/or its insurance carrier have a right to dispute your doctor’s opinion regarding your degree of disability.  Therefore, the employer and/or its insurance carrier may require you to see an independent medical examiner of its choice.  An independent medical examiner will issue an opinion in regards to your degree of disability.  If there is any dispute between your treating physician’s degree of disability and the independent medical examiner’s opinion pertaining to your degree of disability, the workers’ compensation law judge, a board examiner, or a conciliator will determine how disabled you are. 

Please note that once you have a permanent total or partial disability, you will be entitled to other benefits under the workers’ compensation law (i.e., schedule loss of use, classification, etc.). 

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about the workers’ compensation law and your rights under it.  Even though you can represent yourself before the Workers’ Compensation Board, it is advised you retain an attorney.  Please note that you do not pay directly for the services of the attorney.  In point of fact, if your case is not successful, you do not owe anything to the attorney.

I represent individuals in Workers’ Compensation cases.  If you have any questions or concerns about a Workers’ Compensation case or a work accident, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at joseperez@joseperezyourlawyer.com. The Law Office of Jose Perez is located at 120 East Washington Street, Suite 925, Syracuse, New York13202. Please look for my next article in the October edition.