by Jose Enrique Perez

Last month, I wrote the first part of this article about your rights under the Workers’ Compensation Law. As you know, 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. Remember that the benefits and expenses will not be paid by you, but by your employer’s insurance or the Workers’ Compensation Board through the Uninsured Employers’ Fund.

In the previous edition I informed you that the first thing you should do if you have an accident is to seek medical treatment for your injuries and notify your employer within 30 days after the injury or after your doctor tells you about your occupational disease. Thereafter, you should file a claim for compensation benefits with the Workers’ Compensation Board within the next two years. If you do not do it, you will not be able to claim benefits under the Workers’ Compensation Law. Remember that you notify the Workers’ Compensation Board by filing form C-3 (or C-3S in Spanish). You can obtain the form by calling at 1-800-353-3092 or going online to http://www.wcb.ny.gov/.

You should also remember that almost all workers are covered and may receive medical treatment and wages for time lost because of the injury and/or illness with only a few exceptions. In the previous article, I also informed you that there are two types of coverage under the workers’ compensation law:

1) On the job injuries: All injuries sustained while working for an employer or in the course of employment are covered with only one exception: If you sustain an injury as a result of your use of illegal drugs and/or alcohol, or from trying to self-inflict an injury or inflict an injury to someone else, you may lose the right to benefits under the workers’ compensation law.

2) Occupational disease: If you do not sustain an injury on the job or in the course of employment for the employer, and you, nonetheless, become ill, you may still be entitled to workers’ compensation benefits. This is called occupational disease. An occupational disease is contracted as a result of your work. An occupational disease arises from a specific aspect of the work you do. A typical example is a person who works with computers and develops carpal tunnel syndrome. It is important you tell your doctor what your work involves because you may not even know you have an occupational disease. Occupational disease guidelines and timeframes are complex and different from a regular on-the-job injury. Therefore, you should notify your employer as soon as you learn about it and file a workers’ compensation claim. You are entitled to the same benefits you would have if you had sustained an on-the-job injury. However, you may not even know you are suffering an occupational disease because either you have not lost time from work or you think it’s unrelated to your work. Therefore, you should talk to your doctor not only about your symptoms, but also about your job activities. If you are not sure whether your case qualifies for benefits, you should contact an attorney immediately.

What Benefits Are You Entitled To Under The Workers’ Compensation Law?

Wages: If you are totally or partially (temporary or permanently) disabled from your work duties, you are entitled to lost wages. The amount of your lost wages will be determined based on your average weekly wage. The average weekly wage is based on the wages you received for the fifty-two weeks prior to the injury. Even if you have not been working for fifty-two weeks, you are still entitled to an average weekly wage of a similar worker. Once the average weekly wage has been determined, your lost wages will be based on your degree of disability pursuant to your doctor’s opinion (see below degrees of disability). However, the maximum you are entitled to for lost wages is the two-thirds of your average weekly wage. As of 07/01/15, the maximum allowed is $844.29 a week.

Medical treatment:   Medical treatment will be authorized for all work-related accidents and/or occupational diseases. You will receive medical treatment even if you do not lose time from work. You can choose any medical provider you know or you can call the Workers’ Compensation Board to obtain a list of authorized medical providers. You are entitled to receive medical treatment even if you move to another state. The medical providers will not charge you directly for the services rendered. Therefore, you do not have to pay for the medical bills related to your workers’ compensation claim. The medical services include but are not limited to emergency room visits, hospital care, surgery, chiropractic treatment, laboratory tests, prescribed drugs, and assistive devices. You are also entitled to receive reimbursement for travel expenses to and from medical providers and co-pays.

Reduced earnings: If you return to work in a diminished capacity, you may still be entitled to additional benefits. That is, if you return to work, but your work-related injury or occupational disease keeps you from earning the same wages you received prior to it, you are entitled to the difference. This is called “reduced earning.” You are entitled to reduced earnings benefits even if you are working for a different employer. As you know, employers are not required to provide you with light duty work even if you are able to return to work. However, this is a separate issue I will address in another article. Notwithstanding that, the employer may still be liable for discrimination (please see the discrimination section below).

Rehabilitation and social work: Rehabilitation services may help you return to work. Rehabilitation services include but are not limited to medical rehabilitation, social workers, vocational rehabilitation, counseling programs, training programs, and selective job placement. Some of these rehabilitation services are arranged by the Workers’ Compensation Board. Please contact the Workers’ Compensation Board and/or your attorney to determine what type of services you are entitled to pursuant to your doctor’s recommendations.

Death benefits: The family of a worker may be entitled to death benefits if the worker dies as a result of his work-related injuries and/or occupational disease. The death benefits vary depending on whom the family member is. If the spouse alone survives the worker, the spouse will receive two-thirds of the worker’s average weekly wage (as of 07/01/09, the maximum is $844.29). The spouse will receive death benefits for life unless he or she remarries. Even if the spouse remarries, however, he or she is entitled to two years of benefits. If the worker is survived by the spouse and children, the spouse and children will receive and share the two-thirds of the worker’s average weekly wage. Children will receive death benefits until they reach the age of eighteen or, if they are attending college, until they reach the age of 23. If the worker has a child who is physically disabled, the child will receive death benefits for the rest of his or her life. If the worker is not survived by a spouse or children, other family members may be entitled to death benefits. The worker’s family is also entitled to funeral expenses.

Reinstatement and discrimination: The workers’ compensation law has specific provisions dealing with discrimination. An employer cannot fire you because you filed a workers’ compensation claim. In addition, an employer cannot retaliate against you because you have or will testify in a workers’ compensation case. Furthermore, a potential employer cannot discriminate against you because of your workers’ compensation history. The statute of limitations for filing a claim of discrimination against your employer or potential employer is two years. That is, you have two years to file a discrimination claim or retaliation claim under the workers’ compensation law within two years from the discriminatory or retaliatory conduct of the employer or potential employer. If the employer or potential employer discriminated or retaliated against you, you will be entitled to reinstatement and back pay for the time you were out of work because of the discrimination and/or retaliation.

Disability benefits in case the employer and/or insurance carrier objects to the claim: As you will see later, the employer and/or its insurance carrier can object to your workers’ compensation claim. If this happens and you are not receiving workers’ compensation benefits, you may be entitled to disability benefits by filing a form called DB-450. Please note, however, that you will be required to pay back any disability payments from your lost wages once the case is established.

Social Security benefits:   You may be entitled to Social Security Disability benefits on top of your workers’ compensation benefits as a result of your work-related injury and/or occupational disease. This is an issue I will address in a separate article. However, in the meantime, you should contact your local Social Security office to find out if you qualify for disability benefits or not.

In Part III, next month, I will talk about the problems or issues you may have in your case. 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 an 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 York 13202. Now with offices in Buffalo and Rochester!!! Please look for my next article in the June edition.