Resource Guide

Introduction

Part 1: The Workers' Compensation Process

Part 2: Special Issues In Workers' Compensation

WHAT BENEFITS AM I ENTITLED TO?

The Workers' Compensation Law provides medical and lost wage benefits to injured workers. Workers' Compensation does not provide benefits for pain, suffering, loss of enjoyment of life, and other non-economic damages that can be recovered in personal injury lawsuits. If your employer and its insurance carrier do not dispute your claim, it will be "accepted". If they "controvert" your claim and you are able to prove accident or occupational disease, notice and causal relationship, your case will be "established" by the Workers' Compensation Board. Once the case is accepted or established you will be entitled to the following benefits:

Medical Benefits

Once your claim is established, you are entitled to all necessary medical expenses that are causally related to the injury. As long as the medical treatment is reasonable and necessary to the improvement of your condition, the Workers' Compensation insurance carrier is responsible for the payment of the medical expenses. The treatment must be directly related to the injury sites established by the Workers' Compensation Board. For example, if your claim is established for an injury to your low back and you go to a chiropractor who also treats your neck, the insurance company has a right to reject that portion of your bill which relates to the neck treatment.

In order for medical treatment to be covered it must be a type of treatment that is commonly accepted and performed in the general medical community. Items such as doctor visits, physical therapy, chiropractic care, diagnostic studies, surgery and follow-up treatment are normally viewed by the carrier as reasonable. However, treatments such as acupuncture, aromatherapy and holistic medicine are not easily accepted by the insurance carrier and should be discussed with your attorney before medical expenses are incurred. It should also be noted that the Workers' Compensation Law does not permit treatment with a chiropractor and physical therapist during the same period of time. You should finish one type of treatment before the next type is started. A compensation claimant is always entitled to a second opinion regarding his or her treatment.

It should also be noted that any treatment or testing that costs more than $500.00 must be pre-approved by the Workers' Compensation carrier. Authorization for diagnostic studies that cost more than $500.00 must be requested before the study is performed. Additionally, any treatment that is to take place outside New York State must be pre-authorized. It is in your best interest to obtain written approval from the insurance carrier before obtaining any out of state treatment. If you do not obtain prior approval, you may be responsible for the high cost of out of state treatment. If your doctors have any questions regarding authorization and approval for treatment, please have them contact our office.

Lost Wages

As a Workers' Compensation claimant you are entitled to lost wage payments for periods of time in which you have medical proof of a loss of earnings due to the work injury. In order to receive lost wage payments, your loss of earnings must be directly related to your work injury and not solely due to economic factors. Any claim for lost wages must be backed up with medical evidence demonstrating a work related disability.

Certain employers will pay you your full wages while you are out of work due to a work related injury. However, most people receive only a fraction of their regular earnings. The first step in determining your benefit rate is calculating an average weekly wage (AWW). The AWW is calculated by reviewing your payroll records for the 52 weeks prior to your injury date, and using one of a variety of formulas to come up with an average. If you worked less than a full year before getting injured, a divisor method will be used to calculate your AWW. If you worked for a very short period of time, the payroll records of a "similar employee" may be used to calculate your AWW. The calculation of the AWW does not include consideration for future benefits, but should include overtime and bonuses. The AWW does not include fringe benefits such as contributions to retirement accounts, 401K plans and other private benefits. Once the AWW is established it does not change. The AWW remains the same regardless of changes in job status.

The payments you are entitled to receive are calculated by applying your medical degree of disability to your AWW. If your medical records indicate that you are totally disabled, you are entitled to receive two-thirds of your AWW, up to a statutory maximum of $400.00 per week. Two-thirds of your AWW is your "temporary total" or "TT" rate. If your medical records indicate that you are partially disabled, you are entitled to receive a percentage of your temporary total (TT) rate. Please note that in order to be considered totally disabled, you must be totally disabled from any and all work. If your doctor says you are totally disabled from your regular job, but able to perform some other type of work, you will only receive a partial compensation rate.

The Workers' Compensation Board uses the following terms to determine the degree of an injured worker's disability:

Your doctor should submit a report using one of these terms each time you are examined. Here is an example of how the AWW and disability terms are used to calculate your benefit rate. Sue's AWW is $300.00. Therefore, her TT rate is $200.00 (two-thirds of $300.00). The most Sue can ever receive as a Workers' Compensation lost wage benefit is $200.00 per week. She can only receive that amount if she has strong medical evidence indicating that she is totally disabled. If Sue's doctor says she has a marked disability, she can only receive 75% of her $200.00 TT rate, or $150.00. If her doctor says she is moderately disabled she can only receive 50% of her TT rate, and so on. The benefit amount will also be affected by the opinions of insurance company doctors. The topic of "Independent Medical Examinations" is discussed in detail at page 8.

If you are under age 25 at the time of your work injury, and the injury results in permanency, (see pages 11 and 12) special considerations will be made regarding your AWW. The Board will consider your "wage expectancy". In such cases, you can expect some increase in your AWW based on a prediction of what your earnings would have been if you continued to work at the same job for the period of time between your injury and your 25th birthday. For example, if you were 20 years old on the day you got hurt, the Board will look to the wage of a similar worker who has five years experience at the place of employment.

The most important thing to remember about Workers' Compensation medical and lost wage benefits is that you must prove your ongoing entitlement to them. In order to keep receiving benefits you must continue to treat for your injuries and have your doctors submit regular medical reports.