If You Find Yourself the Victim of a New York Workplace
Accident or Illness, a Basic Understanding of the New York
Workers’ Compensation System Will Come in Handy
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Most of us leave for work in the morning with every intention of returning home
at night without incident. Unless you work in a particularly dangerous profession
you probably don’t worry overmuch about the possibility of being injured while at
work; however, workplace accidents do happen far more frequently than most
people realize. Illnesses that are caused by exposure to toxic substances in the
workplace also cause workers to become ill at an alarming rate. Despite efforts by
both state and federal agencies to reduce the number of workplace injuries and
illnesses throughout the United States you still stand a good chance of suffering a
work-related injury or illness at some point in your lifetime. If you do find
yourself the victim of a New York workplace accident or illness, a basic
understanding of the New York workers’ compensation system will come in
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WHAT IS WORKERS’ COMPENSATION?
Prior to the implementation of state workers’ compensation systems throughout
the United States workers injured on the job, or who became ill as a result of their
job, were forced to pursue compensation through the traditional tort system by
filing a personal injury lawsuit. Not only did this mean that compensation was
significantly delayed, causing extreme financial hardship, but a worker was
required to prove negligence (fault) on the part of the employer to be entitled to
compensation at all. Not surprisingly, workers were commonly left without any
realistic recourse for serious, even fatal, injuries and illnesses. The concept of
workers’ compensation was developed as a way to provide compensation for
workers without the inherent delays of the traditional tort system and without the
need to prove negligence.
Today’s workers’ compensation system provides benefits to injured/ill workers
when certain eligibility guidelines are met. Most importantly, the workers’
compensation system is a no-fault system, meaning that a worker is not required
to prove that the employer did anything wrong to be entitled to benefits. Except
in rare situations, workers’ compensation is the exclusive remedy for workplace
accidents/illnesses, meaning that a worker cannot sue an employer in a
traditional personal injury lawsuit if the injury/illness is covered by workers’
WHO IS COVERED BY WORKERS’ COMPENSATION IN NEW
The New York Workers’ Compensation Law, or WCL, requires almost all workers
to be covered by workers’ compensation, including, but not limited to:
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Workers in all employments conducted for-profit, including part-time
employees, borrowed employees, leased employees, family members and
volunteers working for a for-profit business.
Employees of counties and municipalities engaged in work defined by the
law as "hazardous".
Domestic workers employed forty or more hours per week by the same
employer, including full-time sitters or companions, and live-in maids.
Farm workers whose employer paid $1,200 or more for farm labor in the
preceding calendar year.
Public school teachers, excluding those employed by New York City, and
public school aides.
Employees of the State of New York, including some volunteer workers.
Although the New York WCL is a comprehensive law that covers most workers,
there are some groups of workers who are not covered under the law. Examples
of workers who are not covered by the New York WCL include:
Volunteers for non-profits
People who are covered by another workers’ compensation law, such as one
of the many federal workers’ compensation acts.
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People doing casual chores
Sole proprietors and partners
When there is confusion as to whether workers’ compensation was required or
not it usually stems from the distinction between and employee and an
independent contractor. Not surprisingly, employers often try to characterize the
relationship as employer/independent contractor while a worker may argue that
he/she was an employee and, therefore, entitled to workers’ compensation
coverage. When a dispute arises regarding a worker’s status for purposes of
workers’ compensation a workers’ compensation judge may have to decide the
issue. Factors that are typically used to by a judge when determining a worker’s
Right to control
Character of work
Method of payment
Right to hire/fire
WHAT BENEFITS ARE AVAILABLE?
Workers’ compensation benefits are divided into two categories – medical and
wage replacement benefits. Medical benefits cover the reasonable costs
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associated with treating your injury or illness. Wage replacement benefits are
intended to cover your lost income during the period of time you are unable to
work because of your injury or illness.
Depending on the severity of your injury/illness you could initially be entitled to
temporary partial or temporary total disability benefits (TPD or TTD). If your
doctor certifies that you are unable to perform any type of work you will receive
TTD benefits. If you are able to perform some work but your disability prevents
your from earning what you did before the accident/illness you will receive TPD.
If it is determined that you have suffered a permanent injury or illness that
impacts your earning ability you may eventually be moved from TPD/TTD to
permanent partial or permanent total disability (PPD or PTD). Your weekly
benefit amount will remain the same but you will be entitled to benefits for a
longer period of time.
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In the event that a worker is fatally injured or suffers a terminal illness as a result
of his or her employment, the deceased worker’s survivors may be entitled to
weekly benefits and/or a lump sum cash payment.
HOW MUCH WILL YOU RECEIVE IN WEEKLY BENEFITS?
Wage replacement benefits are not available for the first seven days of your
injury/illness. After that, the amount you receive in weekly wage replacement
benefits depends on your wages
prior to the date you filed your
claim. If you injury/illness
ultimately lasts longer than 14
days you will be retroactively
compensated for the initial seven
day waiting period. Your benefit
amount is calculated using your
average weekly wage, or AWW.
Your AWW is determined by averaging your earnings for the year prior to the
date of the injury or illness. Your weekly benefit amount for temporary total
benefits is two-third of your AWW. For example, if your AWW amount is $650
your weekly benefit amount would be $435.50 ($650 x 0.67 = $435.50). If you
are only eligible for temporary partial benefits the calculations are a bit more
complicated. New York employs both a minimum and a maximum benefit
amount that is based on the New York State average weekly wage from the
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APPLYING FOR NEW YORK WORKERS’ COMPENSATION
If you are injured while on the job, or
you believe that an illness is work
related, you should notify you
supervisor and file a workers’
compensation claim immediately. By
law, your employer must provide you
with information about the employer’s
workers’ compensation insurance carrier so that a claim may be filed. In addition,
a C-3 Form should be filed with the Workers’ Compensation Board. Your
employer can either accept the claim or deny the claim. If the claim is accepted
and approved by the WCB, benefits will begin. If your employer challenges the
claim it will be denied by the WCB. You have a right to appeal the decision made
on your claim; however, the farther you move up the appeals ladder the more
difficult it becomes to get a claim approved.
If you have suffered a work related injury or illness in New York it is in your best
interest to consult with an experienced New York workers’ compensation
attorney as soon as possible to ensure that your rights are protected and to
increase the likelihood that your claim will be approved without the need to
appeal. At Simon & Gilman, LLP, we can evaluate your workers’ compensation
claim and advise you as to your rights.
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Workers’ Compensation Board, Injured on the Job?
New York Workers’ Compensation Board, Workers’ Compensation
New York City Bar, A Guide to Workers’ Compensation in New York
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About Simon & Gilman, LLP
Simon & Gilman is the premier law firm in the Queens and New York Metro area. They have
expertise in many areas of practice and can help you resolve legal issues that you are
We handle all types of injury cases, including automobile accidents, sidewalk and stairway,
elevator, escalator, slip, trip and fall cases, bus, train and plane accidents, sporting activity
accidents, snow & ice, defective products, medical malpractice, nursing home, hospital, school
accidents, work and construction related accidents, and accidents involving New York City,
New York State, and the U. S. Government.
SOCIAL SECURITY DISABILITY
Representing individuals who have applied for, been denied and refused disability benefits.
We pursue all levels of appeal through the Hearing level, Appeals Council and, if necessary, to
the Federal Courts
Representing individuals who have been arrested or about to be arrested, from violations to
misdemeanors to felony charges, from arraignment through trial, if necessary including
domestic violence, assault, shoplifting, driving while intoxicated (DWI), crimes against the
person and/or property.
Representing you and your loved ones in the preparation of Wills, Living Wills, Trusts, Health
Care Proxies, Powers of Attorney, and estate planning.Probate and Administration of estates;
contested will proceedings and all phases of Surrogate’s Court actions. Arrangements can be
made to come to your home or hospital if necessary to prepare any such documents.
Though often emotional, your case is handled with sensitivity and compassion. Includes such
matters as: annulment, divorce, separation, custody, visitation, support, adoption, pre-
nuptial/post-nuptial agreements, paternity, Orders of Protection, name changes, Family Court
& Supreme Court matters.
Representing buyers and sellers in both residential and commercial matters, condominiums
and cooperatives. Landlord/tenant matters involving non-payment, holdovers and unlawful