What to Do if You Are Hurt at Your New Job

You have rights under New York law, even if you haven’t been on the job for long

Getting injured on the job is always a painful and difficult experience, and it gets even harder if you haven’t been at your job for long. You may not know who to talk to or worry about your job security. Nevertheless, whether due to inexperience or just bad luck, many new workers do get injured, so it’s important to know your rights.

The good news is that every employee has the same protection under New York workers’ compensation law, whether you have been at your job for three days or three decades. While certain aspects of the process may be somewhat different if you only recently started your job, overall, you can still access workers’ compensation benefits, and you are protected from retaliation by your employer. Our experienced attorneys can help you navigate the process.

Unlike other benefits, workers’ compensation is available immediately.

Many job benefits have a waiting period. It’s common to wait 60 or 90 days before you can get health insurance through your employer, for example. Likewise, you may have to wait before you can participate in a retirement program or qualify for life or disability insurance.

However, workers’ compensation works differently. New York law requires virtually all employers to carry workers’ compensation insurance for every employee, and that does mean every employee, even if you are part-time, seasonal, or brand-new. If you get hurt on your first day at work, you are eligible for workers’ comp. It’s that simple.

Workers’ comp pays for the full cost of reasonable and necessary medical care.

The lack of a waiting period isn’t the only difference between workers’ comp and health insurance. By law, workers’ compensation must pay for the full cost of reasonable and necessary medical treatment for your work injury, including but not limited to:

Doctor’s appointments
Surgery and other medical procedures
Physical therapy and other ongoing treatment
Hospitalization
Medication and medical devices
Follow-up appointments

There are no co-pays, deductibles, or other out-of-pocket expenses with workers’ comp. The full cost is covered. There is also no policy limit or end date; if you have a permanent injury that requires ongoing care, that is covered, too.

The catch, of course, is that the insurance company may dispute whether medical treatment is “reasonable and necessary” for a given injury. They can even require you to attend an “independent” medical examination (IME) to assess your injuries and the need for treatment. Our attorneys can advocate for your rights throughout the process and help you obtain the treatment you need.

Workers’ comp also replaces your lost wages, but that’s calculated differently for new workers.

If you are unable to work because of a work injury, workers’ comp pays two-thirds of your average weekly wage (AWW) for as long as you are unable to work. This benefit starts on the eighth calendar day of disability; if you are disabled for more than 14 days, then you will retroactively receive benefits for the first seven days as well. If you need to take on reduced duties for reduced pay, then workers’ comp pays two-thirds of the difference between your pre-injury AWW and your current income. And if you have a permanent, disabling injury to certain parts of the body, you can qualify for schedule loss of use (SLU) benefits, which again are calculated based on your AWW.

Normally, the average weekly wage is calculated based on your pay for the 12 months prior to the injury, divided by 52 weeks. The 12-month lookback period is important because many jobs have busy seasons, fluctuating overtime, bonuses, and so on that can affect your average compensation. Looking at a full calendar year of paychecks gives the workers’ compensation system a better sense of what you actually earn.

But what happens if you haven’t been at your job for 12 months? If you have worked “substantially the whole” of the year—say, 11 months—then it may be possible to calculate your AWW by simply prorating your pay to a full year and then dividing by 52. However, if you have only been at your job for a few days or weeks there simply isn’t enough information to meaningfully compute your average weekly wage.

In that situation, the employer is required to give the Workers’ Compensation Board the salary information for a similarly situated worker. Your AWW will then be calculated based on the similarly situated employee’s pay history. There are a few rules determining who counts as a similar worker:

The other worker must be of the same class as you,
The other worker must have worked substantially the whole of the previous year,
The other worker must have worked in the same or similar employment as you, and
The other worker must have worked in the same or a neighboring location.

If there is no similar worker who has worked at least 12 months—for example, if you are in a newly created position at the company, or if the company itself is new—then the Board has discretion to determine what your annual earning capacity would have been, based on whatever limited earnings you have received and other relevant evidence.

Depending on the situation, the calculation of your AWW in these circumstances can be contentious. That’s why it’s important to have a workers’ compensation lawyer who can fight for the maximum compensation you need and deserve.

What to do if you are hurt at your new job

Again, if you are hurt on the job, even on your first day, you have legal rights and protections under New York law. Take the following steps to protect those rights:

Report the injury. If you know what your new employer’s protocol is for reporting work injuries, follow it. Otherwise, tell your supervisor, the person responsible for your training, the HR employee who did your onboarding, or someone else in charge. Make sure you get the report in writing. Remember, your employer cannot legally retaliate against you for filing a workers’ compensation claim.
Get medical attention. In New York, you are generally free to choose your doctor for a work injury, as long as the doctor you choose is authorized to treat work injuries by the Workers’ Compensation Board. You can search for an authorized health care provider on the Board website. You can also ask your existing primary care provider if they accept workers’ comp, or if they can refer you to a doctor who does. The important thing is that you get checked out by a doctor as soon as possible and comply with your doctor’s instructions.
File a workers’ compensation claim. Legally, you have up to two years from the date of injury to file a claim, but we recommend doing so as soon as possible to protect your rights and options in the workers’ compensation process.
Talk to a workers’ compensation attorney. Navigating the workers’ compensation system can be a difficult process. We know the system inside and out because we’ve been representing injured New Yorkers for decades. Our attorneys can help you deal with the insurance company and level the playing field while you focus on getting better.

Getting hurt on the job when you’re new to the job can be difficult, but you don’t have to deal with the process alone. The workers’ compensation attorneys at Pasternack Tilker Ziegler Walsh Stanton & Romano LLP are here to help. If you’ve been injured at work, give us a call or contact us online for a free consultation with an experienced New York work injury attorney.

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