How To Get The Worker's Compensation Benefits You Deserve

If you suffer from an accident, injury or disease due to your job you are eligible for compensation awards and medical care that is paid by your employer's insurance company. The Worker's Compensation Law of the State of New York covers these work-related injuries. In order to receive benefits under the law you must file a claim with the Workers Compensation Board. Our law firm is experienced in helping workers sort through the many confusing issues involved with the filing of your Worker's Compensation claim and with moving the claim through the Worker's Compensation system.

Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP (formerly Brecher Fishman et al, P.C.) has specialized in the representation of the injured worker in regard to their Workers Compensation, Volunteer Fireman's Benefits Law and Auxiliary Police Claims since the 1930's in the State of New York. The office provides representation before the New York State Workers Compensation Board from the initial filing of claims through the complete Boards Appeal Process.

Workers Compensation Claims fall into two general categories: accidental injuries which occur on the job, and occupational diseases which are illnesses caused by the kind of work you do. Both of these types of claims may result in permanent injuries..

Recognizing A Workers Compensation Claim

Employees are covered under the New York State Worker's compensation law for Accidents and Occupational Diseases occuring in and out of a worker's employment. An accidental claim under the law is defined as an injury or pathological process that affects an emploee as a result of an occurrence at work. In order for a claim to be considerd an accident the occurrence must be unexpected or of a nature that a "common average person" would consider accidental in nature. For example, an individual who is injured as a result of a heavy lift, push or pull at work would be covered at work. However, an individual who merely arises from a chair without twisting or turning his or her back and experiences pain would not be covered under the statute. The occurence does not have to happen directly to the claiment for it to be compensable.

Occupational diseases are pathological processes that occur to a claimant as a result of the very nature of the work. Examples of occupational diseases are asbestosis, silicosis, asthma and repetitive stress type injuries such as carpal tunnel syndrome. A disease or pathological process that does not arise out of the very nature of the work itself will not be compensable. For example, if a nurse contracts tuberculosis while working that would clearly be compensable. However, if a trucker were to contract the same disease while exposed to a co-worker that case would not be compensable. The reason is, that in the second example, the disease did not arise out of the very nature of the trucker's work.

Some claims are more difficult to recognize that others. For example, if an individual were called upon to perform extremely heavy lifting and experienced chest pains as a result, a subsequent heart attack in close enough proximity to the lifting event has been found to be compensable.

Workers Compensation Claim Notice Requirements

Section 18 of the Worker's Compensation Law requires that employees give notice of an accident to their employer within 30 days of the occurrence. While the law mandates that such notice be in writing, cases allow it to be orally. Exceptions to the rule include incapacity, lack of predjudice and cases where the claimant doesn't realize the seriousness of the injury. Section 28 requires that claims for accidents be filed within two years at the Worker's Compensation Board. For occupational diseases Section 40 provides the same two years applies to file a claim, but the time to file runs from the date of disability or whenever the claimant knew or should have known of the relationship of his disease to his occupation, whichever is longer.

Basic Benefits For Worker's Compensation

The New York State Workers Compensation Law provides lifetime medical care for accidents and occupational diseases under the law. A claiment is also entitled to receive reimbursement for incidental medical expenses such as prescriptions, bandages and the transportation expenses to and from his medical providers. Medical care has been found to include all attendant items for the care and treatment of a person's injuries or occupational disease. This includes all manner of items necessary for the well being of the individual. In addition, the law provides for indemnity payments to claiments when they are unable to work or sustain reduced earnings as a result of their disability. A claiment receives two thirds of his salary up to the maximum applicable benefit for total disability. Partial disability is determined based upon the claiment's wages, ability to work and transferable skills.

Schedule Loss of Use

If an individual injures a limb or portion thereof, the law provides, when a claiment has received a maximum benefit of care, a schedule of awards which could produce a monetary award, even if the claimant has not lost a single day of work. This section of the law also applies to injuries to a worker's eyes and ears. The law provides, however, that prior payments of Worker's Compensation and salary are deducted from these awards. The law includes an award for facial scars of up to $20,000. This award is restricted to visible scars about the face and head above the clavicle. If an individual sustains a head, neck, back, heart, lung or other injury or disease that is not one covered by a schedule loss and has continuing reduced earnings, the payments may go on indefinately. (As of 3/13/07 injuries that are classifiable are capped according to the extent of disability. The cap is calculated from the point the claimant is found to have sustained a permanent disability). The firm of Brecher Fishman Pasternack Walsh Tilker & Ziegler, P.C. works aggressively to protect their client's interests and make sure that their clients receive the best compensation award possible under these new and complicated guidelines.

Medical Proof of Claim

The law requires that an injured employee only obtain medical services from a coded medical provider. This does not apply in emergency situations or when the claimant is a resident out of state. It is the obligation of the claimant to produce medical reports certifying that they are disabled at least once every forty-five days. When a doctor wants to perform a special test or procedure costing more than $500 (UNDER NEW LAW RAISED TO $1000), the doctor must get the carrier's authorization. Rule 325 1.4 requires the carrier to respond within thirty days. If the carrier fails to respond within thirty days the special services are deemed authorized. The carrier must have a valid medical opinion to object.

A report must contain 1) a history of the accident or occupational disease, 2) a diagnosis, 3) a statement of disability, 4) a statement of causality and a signature of the consultant. The report should also contain the results of any tests, clinical findings and any requests for specil services needed.

Claimants are not responsible to pay for any treatment rendered to them on a case. Medical providers are given an arbitration procedure to resolve their bills. When a carrier refuses to authorize medical treatment, such issues must be resolved at a hearing. The carrier has a right to have the worker examined by their medical consultant within a reasonable travel distance from the claimant's residence.

Workers Compensation Hearings

The Workers Compensation Law provides a procedure wherein hearings can be scheduled before an Administrative Law judge to resolve the issues between the claimant and the carrier.The law also grants the right of both sides to be represented by attorneys. When a claimant retains counsel, the amount of the fees are decided by the Administrative Law Judge and deducted from the claimant's award.

Either side may appeal to the Worker's Compensation Board if they disagree with the Judge's decision. Further appeals of law are allowed to the Appellate Division and thereafter, if accepted for review, to the Court of Appeals. Brecher Fishman Pasternack Walsh Tilker & Ziegler, P. C. has the knowlegable attorneys, extensively experienced in the entire appeals process, to work with each and every one of their many clients to achieve a satisfactory conclusion to their Workers Compensation claim.

Carrier Defenses

A carrier may raise many types of defenses in a claim. The carrier can ask to have the case disallowed if the case is not an accident or occupational disease coverd under the law. Furthermore, a case can be disallowed because the claimant did not give the requisite notice. A carrier can always object to any award on the basis that the claimant is not disabled, or the disability is not related to the accident or the occupational disease. Lastly, a carrier can defend a case on the basis of the claimant withdrawing from the labor market (i.e. refusing light work if in the claimant's ability) or fraud.

Preexisting Pathology and Injuries

The carrier will often raise the issue of a preexisting pathology or injury, as affecting the right of a claimant to receive full benefits under the law. The law always has two competing notions of how to treat the problem. The first is the common law rule that "you take someone as you find him". This means that if someone had a preexisting problem that is aggravated by the occupational disease or injury, the carrier would be responsible for the problem. However, the "flipside" of the theory is that under certan circumstances, the carrier may be entirely or partially relieved from paying benefits where a prior active or disabling condition exists. In the case of an accident, the carrier is liable for an aggravation of an existing condition. However, in the case of an occupational disease the cases are a bit stricter in requiring that the work create a pathology or disability that was not there before the claimant enterd the work.

As many claimants who have traversed the system know, sometimes the carriers are difficult to deal with and the only way to resolve issues is through hearings before Administrative Judges. Our team of highly skilled and experienced attorneys provides aggressive representation to assure the claimant of the protection of their rights to benefits before the Workers Compensation Board.

Over the years our firm has helped thousands of New York workers get the Workers Compensation Benefits that they deserve, serving our fellow workers in Manhattan, Brooklyn, Kings and Queens Counties, Staten Island, The Bronx, Rockland, Westchester and Nassau and Suffolk Counties.