March 11, 2007

Workers Compensation

Source: NYSUT Health and Safety

Introduction

Every year, tens of thousands of workers in New York are injured on the job, or become ill because of job exposures to hazardous substances or repetitive work processes. Too many of these workers, including NYSUT members, fail to receive the benefits they are entitled to from the Workers' Compensation system. This equates to hundreds of thousands of dollars of wage and medical benefits that are not claimed. Workers Compensation is a social insurance system that gives partial wage replacement for temporary or permanent loss of earnings for job-related injuries and illnesses. It also provides total medical care and hospital treatment and a variety of death and survivor benefits. It is a no-fault system that entitles workers to compensation regardless of how the job injury or illness occurred. At the same time, workers cannot sue their employers for negligence related to their injury or illness. Although far from a perfect arrangement, Workers' Compensation is an important benefit to the working women and men of New York State.

What's Covered/ Not Covered

The only NYSUT members not covered by state Workers' Compensation law are New York City teachers, who are covered by other systems.

Under Workers' Compensation, workers are entitled to benefits when they suffer an on-the-job Accidental Injury or Occupational Disease. Accidental injuries can be compensated unless the employer can prove your injury was self-inflicted or caused solely by intoxication or use of a controlled substance. If the injury happened away from the employer's premises, you may still qualify for benefits if the reason you were off the premises was related to the job.

To get benefits for occupational disease you must prove your job exposure contributed to your illness and that the exposure is due to the nature of the work you performed. Work-related psychological problems, such as stress, can also be covered.

When to File

You have two years from the date of your accident or, in the case of occupational disease, from the time you know, or should have reasonably known, your condition is work-related. It's better to file your claim as soon as possible. Notify your employer immediately about any injury or illness. Don't let your employer tell you the injury or illness is not covered, that you can't file a claim or that a supervisor must file it for you. This is an all-too-common strategy to keep workers from filing compensation claims.

How to File

Workers can file a claim by filling out a C-3, or "Employee's Claim for Compensation" form. You can get a form from your local Workers' Compensation Board (WCB) office. There are also forms employers and physicians can fill out to file a claim on a worker's behalf. Don't rely on anyone to file for you ; get a C-3 form and send it to the Workers Compensation Board (WCB). Consider consulting a legal representative when filling out the C-3. When the WCB receives a C-3, they are required to open a case file for you. You have a right to a copy of the employer's form through an OSHA standard on access to records of injuries and illnesses.

What Are the Benefits?

In addition to medical treatment and hospital care, workers may be awarded cash payments for loss of earnings. Under the law, you must be out of work for more than seven days to qualify for the payments. All benefits are payable back to the date of your injury. Weekly compensation is two-thirds of your average weekly wage up to a maximum of $400 . If your injury or illness caused you to go back to work at a lower paying job, partial disability payments are made by the employer's workers' compensation insurance carrier. The disability may be classified as temporary or permanent. A permanent injury to toes, hands, legs, arms, and loss of vision or hearing entitles workers to a schedule loss award . These awards give a fixed number of weeks of compensation for each type of permanent injury. The amount depends on the part of the body affected and the extent of damage.

Many collective bargaining agreements provide for additional wage replacement or other benefits for work related injuries and illness. Check your contract for all the benefits allowed.

Recordkeeping

Keeping documents relevant to the workers compensation process helps minimize delays and resolve questions. Document your work history. List dates, times, places and what symptoms appeared. Also record relevant circumstances, witnesses, who you notified and when. Keep records related to your case such as doctor visits, car mileage, drugs purchased, and lost workdays.

To preserve future rights, keep the Notice of Decision (C-27 form) from any compensation hearings you may have. This insures that you can get medical coverage if you need additional treatment in coming years, after your case has been settled. Show the decision to your doctor so she/he can file a medical claim (C-27 form) and reopen your case.

Medical Care

When you are choosing a physician, you should consider her/his experience with work-related injuries and illnesses, willingness to perform the required paperwork, and reputation in compensation cases. The physician should be willing to testify at your hearing if necessary.

The doctor you pick must be authorized by the state Workers' Compensation Board. There is a unique network of occupational health clinics in New York that employ doctors certified in occupational medicine. Call your NYSUT regional office for the phone number of the one nearest you. Experienced in handling workers' comp cases, doctors from these clinics frequently testify at hearings on behalf of their patients.

Since 1993, employers have been allowed to participate in a managed care program, which permits the employer to select the doctor who will evaluate or treat your condition. The employer may also contract with a Preferred Provider Organization (PPO) to deliver all medical services related to workers' compensation claims. Where there is a union, this issue must be bargained. If managed care or a PPO for workers compensation cases is not in your contract, then you are free to choose your own doctor. Even without negotiating, your employer can suggest a PPO or a particular doctor. Feel free to say no and choose your own. If your employer wants to negotiate this, contact your NYSUT Labor Relations Specialist for help with this complex issue.

Watch Out!

In 1996, the state legislature passed a sweeping workers' compensation "reform" bill. This created significant changes for workers that benefit employers. Several of these may sound good but they can cost you valuable benefits. They are:

Waiver of Rights: Your employer or the insurance company can try to get you to agree to give up future benefits in exchange for getting compensation immediately. These agreements could be used to close cases more quickly and for much less money.

Conciliation Agreements: These are proposals offered by insurance companies. The company offers these to settle the case without going to a formal hearing at the WCB. Any worker off work for up to 52 weeks can be offered this agreement. If you don't want to participate, a formal hearing will be scheduled.

Temporary Payments: When there is a disagreement over your claim, your employer can make temporary payments of compensation for up to one year while your case is pending. Employers may make you give up future benefits as a condition of temporary payments.

Remember: Get legal counsel if you are approached with any of these options.

Legal Assistance

If you have questions about your case, or the workers' compensation process, you have the right to legal advice. Make sure you find a legal representative who has experience with the system. Ask your co-workers whom they recommend, or call the NYSUT regional office for a list of attorneys in your area with workers' compensation experience.

Under the compensation system, you do not pay out-of-pocket for legal services, even if you lose the case. The WCB sets fees, and the amount is deducted from your compensation award and paid directly to your legal representative. If someone wants money first, find another representative.

Advocate for Injured Workers

The state WCB provides the services of the Advocate for Injured Workers. This person has the responsibility of helping injured and sick workers navigate the workers' compensation system. You can contact the advocate at 1-800-580-6665. More information is on the WCB's web site at http://www.state.ny.us .