Workers’ compensation
Injured at work in New York
Claims, hearings and appeals; schedule loss of use and permanency; Section 32 settlements; and the third-party case that workers’ compensation does not replace.
What you need to know
- Fault does not matter. Your own carelessness is not a defense to your claim.
- Written notice to the employer, and your own claim form filed with the Board, are two different things.
- A schedule loss of use is owed even if you never lost a day of pay. A non-schedule award is not.
- The carrier’s independent medical examination is evidence, not treatment — and you may bring someone and record it.
- Compensation bars suing your employer. It does not bar suing an owner, contractor, manufacturer or driver.
- In New York, a workers’ compensation award offsets Social Security disability.
The firm represents injured workers in New York workers’ compensation matters, and coordinates the compensation claim with everything it touches — a third-party case against an owner or contractor, a Social Security disability claim and its offset, a private disability policy, and the household’s longer-term planning where an injury turns out to be permanent.
Compensation is a system with its own courts, its own forms, its own medical rules and its own appellate department. It is also a system where several of the most damaging mistakes happen in the first two weeks, before anyone has thought about hiring a lawyer. Most of what follows is aimed at that period.
How the system works, and what it trades away
New York workers’ compensation is a bargain struck a century ago. The employer pays for disability and death arising out of and in the course of employment without regard to fault. In exchange, compensation is the exclusive remedy against that employer — the injured worker gives up the right to sue them in tort, and with it any claim for pain and suffering.
Coverage is close to universal in private multi-employee workplaces, through a statutory list of covered employments that ends in a catch-all for any trade, business or occupation carried on for pecuniary gain with one or more employees. There are named exclusions — certain farm labor, some domestic work in private homes, some religious-institution teaching roles, unpaid volunteers, amateur athletes for nonprofits.
Where the exclusive remedy ends
- An employer who never secured coverage. The shield belongs to employers who paid for it.
- A third party. The bar protects your employer, not the world. See the third-party case below.
- A grave injury. A third party you sue generally cannot bring your employer in for contribution or indemnity — unless you suffered one of an exhaustive, narrowly construed list of catastrophic injuries.
Construction work on Long Island is the important case. New York’s Labor Law imposes duties on owners and contractors — not on your own employer, unless it happens to be one of them. The scaffold provision is read to impose absolute liability for elevation-related and gravity risks, where the worker’s own carelessness is not a defense. A second provision requires reasonable and adequate protection in construction, excavation and demolition areas, and is violated by breach of a specific Industrial Code rule. A third codifies the ordinary duty to provide a safe place to work. These sit on top of the compensation claim, not instead of it. The clean way to think about it: two different cases, against two different parties, and you can have both.
Starting a claim
- Written notice to the employer. Your name and address, and the time, place, nature and cause of the injury, in ordinary language. A period for giving it is set by statute and published by the Workers’ Compensation Board.
- Your claim form, filed with the Board. This is what actually starts your case — not anything the employer files. A separate filing period applies, with its own rule for occupational disease, which runs from disablement and from when you knew or should have known the disease came from the work.
- The employer’s report. The employer must keep an injury record and report any accident causing lost time beyond the day of the accident, or medical treatment beyond ordinary first aid.
- The carrier must pay or dispute. The insurer has to either begin paying or file a notice of controversy. It may not simply go quiet. It must also give you a written statement of your rights within a statutory period.
Two defenses the carrier can lose by silence
Both the late-notice objection and the late-filing objection are waived if the carrier does not raise them at the first hearing at which the parties are present and the claimant testifies. Injured workers routinely concede these points when nobody has actually asserted them.
What the system pays
Medical treatment
Causally related medical care is paid by the carrier at the Board’s fee schedule. You pay nothing, and you do not use your health insurance for the work injury. You choose your provider, from among those authorized by the Board, and the law prohibits your employer from steering you to a particular one. Care above a statutory threshold requires prior authorization — but authorization unreasonably withheld, or withheld beyond a set period, is deemed granted, and a denial has to rest on a conflicting opinion from a Board-authorized physician.
Lost wage benefits
Every cash benefit is built the same way: a statutory fraction of your average weekly wage, multiplied by your percentage of disability, subject to a maximum and a minimum.
- Temporary total disability — while you cannot work at all during healing.
- Temporary partial disability — on the wage differential, while you can do some work or have returned at reduced earnings.
- Permanent total disability — for life. Loss of both hands, both arms, both feet, both legs or both eyes creates a presumption of it.
The maximum weekly benefit is two-thirds of the New York State Average Weekly Wage for the prior calendar year as determined by the Department of Labor; the minimum is a statutory fraction of the same figure, or your actual wages if lower. Your rate is fixed by the date of accident and does not rise later. The Board publishes the current maximum and minimum each year, which is where those numbers belong rather than on this page — not least because the minimum used to be a flat dollar figure and is not one any more.
Permanency: schedule and non-schedule
When treatment has taken you as far as it will, the case moves to permanency, and which of two tracks it lands on determines what it is worth.
| Schedule loss of use | Non-schedule permanent partial | |
|---|---|---|
| Applies to | Arm, leg, hand, foot, thumb, fingers, toes, eye, hearing | Spine, head and brain, systemic and internal conditions, psychiatric conditions, most occupational disease |
| What it pays for | The permanent loss itself — a statutory valuation of the member | Wages you actually lose, measured against your wage-earning capacity |
| If you return to full wages | Still owed in full | Typically nothing in cash |
| Shape of the award | Finite. A fixed sum, with prior lost-time payments on that member credited against it | Capped in duration, the number of weeks tied to loss of wage-earning capacity |
The one-sentence version: a schedule loss of use pays you for permanent damage to a limb or sense whether or not you lost wages; a non-schedule award pays you only for wages you actually lose, for a limited number of weeks.
How the rating is made
A schedule loss percentage must be rated under the Board’s impairment guidelines, which were replaced in 2018. Any rating or discussion built on the prior edition is out of date.
Loss of wage-earning capacity
For a non-schedule case, the finding made at classification is not purely medical. It blends medical impairment with functional ability and vocational factors — age, education, skills, language. That is why vague medical notes hurt: the finding is assembled out of specific functional restrictions, and “out of work” is not a restriction.
Two things the 2017 reform changed
- Labor market attachment ends at classification. A temporarily partially disabled claimant must document attachment to the labor market — a job search, a One-Stop Career Center, vocational rehabilitation, or full-time accredited schooling within restrictions. After classification with a permanent partial disability, that requirement no longer applies. Material telling classified claimants to keep documenting job searches is out of date.
- Medical care continues after the capped weeks run out. The statute provides that medical services continue notwithstanding completion of the period, with the burden on the carrier to show otherwise, and a hardship redetermination is available above a statutory threshold that the reform lowered.
Your doctor, the guidelines, and the IME
The treating provider
Treatment must come from a provider authorized by the Chair of the Board. You select the provider and may transfer under the Board’s rules, and the employer must post a conspicuous notice of that right. Going to the family doctor and billing health insurance is one of the most common and most damaging early mistakes: it creates gaps in the record on Board forms, and payment disputes that take months to unwind.
The Medical Treatment Guidelines
The Board’s guidelines are the mandatory standard of care, not advice. Treatment must be consistent with the guidelines in place on the date the services are rendered. They now cover far more than the original handful of body parts — the back, neck, shoulder and knee, but also carpal tunnel, hip and groin, foot and ankle, elbow, hand and wrist, non-acute pain, traumatic brain injury, complex regional pain syndrome, occupational asthma and lung disease, eye disorders, and post-traumatic stress, acute stress and depression. Treatment within the guidelines above a dollar threshold is pre-authorized, with no approval request needed.
Variances
When your doctor wants care that varies from the guidelines, the treating provider — not you — must file a prior approval request before the treatment is given, and carries the burden of showing it is appropriate and medically necessary. The carrier must respond within a fixed period and say clearly what it is granting or denying. A failure to respond in time can mean the variance is deemed approved. A retroactive request fails, and the delay lands on the patient. The process is now electronic; references to the old paper forms are out of date.
The independent medical examination
Described in the questions below. The essential points: it is adversarial evidence, the examiner must be authorized by the Board and cannot be someone who treated you for the condition, the report goes to you and your doctor at the same time it goes to the carrier, and the form served on you in advance sets out rights — a companion, a recording, travel reimbursement — that most claimants never exercise.
Hearings and appeals
The Workers’ Compensation Board administers the system and decides disputes. Hearings are now conducted virtually by default across the state on the Board’s platform; an unrepresented claimant without the technology may be permitted to appear by telephone. Material describing travel to a district office as the norm is out of date.
- A Workers’ Compensation Law Judge takes testimony and decides the contested issues — causal relationship, notice, timeliness, average weekly wage, degree of disability, permanency, apportionment — and issues a decision.
- A Board Panel of three Board members reviews on application, filed on the prescribed form within a period set by regulation and served on all necessary parties. It may affirm, modify, rescind, or send the case back for further development. The other side may file a rebuttal.
- Full Board review is mandatory where a panel member dissents, and otherwise discretionary on application or on the Board’s own motion.
- The Appellate Division, Third Department.
A quirk worth knowing
Workers’ compensation appeals go to the Third Department in Albany by statute — not to the department that covers where you live or where you were hurt. A Suffolk or Nassau claimant, who for every other civil purpose is in the Second Department, appeals a comp case to the Third. The practical consequence is that the controlling appellate law on New York compensation is Third Department law, and Second Department decisions are not on point. Those appeals are heard in a summary manner and take precedence over other civil cases.
A judge’s decision becomes final if no timely application for Board review is filed. That is the most common way a good case ends.
Section 32 settlements
A Section 32 agreement settles and determines the compensation and other benefits due, converting an open claim into a defined sum.
The agreement must allocate among indemnity, medical benefits including prescriptions, and attorney’s fees, and must identify which cases it closes — only the cases expressly named are closed. Parties may settle indemnity alone, medical alone, or both. Where medical is settled, the agreement must contain an allocation for future treatment, and the Board scrutinizes agreements allocating less than a stated minimum share to it unless the condition is stable or further treatment is unlikely.
The Board’s approval is what makes the agreement binding, and it will disapprove one it finds unfair, unconscionable or improper as a matter of law, or procured by intentional misrepresentation of a material fact. A hearing is scheduled unless all parties ask for desk review or the agreement settles indemnity only. A short period runs during which a party may withdraw. An approval cannot be reviewed; a disapproval can.
What it gives up. Once approved, the agreement is final and conclusive. The claim does not reopen if the condition worsens. A settlement that closes medical ends the carrier’s obligation to pay for treatment of that injury for life. And the agreement interacts with two other systems — the Social Security offset described below, and Medicare’s interest where the claimant is or expects to become a beneficiary — in ways that depend on how the agreement is written, not merely on its total.
Third-party cases, liens and the Social Security offset
The carrier’s lien
Where you recover from a third party, the carrier has a lien on that recovery for the total compensation awarded or provided, and for the medical treatment it has paid or will pay.
Consent to settle — the trap
Compromising the third-party action requires the carrier’s written consent, or a court order in its place. Settling without it can forfeit the compensation claim entirely. This is the single highest-cost mistake available in this area, and it is made by people who do not know the comp case and the injury case have to be coordinated.
Deficiency compensation
If the third-party recovery is less than the compensation otherwise payable, the carrier contributes the deficiency. The comp case is not extinguished — it resumes once the net recovery is consumed at the compensation rate.
Who pays for the recovery
The carrier benefits twice from your third-party case: it recoups what it has paid, and it is relieved of what it would have had to pay going forward. New York’s courts have held that litigation costs are equitably apportioned to reflect both benefits — but with an important limit. Where the comp case is a non-schedule permanent partial disability, the value of future benefits is too speculative to apportion in a lump at the time of recovery, because the rate and duration can change; the carrier’s share is instead taken as benefits accrue. Where the future benefit is readily ascertainable — death, permanent total disability, a schedule loss of use — it can be apportioned immediately. Which category your comp case lands in therefore changes what your own legal fees cost you, which is a concrete reason to have one lawyer coordinating both.
The Social Security offset
This is federal, not state, and older material gets it badly wrong. Where a person receives both Social Security disability and workers’ compensation, the Social Security benefit is reduced so the combined total does not exceed a statutory percentage of the worker’s average current earnings. Some states are exempt from this because their own law reduces the state benefit instead. New York is not one of them. Temporary total, temporary partial, schedule loss of use, permanent total and Section 32 lump sums are all offsettable, with one narrow statutory exception.
For a lump sum, the Social Security Administration prorates the reduction to approximate what the monthly reduction would have been — which is exactly why the allocation language in a Section 32 agreement, and the documentation of excludable expenses, can change the real value of a settlement substantially. Anything you read saying workers’ compensation does not affect Social Security is simply wrong in New York.
Documents to bring
The first meeting goes faster and produces better advice if you bring whatever you have of the following. Missing items are normal — bring what exists.
- The date, time and place of the accident, and the names of anyone who saw it
- Whatever written notice you gave the employer, and anything the employer gave you
- Every Board form, carrier letter and decision you have received
- Names and addresses of every provider who has treated you for this injury
- Your pay records for the year before the injury, including overtime and any second job
- Any independent medical examination notice or report you have been sent
- Photographs of the scene, the equipment, and the injury, if any exist
- For a construction injury: the site, the general contractor, the property owner and every subcontractor present
- Any prior injury or claim involving the same body part
- Any Social Security disability or private disability claim, application or award
The mistakes that cost the most
- Telling a supervisor and nothing more, instead of giving written notice.
- Assuming the employer’s accident report was your claim. It was not.
- Treating with your own doctor on your health insurance instead of a Board-authorized provider.
- Letting your doctor provide care outside the guidelines without filing the variance first.
- Falling out of the labor market while temporarily partially disabled.
- Never realizing there was a third-party case, or settling one without the carrier’s written consent.
- Signing a settlement that closes medical without understanding that it closes for life.
- Letting the time to seek Board review run out.
Frequently asked questions
It was my own fault. Can I still file?
Yes. Workers’ compensation is a no-fault system — that is the entire bargain it is built on. You do not prove your employer was negligent, and your employer cannot defend the claim by saying you were careless, that you assumed the risk, or that a coworker caused it.
The statutory exceptions are narrow: an injury solely caused by the worker’s intoxication while on duty, an injury caused by a willful intention to hurt oneself or someone else, and certain voluntary off-duty athletic activity. Ordinary human error is not on that list. The belief that it was “my own fault so I can’t file” keeps more people out of the system than any legal rule does.
I told my supervisor. Isn’t that enough?
Usually not. The statute requires written notice to the employer giving your name and address and stating, in ordinary language, the time, place, nature and cause of the injury. Failure to give it is a bar to the claim unless the Board excuses it — because notice could not reasonably have been given, because the employer already had actual knowledge, or because the employer was not prejudiced.
Those excuses are real, and verbal notice often is excused. But that is a fight to have, not a plan to rely on. Separately, the employer’s own accident report is not your claim. Only the employee’s claim form, filed with the Board, starts your case, and the statutory filing period runs whether or not the employer reported anything.
What is the difference between a schedule loss of use and a non-schedule award?
This is the part of the system people most often misunderstand, and it decides how much a permanent injury is worth.
A schedule loss of use applies to the listed extremity and sensory members — arm, leg, hand, foot, thumb, fingers, toes, eye, hearing. The statute assigns each member a fixed number of weeks of compensation for total loss. A physician rates the percentage of permanent loss of use, and the award is that percentage of those weeks. Critically, it is not payment for lost wages: it is a statutory valuation of the body part, and it is owed whether or not you lost a day of pay or went back to full duty at full wages.
A non-schedule award covers everything else — the spine, the head and brain, systemic and internal conditions, psychiatric conditions. It pays a fraction of the difference between your average weekly wage and your wage-earning capacity, which means it depends on what you can still earn. Someone classified with a non-schedule permanent partial disability who returns to full wages typically receives nothing in cash. It is also capped in duration, with the number of weeks tied to how much wage-earning capacity was lost.
Do I have to see the insurance company’s doctor?
An independent medical examination is neither independent of the insurer nor treatment. It is an examination arranged and paid for by the carrier or employer to obtain an opinion on causal relationship, degree of disability, need for treatment or permanency. The examiner is not your doctor and provides no care.
You do have rights, set out on the form served on you in advance, and they are badly underused: the right to be accompanied by a person or people of your choosing, the right to record the examination, notice of whether the examiner intends to record it, travel reimbursement where the carrier requested the exam, and a complaint channel at the Board. The report must be served on you, your doctor and your representative at the same time it goes to the carrier and the Board — there is no secret report. Treating the exam as unimportant, or skipping it, both cause avoidable damage.
Can I sue anyone, or is workers’ compensation all I get?
Compensation is the exclusive remedy against your employer. It is not a bar to a claim against anyone else. The statute expressly preserves your right to pursue a third party — the property owner, the general contractor, another subcontractor on the site, an equipment manufacturer, a negligent driver — and you do not have to choose between them.
This matters enormously on Long Island construction sites, where New York’s Labor Law imposes duties on owners and contractors that go well beyond ordinary negligence, including absolute liability for certain elevation-related risks. Workers’ compensation pays nothing for pain and suffering; a third-party case does. Two warnings come with it. The carrier holds a lien on your recovery, and settling the third-party case without the carrier’s written consent, or a court order in its place, can forfeit your compensation claim.
Should I take the settlement the carrier is offering?
It depends on what it closes, and that is a question to answer before the number. A Section 32 agreement converts an open claim into a defined sum. It must allocate among indemnity, medical benefits and fees, and it closes only the cases it expressly identifies. Once the Board approves it, it is final and conclusive — the claim does not reopen if your condition worsens.
Three consequences deserve attention before signing. If the agreement closes medical, the carrier stops paying for treatment of that injury for life. If you receive or expect Social Security disability, a lump sum is generally offset against it, and the allocation language in the agreement materially affects how much. And if you are a Medicare beneficiary or expect to become one, Medicare’s interests have to be accounted for. The Board reviews agreements and will not approve one it finds unfair, unconscionable or improper as a matter of law, but that review is a floor, not advice to you.