Filing a workers’ compensation claim can be easy, but there are many pitfalls if you make a mistake on the paperwork. This makes working with a Westchester workers’ compensation lawyer crucial. We can help you file your claim properly and accurately. A detail-oriented work accident injury attorney at Tomkiel and Tomkiel can give you the best chance at fair and full compensation.

Basics of Workers’ Compensation

Can I Sue My Employer or Co-Worker?

You cannot sue your employer or a co-worker. Workers’ compensation is the exclusive remedy for the employee against his or her employer for job injuries. This is the employer’s immunity. The Workers’ Compensation Law in New York began over 100 years ago. It is a social insurance system that is designed to provide for the payment of a portion of lost wages and medical treatment to workers who have been injured in the course of their employment provided that the injury arises from the employment as well. The Workers’ Compensation Law provides benefits for injured workers regardless of fault, while at the same time prohibiting negligence lawsuits for pain and suffering by the injured workers against their employers and their co-workers. It was intended to be a trade-off. The Law gives benefits on the one hand – partial wage replacement and medical treatment even if the employer was not negligent – but on the other hand, it takes away the right to sue the employer for pain and suffering even if the employer or a co-worker was negligent.

Can I File a Third-Party Lawsuit Against Someone Else?

The employer’s immunity does not protect others. If you were injured by someone’s fault other than the employer or a co-worker, such as a property owner a contractor or a negligent driver, you still have the right to sue that third party for negligence or a violation of law that causes your injury, in whole or in part. These claims are called Third-Party Lawsuits, and allow an injured worker to recover for pain, suffering and all the human elements of an injury, such as mental anguish and loss of enjoyment of life due to serious impairment. Of course, the worker must prove that the third party is legally at fault in causing the accident.

The Westchester workers’ compensation lawyers at Tomkiel & Tomkiel have made thousands of these third-party lawsuits successfully since the founding of the firm in 1979, and we have recovered many millions of dollars for injured workers on top of their workers’ compensation benefits.

It is important to consult an experienced third-party injury attorney if you have been injured at work to determine if some other party may be at fault in causing your work injury so that you may be able to recover full, fair and just compensation for the full extent of your injury over and above the workers compensation benefits.

Reporting an Injury and Filing a Claim

An injured worker who lives in Westchester or is hurt on the job in Westchester or elsewhere should immediately report the injury to his or her employer (in writing, signed, within 30 days), and most importantly seek medical treatment if necessary. The employer or its workers’ compensation insurance company is responsible to provide medical care and treatment at no cost to the injured worker. Any and all medical bills should be sent to the workers’ compensation insurance company, also known as the WC Carrier, or directly to the employer if this insurance information is not known.

The injured worker should not pay any bills, nor should any medical bills be submitted to other insurance. After the initial report and medical treatment, a Workers’ Compensation claim should be filed with the NYS Workers’ Compensation Board on the official form, called a C-3 Employee Claim. This can be done online or on paper. There is a two-year deadline to file the claim.

If you were injured on the job you should consult with an experienced attorney who is knowledgeable about how to file a workers’ compensation claim in Westchester. At Tomkiel & Tomkiel we offer free consultations to injured workers about their rights when injured on the job. We will also look to see if you have the right to sue a third party for negligence in causing your injury. Call us now to make sure you get what you are entitled to receive for your injury!

Available Workers’ Compensation Benefits in Westchester

You may be entitled to monetary compensation to replace a portion of your lost earnings if you were disabled for more than seven days. No wage benefits are paid for the first week unless you are disabled for more than 14 days. If so, you may be paid retroactively from day one of the disability. You may also be eligible for a cash award even if you have no time lost from work, if you have a permanent impairment after reaching maximum medical improvement, you may be eligible for certain awards. If your injury involves a body member such as a leg or an arm, you may be entitled to a Scheduled Loss of Use award. These kinds of awards may be paid even if you are not disabled from working.

If your spouse was killed on the job, you are eligible for survivor benefits for yourself and minor children, as well as any dependent blind or disabled adult children.

Do Workers’ Compensation Benefits Cover Medical Treatment?

You are also entitled to receive medical treatments for your injury without cost to you. The Workers’ Compensation Law requires the employer to provide medical coverage for all job-related injuries. Doctors or other providers such as hospitals or medical clinics are not allowed to bill you for any such treatments when you advise them that you were injured on the job. If you receive any medical bills you should tell the doctor that this is a workers’ compensation case, and bills should be sent to the employer or its workers’ compensation insurance carrier.

Additionally, you may be reimbursed for travel expenses, home health aide services as well as medicines and medical equipment.

Cash Benefits and Average Weekly Wage

Cash benefits are based on your average weekly wage (AWW) in the employment you engaged in when you were injured. The usual rule is that the average is based on the past 52 weeks of wages, but there are many exceptions if this would be unfair in a particular case. The weekly amount paid during a temporary total disability is two-thirds of the AWW, subject to a maximum amount based on the average wages of all New York wage earners. For injury dates between July 2018 and June 2019, the weekly maximum is $904.74. The maximum amounts are figured in February of each year, so they usually rise over time. But the rates are fixed as of the date of the accident, so even if the rate rises in the future, your rate is not increased.

If the degree of the disability is less than total, then the two-thirds amount is reduced proportionately. For example, if you are 50% disabled, then the benefit paid is 50% of two-thirds of the AWW. Workers’ compensation benefits for wage loss continue as long as your doctor certifies that you have a temporary disability.

Permanent Disability Benefits

Head, neck and back injuries are not eligible for Schedule Loss of use awards. Instead, these injuries are “classified” as a permanent partial disability (PPD). When a case is classified, the rate of the disability benefit is fixed based on the Loss of Wage Earning Capacity, and benefits are based on that set amount as a percentage of the average weekly wage. The length of time the benefits are paid is then “capped,” based on the degree of the disability. For example, an award based on 50% Loss of Wage Earning Capacity will be calculated at 50% of two-thirds of the AWW and payments will stop after 300 weeks.

Even though you may be classified as PPD, permanent disability benefits are not guaranteed. If you return to work and earn as much as your AWW or more, the benefits will stop. If you earn less, the benefit payment will be re-calculated as two-thirds of the differential between your AWW and your actual earnings. The payment for reduced earnings may be more or less than the rate based on the loss of wage-earning capacity.

Permanent total disability benefits are not capped, and continue for life or until a return to work, but they are very rare under the New York Workers’ Compensation Law. The injury must be so severe that you have no wage earning capacity at all. This is even more strict than the requirements for Social Security disability.

Schedule a Free Consultation with Tomkiel & Tomkiel

If you were injured on the job you should consult with an experienced Westchester workers’ compensation lawyer who is knowledgeable about the law. At Tomkiel & Tomkiel we offer free consultations to injured workers about their rights when injured on the job. We will also look to see if you have the right to sue a third party for negligence in causing your injury. Call us now to make sure you get what you are entitled to receive for your injury!

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