Back in good ole 2012 this article appeared in the New York Daily News titled “Ten things to know about workers’ compensation” (http://www.nydailynews.com/jobs/10-workers-compensation-article-1.1070428)
A Finance Careers Expert from Monster, lays out a top ten list of things every worker should know about worker’s compensation. Among these items are a number of pieces of very sound advice, the same we give to our clients: Report the injury to your employer ASAP, visit a medical provider ASAP (and make sure they note the fact that the injury happened at work), and “stay sober at work” (always good advice certainly).
There are several key inaccuracies about this article however which may be injurious to the average person’s understanding of the worker’s compensation system in New York.
First, while largely correct, under item number 6 it is worth clarifying that in New York you are still covered under worker’s compensation even if the accident is “your fault” when by fault we’re talking about you being careless or stupid while you’re doing your job. It is generally only when you intentionally hurt yourself that you are not covered. Even so-called horseplay is sometimes covered, especially when your employer knows about and sanctions (or does not crack down on) it. The best advice is almost always to report the injury as if you would be covered; if you are later denied, absent any outright lying on your part, generally there won’t have any negative repercussions.
Second, under the heading “9. Big payouts are rare,” this is somewhere between a little and very misleading. In New York (they reference Texas law which may well be different), while it is true that one’s weekly worker’s compensation payouts for lost wages are capped at a certain amount (which changes every year but is currently more than $700 to be sure) if you lose all or part of a body part or the use of a body part or are facially disfigured or scarred you may be entitled to substantial payouts, even if you continue working! For example, if you scar your face in a work-related accident, you may be entitled to a lump sum payout of $20,000. If you lose a toe, finger, arm, leg, or other extremity, or the use of an extremity, you are likewise entitled to potentially years worth of payments or a large lump sum which can be in some cases be a substantial sum. This is not to mention the fact that insurance carriers often try to settle your claims for a large lump sum payment.
Lastly, in number 8 the author makes a number of patently incorrect statements, at least as concerns New York law. While you can certainly file a worker’s compensation claim without an attorney, remember that if your claim is contested you will be fighting directly with lawyers from your employer’s insurance carrier who have every incentive (and skill) to short change you from getting the maximum recovery. Contrary to what the article says, there are a number of ways in which the carrier can minimize your recovery. For example, while one would think that determining what you earned previously would be relatively straight forward, in fact the worker’s compensation law allows for several methods of calculating your wages and provides for including things such as bonuses, fringe benefits, and room and board into the total amount – all in addition to the fact that your previous year’s wages do not have to be computed solely on the basis of the total amount earned but can be averaged and multiplied to in many cases greatly increase your computed average weekly wage. The article’s discussion about the loss of use of one’s thumb is only one example of a special kind of award called a “schedule loss of use” award, which is never quite as straight forward as the example in the article. The insurance carrier lawyers will push you to see one of their doctors who will often use various methods to minimize the extent of your injury in their reports and without a good defense you can be easily robbed of the full recovery you might be entitled to.
And the article’s statement about a lawyer’s fee being “at least” 20% is patently false: In fact, in New York the lawyer’s fee is typically 15% and rarely higher. Also, lawyers are paid directly by the Worker’s Compensation Board, not by you, and in fact lawyers are not allowed to take money from you directly, meaning that you cannot be overcharged. Even if you do not think you have a “complex” claim worker’s compensation attorneys are indispensable for ensuring that you receive everything you are entitled to; the difference, even taking out the attorney’s fee, will almost always still be to your benefit.
The moral of the story: Don’t trust everything you read! While this article lists some very helpful and accurate advice, and coverage of worker’s compensation is welcomed and appreciated, make sure you double check the facts especially when it concerns your own injury.