Basics of New York Workers Compensation Claims

The start of the New York Medical Treatment Guidelines on December 1, 2010 has garnered a lot of attention on New York workers' compensation.   In addition to the new medical treatment guidelines, there have been several recent changes in New York workers' compensation. Let's review the New York workers' compensation statutes and how the changes will impact the work comp claims. State laws change frequently, so check for current updates at the state board website or our Legal Library NEW YORK.

In early 2007, the New York government made some sweeping changes in the workers compensation laws. The change most noticed by employers, employees and the claim adjusters was the change in the amount of indemnity benefits paid for temporary total disability. The indemnity benefit in New York is calculated as two-thirds of the employee's average weekly wage. Prior to July 1, 2007, the indemnity benefit was capped at a maximum of $400.00 per week and a minimum of $40 per week. The indemnity benefits maximum and minimum had been unchanged since July 1, 1992.

For the year starting July 1, 2007, the maximum weekly benefit was increased to $500.00 per week. For the year starting July 1, 2008, the indemnity benefit was increased to $550.00 per week. For the year starting July 1, 2009, the indemnity benefit was increased to $600.00 per week. On July 1, 2010, the New York indemnity benefits eliminated the maximum dollar cap and replaced it with a cap of two-thirds of the New York State Average Weekly Wage (SAWW). Each year the new cap will adjusted and indexed automatically to two-thirds of the SAWW. Effective 7-1-2007 and continuing the minimum cap is $100.00 per week or the actual wage if less than $100.00 per week.

There is a 7 day waiting period for indemnity benefits after an injury. No indemnity benefits are paid for the first 7 days of disability unless the employee is off work beyond 14 days. The indemnity benefits are retroactive to the first day off the job if the employee is off work more than 14 days. 

Temporary total disability benefits in New York are paid for the duration of the disability. If the employee is classified as permanent partial disability, the maximum benefits are the same as for temporary total disability, but the maximum number of weeks is not for the duration of the disability. The number of weeks the employee can receive for permanent partial disability varies based on the percentage of disability, with a 12 step range that starts with 225 weeks for 15% disability and ends with 525 weeks for 99% disability. 

The surviving spouse, or the surviving spouse plus children receive two-thirds of the employee's wage capped the same as the disability benefits. If the spouse remarries, the spouse receives a lump sum equal to two years of benefits. Any children continue to draw the reapportioned death benefits uninterrupted. If the spouse does not remarry, the spouse can draw death benefits for life. Death benefits for children continue until age 18, unless the child is in an accredited school, then the death benefits continue until age 23. Dependent children who are blind or physically disabled can draw death benefits to any age.

Instead of a flat percentage of the employee's recovery used in most states, in New York the attorney fee will vary depending on the nature and extent of effort the attorney has invested in the injury claim. The New York Workers' Compensation Board reviews and approves attorney fees on a case-by-case basis. 

Indemnity benefits can be paid for occupational hearing losses if the employee meets certain time restraints and filing deadlines.

New Yorkworkers' compensation pays for all medical cost associated with the work-related injury or occupational disease. The full medical benefits have no monetary limits or time limits. Except in emergency situations, the employee must select the treating doctor from a list of doctors maintained by the New York Worker's Compensation Board.

With the 2007 changes in the work comp statutes, the insurance company or the self-insured employer can control diagnostic testing – x-rays, MRIs and other radiological examinations and test. The insurance company can require the employee to have the diagnostic testing done by a provider or a facility that is affiliated with the network the insurance carrier has contracted with.  

New York work comp statutes provide an alternative to the employee selecting the treating doctor. The New York State Health Department certifies Preferred Provider Organizations (PPOs).   The insurance companies and self-insured employers can contract with one of the approved certified PPOs to provide medical services, medical treatment and rehabilitation to injured employees. The PPO must provide two doctors in every medical specialty and two hospitals. If the injured employee is unhappy with the medical provider(s) in the PPO, the employee can still select their own doctor outside of the PPO after 30 days from the initial PPO treatment.   [Personal opinion – the plaintiff's bar association got this option put into the New York work comp statute so that they can send the employee to a 'plaintiff friendly doctor'.]

Insurers and self-insured employers can also contract with a pharmacy or a pharmacy network to provide all medications for the injured employee. The employee can still obtain medications outside of the network in the case of an emergency or when no pharmacy is available within a reasonable distance from the employee.

New York is one of the few states that allow benefits for disfigurement or scarring. It is limited to “serious facial, head, neck, or chest”.   Disfigurement of other body areas is not compensable. The maximum benefit for disfigurement is $20,000.

The employee can receive vocational rehabilitation benefits if the employee's is unable to return to work in the employee's previous capacity.
 

The New York work comp statutes apply to domestic servants who work for the same employer a minimum of 40 hours per week. Agricultural workers are eligible for work comp benefits if the farmer pays all farm workers combined a total of $1,200 or more during the calendar year. (WCxKit)

The recent changes in the New York work comp laws make for higher indemnity benefits while providing the employer the option of controlling some of the medical cost. By knowing and understanding the statutes, the employer can better manage their New York work comp exposures.