A person’s weekly compensation check is calculated by taking two-thirds of your average weekly wages, up to a maximum amount, depending on your date of injury. For example, if you made more than $600 per week before taxes while working, you will be eligible for 2/3 of that amount — up to the $400 per week maximum. If you made $300 gross per week, your maximum weekly benefits would be $200. There is also a maximum payment rate that varies, depending upon the date of injury. If your earnings are on the high end, your rate will be capped at the maximum rate for your date of injury, even if that is less than 2/3 of your gross weekly wages. The payments you actually get are often less than the maximum rate and will be determined by your level of disability.

The workers’ compensation system makes payments to you based upon your medical “degree of disability” if you are out of work. This is a doctor’s rating of your overall ability to work. If the doctor feels that you cannot do any type of job, you are 100% or “totally disabled.” We will ask that you be paid 100% of your weekly benefits. If the doctor feels you can do some type of work within limitations, you will be found to be less than 100% disabled. This is a partial disability. He or she may say you are, for example, 50% disabled due to your injuries. Therefore, you will only be entitled to one-half of your maximum weekly cash rate. If partially disabled, make sure your doctor gives specific restrictions (for example, how much you can lift in pounds), and a percentage of disability. Typically, the doctors use terms such as “mild” (25%), “moderate” (50%) or “marked” (75%) when describing your condition.

If you are receiving weekly compensation payments from the insurance company, your checks will generally be sent out every two weeks. However, some companies are better about this than others, and your checks could come to you much farther apart. The Workers’ Compensation Law requires that they pay you within 18 days after a check is due, so it could be as long as 32 days before you get anything. Unfortunately, there is nothing we can do about this until 32 days have elapsed. Only then can we call them. If your check is late, we can ask for a penalty.

If you are due extra money because of an award made during a hearing or conciliation meeting, the insurance company must have your check mailed to you within ten days of the “notice of decision.” If they’re late, they must pay you a 20% penalty for late payment. To see when your check is due, look at your notice of decision. On the bottom is “Date of Filing of this Decision.” The ten days run from this date. If the envelope time and date stamp is more than ten days after this (not counting Sundays or holidays), let us know at once and we will pursue the penalty for you. Keep the envelope and make a copy of the late check for us.

If you are found to have a partial disability or a permanent partial disability and are receiving workers’ compensation checks, you MUST look for work. This is an absolute requirement and we cannot stress the importance of this enough. Under the law, a partially disabled person can only continue to get their weekly checks if they are actively seeking employment. It is not necessary that you find a new job, but you must look. An adequate job search will prevent the insurance company from arguing that you have voluntarily withdrawn from the labor market and stopping your payments.

While there is no exact number of times per week or per month that will meet this requirement, we have found that a job search will generally be enough if you look for work at least two or three times a week. This means calling around through the want ads, stopping off and filling out applications, and generally showing that you have made an effort to find work. You should carefully document each and every place you talk to or visit with the date, name of the potential employer, and what they told you. Keep your list up to date and bring it with you whenever you have a hearing.

Many people ask us how they can look for a job if no one is going to hire them anyway. The answer is that the law requires a job search regardless of your education, skills, or disability. While this may not make a lot of practical sense, there is no way around it. Unless your doctor tells you there is no job you can do – in writing – you must look for work or risk your benefits being stopped.

Other options include VESID (Vocational & Educational Services for Individuals with Disabilities) program and going back to school for retraining. VESID is a state-sponsored organization that tries to help people with disabilities find work. Either of these options will help to show your continued attachment to the labor market. You will likely still need to inquire about jobs. If your doctor feels that you cannot return to your old job due to your injuries, he or she may recommend that you look into a new line of work. We suggest that you have the doctor write you out a prescription for VESID. They will meet with you and identify areas where you might be employable. They may recommend going back to school and can assist you with this process. They can also assist you financially. Their phone number is 585-238-2900. Call them and immediately get the process started, since it may take several months. If you go back to school, please be aware that the insurance company is not responsible for paying your tuition. We’ll try to keep your payments coming in while you retrain, however.

Remember, if you are not totally disabled for ALL types of work, you MUST look for work! You are not considered totally disabled simply because you cannot work your regular job. Also, you are not considered totally disabled in workers’ compensation just because you are considered disabled for Social Security Disability benefits.

If your injury is affecting your paycheck, there are things we can do to help. There are many people whose doctors do not feel that they can work full time or should find a new line of work. If your job cuts your paycheck because you can’t work the hours, transfers you to a lower-paying position, or if you are forced to get a new job that doesn’t pay as much, you are experiencing reduced earnings. It may be possible for us to get benefits to make up a portion of your lost wages.

If you have reduced earnings, please let us know. We will need your pay stubs showing the loss of income. We will also need a doctor’s report stating that your job change or inability to work your regular hours is caused by the injuries suffered in your case.

You will not get reduced earnings benefits if your loss of income is due to causes unrelated to your injury – for example, a plant slowdown, seasonal layoff, a transfer for other reasons, or you are fired for unrelated reasons.

From time to time during your case, you will receive a letter from the Workers’ Compensation Board informing you that a hearing has been scheduled. This “Notice of Workers’ Compensation Hearing” tells you the date and time of the hearing. It’s usually about a month from when you get the letter. If we represent you, we will also get a copy of the notice and we will be there on your behalf. Make sure our name is listed on the notice. If not, call us and let us know.

Please get to the hearing 30 minutes before the scheduled time so that we can meet with you beforehand unless we specifically tell you otherwise. Also, unless we tell you not to, you must always appear at these hearings — otherwise your case may be closed.

Hearings and trials are generally held before an administrative law judge. A court reporter will be present, as will an attorney hired by the insurance company. You probably will not have to say much, if anything. We will explain to you what’s going on beforehand, and let you know what to expect. Most hearings are very brief (less than ten minutes) unless it is scheduled for someone’s testimony. While being before a judge is intimidating, there is nothing to get nervous about. We’ll take care of everything. Do not be surprised if you are completely lost during the hearing. Compensation has its own language and abbreviations. We will sit down with you afterward, tell you what happened, and answer your questions. If you are required to testify during a trial, we ask you to contact us a week before the trial so we can go over things with you.

Your case may also be scheduled for a “conciliation” meeting. This is similar to a hearing, except that any findings made must be by agreement. This is less formal than a hearing. Unfortunately, the Workers’ Compensation Board will often schedule conciliation meetings when a hearing is necessary to deal with problems that we cannot agree on. Usually, there is little we can do about this, and the conciliation meeting may not be very helpful. We will try to avoid this when we can. If this does happen, the conciliator will usually schedule a hearing after the meeting.

Occasionally, the insurance company will ask you to attend a doctor’s appointment with a physician they have hired. These doctors review your medical file and perform an examination of you at their office. These exams are generally scheduled every few months if you are collecting weekly checks. Their doctor will give an opinion in a written report describing your injuries and your degree of disability. Frequently, their opinion differs from your own doctor and the company will ask for a hearing to try to reduce your benefits. When you get the report (in about ten days), immediately schedule an appointment with your own doctor and have him or her review and comment upon the IME’s findings. This will help us defend your case.

An IME may also be scheduled if your doctor gives a permanency opinion or there is a request for surgery or a request for a medical treatment. The important thing to know is that the insurance company has the right to have you seen, and failure to keep the appointment will delay your benefits. If you can’t make it, immediately call the company to reschedule the date.

Remember that while their doctor is hired by the company, he is not necessarily the enemy. A good report can help you immensely. So, don’t antagonize their doctor or be hostile. Answer his or her questions to the best of your ability. Do not exaggerate or minimize your symptoms. Keep in mind that the exam is limited and may only take a few minutes.
If we represent you, we will also get a copy of the report and we’ll review it.

Keep track of your mileage to and from doctor offices, physical therapists, and hospitals. The insurance company is required to reimburse you per mile traveled. You can also be reimbursed for out of pocket expenses, medications, and medical devices like braces or heating pads. Keep your receipts for these purchases.

You can send the insurance company a list of your expenses for repayment. We recommend you put the date of the trip, where you went, and how far it was. For other expenses, list the date and the purchase, and put in a copy of the bill. Make sure you put your name and case number on the list. There is a form available from the Workers’ Compensation Board for this purpose. It usually takes about 30 days before you will see a check for this. If it goes on longer than this, let us know.

Most people don’t know that you can collect unemployment and Workers’ Compensation benefits at the same time. If you are out of work and considered partially disabled, you may be eligible to receive both. You should contact the Department of Labor and file a claim for unemployment immediately.

You may also be eligible for Social Security Disability, private disability benefits (if you purchased a policy on your own or through your employer), or social services benefits if need be. You should consider each of these options to meet your financial needs. We can answer some questions about these benefits as well, although we do not represent people on matters involving benefits other than workers’ compensation and Social Security Disability.

Social Security Disability (SSD) is a federal program designed to assist those who are disabled and unable to return to work. It is different from Social Security Retirement in that you can receive cash benefits and partial coverage for your medical bills (Medicare) prior to age 65. If you are out of work for twelve continuous months, you should file for SSD as a supplement to your Workers’ Compensation case. They will take information about you over the phone and get your medical records. When determining your eligibility for SSD, they take into consideration your age, disability, level of education, and your prior work history. If you have filed for SSD and are denied, we recommend you contact us immediately. You only have 60 days to take action after you are denied, so call right away.

New York State has passed laws about committing insurance fraud in workers compensation cases. They are extremely serious about this, and the penalties can include making you repay your benefits, losing any future benefits, and even jail time. An issue of fraud is raised by the insurance company if they think you might be lying to them about the cause or extent of your injuries or if you are claiming to be out of work, yet making money on the side or under the table.

You may be committing fraud if your doctor tells you not to do any heavy work, yet you are putting a new roof on your house, or if you are not supposed to walk for long distances, yet come in third at a marathon. These are silly examples, but it gives you an idea of what constitutes fraud. We see many cases where the insurance company has hired a private investigator and videotaped a person doing something their doctor says they should not do. They immediately assume that you have exaggerated the seriousness of your injury and push for your benefits to stop. While most people don’t race in marathons, even minor things like taking out the garbage or mowing the lawn will get you into trouble if your doctor says you can’t do it or you make statements to your doctor that you can’t do it. Fraud can be based on any statements you make that are not accurate to anyone concerned with your claim, including the insurance company, your employer, your doctor, or the insurance company doctor.

You are definitely committing fraud if you say you are not working, yet collecting income under the table or through self-employment. If you are getting any type of weekly benefits from compensation, you must immediately tell the insurance company (and us) that you are working. “Working” is defined as getting something (cash, goods, or services) for doing something (fixing a car, babysitting, watching the store). If it sounds like a job, it probably is. You must tell us what you are doing and for how much. If immediately reported, it’s not fraud, and it may not even affect your benefits.

A fraud allegation, whether true or not, will seriously delay your case for many months, sometimes years – and cause you great financial hardship and stress. Simply put, don’t do it. Be upfront with your doctor about what you can and cannot do. Follow the restrictions given to you. Tell us if you start “working,” even if you are not sure that it’s really a job.

You have an absolute obligation to be honest with your attorney as well. An attorney cannot properly represent you unless he or she has all the information, and any dishonesty will endanger your relationship with an attorney.

Attorneys practicing in the area of workers’ compensation receive fees for successfully representing their clients. In workers’ compensation, it is not permitted to charge a fee to represent you upfront. Any fees collected for representing you will be paid out of the money you are getting, and this will be sent to the attorney directly by the insurance company. NEVER pay anyone, including your lawyer or your doctor, directly. Any and all fees requested must be approved by the judge, who is aware of what an attorney may charge clients. If your case results in no benefits being paid to you, the attorney does not get paid either. An attorney should always discuss any fees with you beforehand.

Typically, attorneys receive appearance fees for representing clients at each hearing where benefits are continuing. Also, the judge may award an attorney fee if there is back money owed to you. There is also a fee when you are found to have a permanent disability. While we do not charge an hourly rate, we do keep track of the amount of time spent on your case, the number of letters or phone calls we answer, and the difficulty of your case. We then factor that into how much we charge. Of course, these are the policies of our office and fees of other attorneys may differ slightly. However, the fees are generally quite similar from attorney to attorney.