The workers comp process is one that involves an insurance claim. A workers comp claim provides medical benefits and lost wages to an injured worker. In contrast, the purpose of a lawsuit is to make the plaintiff whole. A workers comp claim does not account for pain and suffering. In workers comp, Insurance carriers represent employers. Also, these carriers will hire their own attorneys.
Every employee is covered by either state or federal workers comp law. This is the case, regardless of immigration status. With few exceptions, every employer in New York must have workers comp insurance for all employees. An experienced workers comp attorney will maximize an injured worker’s lost wages and medical benefits. The injured worker is at a disadvantage if they do not retain an attorney to assist in the process.
The Workers’ Comp Process and Bar to Suing Employers
If a worker elects to receive benefits from the workers comp process, they generally give up the right to sue their employer. The workers comp law was created to quickly provide the injured worker with medical benefits and lost wages. In exchange, the worker gives up the right to directly sue their employer. The workers comp process was not meant to give injured workers a double recovery.
Importantly, an injured worker can still sue an entity that is not their employer. This is known as a “third-party lawsuit.” They can do so while having a workers comp claim against their employer. An example of this is a construction worker who falls from a scaffold. The worker can file an insurance claim against his or her employer. They can also file a civil lawsuit against the owner of the construction site in civil court.
The Importance of Medical Reports in the Workers Comp Process
Formally, the workers comp process begins when an employee suffers a work-related injury. An employee must be doing a work-related activity at the time of the accident. The employee will likely visit a medical provider. This may be a doctor, urgent care, or emergency room. Workers comp licensed doctors should examine the worker. There are special rules that govern medical reports submitted to the Board.
Medical reports must include three (3) pieces of information. First, they must note the accident history. Second, they must comment on the level of disability. Finally, they must include a statement that the injury is related to the accident. The earlier the worker obtains medical records that comply with workers’ comp rules, the sooner they can receive lost wages.
The worker should also mention prior accidents or treatment that involves claimed body parts. For example, if a construction worker injures his neck during a fall, he must disclose all prior treatment to the neck. This includes prior diagnostic tests, like MRI’s or x-rays. It also includes prior physical therapy, surgery, or injections. Failure to disclose prior treatment can fatally harm a worker’s claim. If later discovered, the Board may preclude the employee from receiving lost wages. Or, the claim may be denied. The carrier will raise fraud based on failure to disclose this prior treatment. Reporting prior injuries is a key part of the workers comp claim process.
In addition to producing medical reports, an injured worker should gather witness information. The worker will also need to produce HIPAA’s and payroll documentation. Witness names are critical.
Witnesses support the worker’s allegations. An experienced attorney will immediately assist the worker in obtaining that information for the workers comp process. The production of payroll documents, such as pay stubs and tax returns, is also critical to the workers comp process. Lost wage benefits depend on income at the time of the injury.
Average Weekly Wage and Lost Earnings
The injured worker’s income determines lost wages. The Board will review the worker’s payroll documents and/or tax returns. The Board may also review pay stubs. An injured employee will receive two-thirds (2/3) of pre-disability salary. That means that if an injured employee was making $1,000.00 per week at the time of their accident, they will be compensated $666.00 per week. However, this is subject to a limit, or cap. Each date of accident has a max weekly benefit. For example, if an accident occurs after June 30, 2020, the maximum weekly benefit is $934.11 per week.
Filing and litigating a workers comp claim may appear simple, however the process and issues can be complex. There are many time-sensitive obligations If you are involved in the workers comp process, reach out to the lawyers at The Platta Law Firm to discuss the issues on your case.