Nance L. Schick, Esq. Law Office of Nance L. Schick New York, NY

Surviving the Workers’ Comp Jungle: Everything You Need to Know About New

York’s Workers’ Comp Laws in Plain English

Nance L. Schick, Esq.

Law Office of Nance L. Schick

New York, NY

Workers Compensation is Workers Compensation is provided under a no-fault provided under a no-fault system, similar to your system, similar to your no-fault car insurance. no-fault car insurance.

It is also form-based, It is also form-based, and the instructions are and the instructions are

printed on the forms.printed on the forms.

Employers must show—by Employers must show—by substantial evidence—that the substantial evidence—that the injury was not caused by the injury was not caused by the claimant’s work. claimant’s work.

Otherwise, liability is presumed Otherwise, liability is presumed without an analysis of fault.without an analysis of fault.

A small percentage A small percentage

of claimants, attorneys of claimants, attorneys and physicians will and physicians will abuse the system abuse the system enough to increase the enough to increase the average claim cost average claim cost beyond reasonable beyond reasonable limits.limits.

You must seek out the small You must seek out the small percentage of fraudulent percentage of fraudulent

claims without losing your claims without losing your ability to relate ability to relate

to the truly injured workers.to the truly injured workers.

Quick, thorough Quick, thorough investigation isinvestigation is

key to your successkey to your successin every claim. in every claim.

It must also be It must also be followed by timely followed by timely filing of required filing of required

forms.forms.

Starting a ClaimStarting a Claim

Form C-2Form C-2

In an ideal claim, the C-2 form In an ideal claim, the C-2 form

Will provide the most accurate Will provide the most accurate history of the accident becausehistory of the accident because

it will be completed it will be completed

immediately immediately

after the accident occurs.after the accident occurs.

The C-2 form provides your The C-2 form provides your insurance carrier’s basis for insurance carrier’s basis for denying (C-7) or accepting (C-denying (C-7) or accepting (C-669) a claim.669) a claim.

Indicate the issues on the form Indicate the issues on the form by using the word “alleged” by using the word “alleged” anywhere you do not have direct anywhere you do not have direct knowledge of a fact (e.g., you knowledge of a fact (e.g., you witnessed the accident).witnessed the accident).

Form C-3Form C-3

A claimant usually A claimant usually completes the C-3 completes the C-3 form when he or she form when he or she calls an attorney.calls an attorney.

Sometimes, the Sometimes, the claimant will obtain claimant will obtain the form from the the form from the

Board.Board.

Scrutinize the Scrutinize the

C-3 form carefully, C-3 form carefully,

and note everyand note every

inconsistency.inconsistency.

C-4 FormC-4 Form

Occasionally, the Boardwill open a claim because

the claimant’s treatingphysician has filed a C-4 form or report.

The C-4 form The C-4 form

may serve as may serve as

prima facie medical prima facie medical

evidence of a evidence of a

work-related accident.work-related accident.

Key facts in the C-4 form or Key facts in the C-4 form or a medical report are:a medical report are:a)a)Work historyWork historyb)b)DiagnosesDiagnosesc)c)Opinion on causal Opinion on causal relationship between the relationship between the diagnosis and the work diagnosis and the work historyhistory

Reporting Reporting to the to the BoardBoard

Within 25 days after the EC-84 Within 25 days after the EC-84 Notice of Indexing is sent by Notice of Indexing is sent by the Board, your carrier the Board, your carrier mustmust file either Form C-7 or C-669.file either Form C-7 or C-669.

Fax a copy of the Notice Fax a copy of the Notice immediatelyimmediately to your carrier. to your carrier.

The clock begins ticking from The clock begins ticking from the day the form was sent the day the form was sent ((notnot when it was received). when it was received).

Also, fax your carrier Also, fax your carrier completed C-11 and completed C-11 and

C-240 forms.C-240 forms.

Form C-669Form C-669

If you have If you have notnot indicated to indicated to your carrier there is a your carrier there is a

question of whether the question of whether the claimant’s condition is claimant’s condition is

work-related, it will probably work-related, it will probably be accepted.be accepted.

Form C-11 will be used Form C-11 will be used to report any lost time to report any lost time from work, and it will from work, and it will

determine the number determine the number of days for which the of days for which the

claimant is paid.claimant is paid.

Form C-240 will report Form C-240 will report the claimant’s payroll for the claimant’s payroll for the 52 weeks before the the 52 weeks before the

accident, and it will accident, and it will determine the amount determine the amount the claimant is paid.the claimant is paid.

Form C-7Form C-7

If you have indicated to your carrier that the claimant’s injury or

condition was not work-related, it will be denied.

The Board is now required to The Board is now required to schedule a Pre-Hearing schedule a Pre-Hearing

Conference within 45 days of Conference within 45 days of receiving the C-7 Notice of receiving the C-7 Notice of

Controversy, so the litigation Controversy, so the litigation will begin moving quickly.will begin moving quickly.

The most common controversies are:The most common controversies are:a) Coveragea) Coverageb) Employer-Employee relationshipb) Employer-Employee relationshipc) Accident or occupational disease c) Accident or occupational disease d) Noticed) Noticee) Causal relationshipe) Causal relationship f) Prima facie medical evidence f) Prima facie medical evidence

MitigationMitigation

Medical expensesMedical expenses

You can help control medical You can help control medical costs by sharing information costs by sharing information you have about the claimant’s you have about the claimant’s

general health (e.g., attendance, general health (e.g., attendance, doctors’ notes, known doctors’ notes, known

disabilities, other work-related disabilities, other work-related injuries, lawsuits for unrelated injuries, lawsuits for unrelated

injuries, hobbies).injuries, hobbies).

You help control medical You help control medical costs when you have return costs when you have return to work (“RTW”) programs to work (“RTW”) programs

and notify your carrier and notify your carrier promptly when the claimant promptly when the claimant

RTW (see C-11).RTW (see C-11).

You help control medical costs You help control medical costs when you have employee when you have employee

assistance programs (“EAP”), assistance programs (“EAP”), including substance abuse including substance abuse

counseling, weight reduction, counseling, weight reduction, or fitness opportunities.or fitness opportunities.

Special Special FundsFunds

There are three main state funds There are three main state funds carriers use to reduce the costs of carriers use to reduce the costs of workers’ compensation claims:workers’ compensation claims:1. Special Disability or Second Injury 1. Special Disability or Second Injury

Fund (eliminated for claims filed Fund (eliminated for claims filed after 07/01/07) after 07/01/07)2. Special Fund for Concurrent 2. Special Fund for Concurrent Employment Employment3. Special Fund for Reopened Cases3. Special Fund for Reopened Cases

Claims filed before 03/13/07 Claims filed before 03/13/07 are not subject to a cap on the are not subject to a cap on the number of weeks payable for number of weeks payable for permanent partial disabilities permanent partial disabilities (“PPD”), so use of the Special (“PPD”), so use of the Special

Funds is vital.Funds is vital.

There are strict notice There are strict notice requirements for reimbursement requirements for reimbursement from the Special Disability Fund, from the Special Disability Fund, and carriers often learn too late and carriers often learn too late

about a prior physical impairment about a prior physical impairment (“PPI”) that would allow (“PPI”) that would allow

reimbursement from the state.reimbursement from the state.

Third-Party LiensThird-Party Liens

Claimants cannot sue their employers for Claimants cannot sue their employers for damages arising from work-related damages arising from work-related injuries unless:injuries unless:a) They sustain “grave injuries” ora) They sustain “grave injuries” orb) The employer has a “hold harmless,” b) The employer has a “hold harmless,” or indemnity, agreement with the owner of or indemnity, agreement with the owner of the property on or through which the the property on or through which the claimant was injuredclaimant was injured

If you are served with a civil If you are served with a civil Summons and Complaint Summons and Complaint

relating to the same accident, relating to the same accident, notify your workers’ notify your workers’

compensation carrier in addition compensation carrier in addition to your general counsel.to your general counsel.

If the claimant sues another party If the claimant sues another party and that party is ultimately found and that party is ultimately found liable, your insurance carrier will liable, your insurance carrier will

have a lien on any settlement have a lien on any settlement received in the civil action and will received in the civil action and will

be reimbursed for most of its be reimbursed for most of its workers’ compensation expenses.workers’ compensation expenses.

Your participation in the investigation Your participation in the investigation and administration of your workers’ and administration of your workers’ compensation claims is imperative.compensation claims is imperative.

Employers underestimate the importance Employers underestimate the importance of completing forms, investigating of completing forms, investigating accident sites, communicating with the accident sites, communicating with the carrier or defense counsel, and carrier or defense counsel, and maintaining contact with their injured maintaining contact with their injured workersworkers.

Get involved.Get involved.

Improve relationships.Improve relationships.

Lower costs.Lower costs.

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