Factors That Affect a Workers’ Comp Settlement in New York

An attorney can protect your rights to full compensation

Workers’ compensation benefits in New York cover many expenses for work-related injuries. Often, workers’ comp claims are resolved through a negotiated settlement with the insurance company. Since the cost of a work injury can be substantial, it’s important to ensure that your settlement includes your claim’s true value.

The amount of your settlement can vary depending on many factors. We’ve explained the most important factors in general terms below. However, only an attorney can evaluate your specific situation and advise you of your legal rights and options. If you’ve been hurt on the job in New York, it’s in your interest to talk to a lawyer as soon as possible.

Medical treatment and expenses

In New York, workers’ compensation pays for the full cost of medical treatment for your work-related injury or illness. That includes medical procedures, such as surgery, as well as doctor’s appointments, hospital bills, medication, medical expenses, physical therapy, occupational therapy, and any other medical care. Remember that in New York, you can generally choose any medical provider authorized by the Workers’ Compensation Board to perform those procedures.

As such, the cost of medical care is a significant factor in your workers’ compensation settlement. For instance, all other things being equal, an injury that requires surgery is likely to require more compensation than one that does not, both because of the cost of the surgery itself – which may be tens of thousands of dollars – and because of follow-up care such as physical therapy. The cost of medical care may also vary depending on age, pre-existing medical conditions, overall health, and so on.

Frustratingly, the insurance company may dispute whether a particular treatment or medication is, in fact, “reasonable and necessary.” They also may dispute whether a particular injury is truly work-related. They can even require you to attend an independent medical examination (IME) with a doctor of their choice to evaluate your injuries – the IME doctor is far from “independent,” as they are paid by the insurance company and have a financial incentive to interpret their results in a manner favorable to the insurance company. An experienced workers’ compensation attorney can protect your rights throughout this process and advocate for full compensation for your medical care.

Your average weekly wage (AWW)

If you are unable to work for a time due to your injuries, workers’ compensation pays a percentage of your lost income during that period. This is based on your average weekly wage (AWW); to calculate your AWW, the workers’ compensation system uses your gross earnings (not take-home pay) for the 52 weeks prior to the accident, including bonuses, overtime, and other compensation.

There are several nuances to how the AWW is calculated in various situations:

• If you have worked at your current job for less than a year, your employer is required to give as much information about your pay as possible to calculate your AWW properly. If you only worked at your job for a short time prior to the injury (remember, you can get workers’ comp even on your first day of work), your employer is required to provide salary information for a worker with the same or a similar job title who has worked the whole year to calculate your AWW.
• If you generally work four days per week, your AWW may be calculated based on this reduced schedule. Likewise, if you generally work six days per week, your AWW should be higher based on this increased schedule.
• If you were less than 25 years old on the day of the injury, you may be entitled to a higher AWW.
• If you work for multiple employers (concurrent or dual employment), then your salaries from both jobs should be added together to calculate your AWW.

There are other nuances to the AWW calculation for part-time workers, seasonal workers, and other employment situations. Your attorney can make sure your AWW is calculated to correctly account for the value of time lost due to your injury.

The extent of any permanent injuries

Some work injuries cause permanent disability. For injuries to the extremities (arms, legs, hands, feet, etc.) as well as vision and hearing loss and disfigurement of the face or neck, New York law provides for “schedule loss of use” (SLU) awards which are calculated based on the body part or parts injured, the percentage of impairment, and your AWW.

For example, according to the state schedule, a hand is worth 244 weeks of compensation. If your hand was completely amputated as a result of a work injury, you would receive two-thirds of your average weekly wage multiplied by 244 weeks – even if you don’t miss a single day of work. If you sustained a permanent injury such that you lose half of your use of a hand, then you would get half of 244, or 122 weeks of compensation.

You may also get a non-schedule award for permanent injuries not covered by the schedule, such as chronic pain and back injuries.

In addition to disputing how your AWW is calculated, an insurance company may also dispute your percentage of disability or argue that some portion of your disability is unrelated to the work injury. An attorney who knows New York law can advocate for your rights and pursue full compensation for your SLU award.

How can a New York workers’ compensation lawyer help?

If you get hurt on the job in New York, don’t simply assume that your employer’s workers’ compensation insurance provider has your best interests at heart. Insurance companies often do everything they can to pay injured workers as little as possible.

Again, only an experienced New York workers’ compensation attorney can analyze your situation and explain the factors that affect your potential settlement or award. They can review your case, answer your questions, explain your options, and negotiate with the insurance company on your behalf. Talk to an experienced New York work injury attorney today.

Pasternack Tilker Ziegler Walsh Stanton & Romano L.L.P.
551 5th Ave #520, New York, NY 10176
(212) 341-7900