Workers' Compensation
A workers' compensation matter is an administrative claim before the New York Workers' Compensation Board, not a jury trial. The rules are different, the evidence is different, and the settlement architecture is different. The discipline of preparation is the same.
The Workers' Compensation Law.
The New York Workers' Compensation Law establishes a no-fault system: an employee who sustains an injury arising out of and in the course of employment is entitled to statutory benefits without regard to fault, and — in exchange — the employee's remedy against the employer is limited to those statutory benefits. The Workers' Compensation Board administers the system through a network of hearing officers and law judges; contested issues are adjudicated at hearings held under Workers' Compensation Law §20 and appellate review is available through the Board Panel and, ultimately, the Appellate Division, Third Department.
Statutory benefits fall into three categories: wage-replacement indemnity (paid as a percentage of the injured worker's average weekly wage, subject to statutory maxima that adjust each July 1), causally-related medical treatment (paid directly to the treating provider without co-payment to the worker), and — where the injury involves a permanent loss of use of an enumerated body part or a permanent classification — scheduled or non-scheduled loss-of-use awards.
The permanency award.
Workers' Compensation Law §15(3) establishes a schedule of maximum weeks of benefits for permanent loss of use of specific body parts — for example, 312 weeks for total loss of use of an arm, 288 weeks for a leg, 244 weeks for a hand, 205 weeks for a foot. Where the loss is partial, the award is calculated as the applicable percentage of the schedule. Scheduled loss of use awards are paid in a lump sum equal to the weekly indemnity rate multiplied by the number of scheduled weeks.
The percentage of loss is determined by an examining physician's report submitted at Maximum Medical Improvement (MMI) — typically twelve to eighteen months after the date of accident, once the treating course is complete. The claimant's percentage is frequently contested by the carrier's own IME, and the firm's practice includes both preparing the treating physician's SLU report and defending the claimant against the carrier's independent examiner.
Lump-sum resolution.
Workers' Compensation Law §32 permits the parties to settle a claim in a lump sum, subject to Board approval. A Section 32 settlement resolves the claim in its entirety — foreclosing future indemnity, future medical treatment, or both, depending on the settlement structure — in exchange for a present-value payment. The Board reviews the settlement for adequacy and, for medical-only settlements, for adequacy of the anticipated future medical needs; the settlement is not effective until it is approved.
The firm's Section 32 practice is a valuation practice. The settlement value of a claim is the discounted present value of the future indemnity and medical stream, adjusted for the risk that the carrier could later terminate benefits on a change-of-condition posture, offset against the claimant's need for present funds and future coverage. The firm evaluates every open claim for Section 32 potential at the time of MMI classification and, where the settlement value supports it, negotiates directly with the carrier or its administrator.
The independent medical examination.
The workers' compensation carrier is entitled under Workers' Compensation Law §137 to designate an independent medical examiner. IMEs are typically conducted by physicians who accept a significant share of their income from carrier referrals and whose reports frequently minimize residual impairment or attribute the claimant's condition to pre-existing degenerative change. The firm's IME defense practice includes: preparing the claimant for the examination with a documented statement of complaint; obtaining and reviewing the IME report immediately upon issuance; cross-referencing the IME's diagnostic conclusions against the treating record; and, where the IME materially contradicts the treating file, deposing the IME or noticing the IME for cross-examination at the Board hearing.
A well-defended IME record is the foundation of the eventual permanency award and of any Section 32 settlement discussion.
Recovery outside the compensation system.
Where the workplace injury is caused, in whole or in part, by a party other than the employer or a co-employee — a general contractor at a construction site (Labor Law §§ 200, 240, and 241), the driver of a delivery vehicle that strikes a warehouse worker, the manufacturer of a defective machine — the injured worker may pursue a civil third-party action alongside the compensation claim. The compensation carrier has a statutory lien under Workers' Compensation Law §29 against the third-party recovery, but the recovery itself is not limited by the compensation-benefit schedule.
The firm's practice is to identify third-party liability at intake, to develop the third-party evidence in parallel with the compensation claim, and — critically — to negotiate the compensation lien down at settlement using the apportionment methodology under §29 and the Burns credit calculation for future benefits. A properly-negotiated lien can add meaningful net recovery to the client without additional gross settlement dollars.
The claims the firm regularly represents.
- Construction fall from height
- Labor Law §240(1) "scaffold law" claim in parallel with the compensation claim. Strict-liability posture against owner and general contractor for elevation-related risk.
- Repetitive-motion / cumulative-trauma
- Carpal tunnel, rotator cuff, lumbar radiculopathy from repetitive work. Requires occupational-medicine documentation and, in contested cases, ergonomic-expert supplementation.
- Warehouse and industrial injury
- Struck-by, caught-between, and crush injuries. Frequent third-party posture against equipment manufacturer or maintenance contractor.
- Delivery-worker vehicle collision
- Injury sustained in the course of employment while operating an employer's or personal vehicle for work purposes. Paired MVA / comp claim; UM/SUM coverage often available.
- Nurse and healthcare-worker injury
- Patient-lifting injury, needlestick, workplace-violence exposure. Compensation-covered; third-party posture available where equipment or third-party staffing failure contributed.
- First-responder occupational disease
- Presumptive coverage under Workers' Compensation Law §3(1)(20) and related statutes for enumerated conditions in firefighters, police officers, and EMS personnel.