This articles provides a basic overview of the wage replacement benefit – temporary disability – in New York workers’ compensation claims. A workers’ compensation claimant is entitled to medical care and wage replacement. If the worker is killed by the accident, his dependents may be eligible for death benefits.
As set forth more completely in my book, when an employee sustains are injury medical benefits must be provided immediately. WCL § 13. There is no waiting period before medical benefits must be provided. Wage replacement (as discussed below) has a waiting period before benefits must be provided. WCL § 12.
Is a minor covered by New York’s Workers’ Compensation law? How about undocumented workers? What are the rules for coverage for independent contractors? Attorney Greg Lois presents a webinar on the defense of “Lack of Employment” in New York.
The New York Workers’ Compensation Law was changed on April 10, 2017. Lois LLC held a webinar for clients and guests on how the statutory changes will affect employers, carriers, and self insureds in New York.
Employees are not deemed to be in the course of their employment when they are traveling to- and from-work. This rule of thumb is referred to as the “going-and-coming rule” or the “portal-to-portal” rule. Basically, there is no door-to-door coverage: the risk of travel to and from work is not distinctly related to any specific employment, and so is generally considered not arising out of and in the course of any particular employment.
Exceptions to the Going-and-Coming Rule
Of course, there are exceptions. For example:
Outside workers – like traveling salesmen – who do not work at a fixed location and are required to travel between work locations. (See Bennett v. Marine Works, 273 N.Y. 429 ).
Paid travel expenses – where an employee is paid to use their own car for work-related travel, an injury occurring during that travel may be found to be compensable.
Some home office situations – the WCB recognizes that it is not unusual for management and professional workers to have home office with links to the employer’s office, making injuries in those locations compensable.
Entering or leaving the employer’s premises – in particular, injuries sustained while the employee is entering the worksite have been held compensable where the entrance to the worksite posed a special hazard. (See Bigley v. J & R Music Elec., 702 N.Y.S.2d 474 [3d Dep’t 2000].)
Last night New York’s State Senate passed the Budget and associated bills. Senate Bill S2009C contains many changes to the New York Workers’ Compensation Law.
Good for employers and carriers:
Temporary disability benefits are limited to 2.5 years, after which payments of temp are credited to permanency. Source: Part NNN, Subpart A. (Of course, this is subject to exceptions, which we will discuss in the training).
Simplifying the drug formulary. The bill requires the creation of a simple formulary, listing the medications which can be dispensed and are pre approved. The MTGs already list drugs – this may simply the review of medications prescribed. Source; Part NNN, Subpart C.
Changes to the Disability Duration Guidelines & Scheduled Loss of Use findings. The Guidelines are used to determine the nature and extent of permanent residual disability in New York. The procedures for determining Schedule Loss of Use injuries will be reevaluated.
Bad for Employers:
Permanent partially disabled claimants will no longer have to establish that they have not “voluntarily removed” themselves from the workforce to remain eligible for ongoing partial disability benefits. Source: Part NNN, Subpart A.
Lowering the “safety net” from 80% partial disability to 75% disabled in order to qualify for extended permanent disability benefits when the initial allocation expires. Source: Part NNN, Subpart A, S2, 3.