Stanley A. Tomkiel, III, III, lawyers in Yonkers, NY, New York

When an employee is injured on the job, or suffers an occupational disease, he or she may be eligible for compensation benefits. These benefits include payment of all medical expenses and reimbursement for a portion of wages lost due to disability caused by the injury. Additionally, if the worker suffers a permanent impairment of a body member, such as a leg or hand, a payment may be made for this loss even though the worker has not lost time or has returned to work. Awards are also made for loss of vision and loss of hearing. No payment is made for pain and suffering, mental anguish or other such elements of an injury. However, if a third party (other than the employer or a co-worker) is responsible for causing the injury, the injured worker may sue such other party for the full measure of damages, including pain and suffering. This is discussed more fully below.

The injured employee must report the accident to the employer within 30 days, and a claim for compensation must be filed with the NYS Workers' Compensation Board within two years. Medical doctors and other medical providers cannot charge the injured worker, but must submit the bills and reports to the employer or the employer's workers compensation insurance carrier. Employers are required to post the name and address of the workers compensation carrier in the workplace. After an accident, the employer must report the accident to the compensation insurance carrier. The attending physician must submit the medical bills and reports to the carrier. When the carrier gets the paperwork from the employer and doctor to show that the employee is out of work and disabled due to the job accident, the carrier must make payment to the disabled employee within 10 days.

There is no payment for the first five days of lost time, unless the lost time exceeds ten days, in which case payment is due from the beginning. Payment is based on the worker's average weekly wage in the 52 week period immediately preceding the accident. The rate of compensation depends on the degree of disability. For total disability, the rate is two-thirds of the average weekly wage. The rate for partial disability is reduced proportionately. For example, a fifty percent disability would be one-half of the two-thirds rate. The maximum disability payment is $400 per week, whether total or partial. Workers with high average wages may be paid the maximum $400 rate even though they are partially disabled. If a worker is permanently disabled, payments may be made for life.

Third Party Lawsuits

Workers' Compensation benefits are the employee's exclusive remedy against the employer or a co-worker for an on-the-job injury, but if the accident was caused by the fault of a third party, the injured worker may sue the responsible party for the full measure of damages including pain, suffering, full lost wages, reduction of earning capacity, medical and other related bills and expenses, incurred in the past and such damages likely to be incurred in the future.

Common situations where these "third party lawsuits" arise is when the injury occurs at a construction site (see Construction Site Accidents and Scaffold and Ladder Accidents); when the employee is in a car accident while in the course of employment (compensation benefits are paid first, and sometimes No-Fault benefits can be paid as well, see Auto Accidents - No-Fault Law); when the employee trips on a defective condition which was caused by an outside company, or the employer's landlord or maintenance company; when a defective product causes the injury; when an injury is worsened by medical malpractice; and many other times. If you were seriously injured on the job, it would be wise to discuss your case with an attorney to see if you can sue for the full measure of your damages on top of your worker's compensation benefits. If you can make such a recovery, you will have to re-pay the compensation insurance company for the compensation benefits you received, but the law requires this lien to be reduced by the proportionate amount of attorney fees and other expenses incurred in getting the recovery. Injured employees can recover substantial sums in these third party lawsuits, even after the expenses and lien.

Attorney Stanley A. Tomkiel III has been handling these cases for over 20 years and can offer you the benefit of his long experience. You may consult with him about your case, without obligation. Call or e-mail him today for your free consultation. He can also handle your workers' compensation claim in his office for your added convenience in dealing with only one law firm for both the compensation claim and the lawsuit.

Social Security DisabilityThere are different kinds of Social Security benefits that are paid on account of disability. The most common and well known is the Disability Insurance Benefit, also referred to as DIB, or SSD. This is the benefit paid to disabled workers. The amount of the benefit is the same as if you were of full retirement age. This is often confused with SSI, or Supplemental Security Income, a welfare benefit administered by the federal Social Security Administration. The SSI disability payments are paid to disabled individuals whose income and assets are very small. There are no income or asset limits for the SSD benefits, but the worker must have worked in covered employment for a sufficient time.

The law defines disability as the inability to do any kind of substantial gainful activity for a continuous period of at least one year, or having a condition that is expected to result in death. The cause of disability can be either mental or physical, but it must be medically determinable. This means there must be a medical basis for the condition. Statutory blindness also is considered a disability. Statutory blindness is defined as central visual acuity of 20/200 or less in the better eye with the use of glasses, or the field of vision limited so that the widest diameter subtends an angle no greater than 20 degrees. The one year duration requirement also applies to blindness cases.

The government will consider your age, education and work experience along with your medical condition. This means that even if your medical condition does not prevent all type of work, you may still be eligible if your particular situation is such that you cannot be expected to perform the only work you are physically able to do. The simplest example of this is the laborer in his late fifties who has a back condition which prevents him from performing his regular job. He has done only this type of work. Although he may still have the physical ability to do light work, the government will consider him disabled because of his age and limited work background.

The rules on proving disability are very complex. If you are unable to do your regular work you should file a disability application. If your claim is denied, consult an attorney and consider an appeal. Many cases which have been denied the first time have been won on appeal.

In addition to proving the disability requirement, you must meet a special "disability insured" status. You must be fully insured and have recent Quarters of Coverage. A Quarter of Coverage is earned by working in employment covered by the social security tax, also known as the FICA tax. To be fully insured you must earn one Quarter of Coverage for every year after the year of attainment of age 22 up to and including the year you become disabled. This second requirement is different depending on when you become disabled.

If you become disabled in or after the calendar quarter you reach age 31, you must have at least twenty Quarters of Coverage during the 40 calendar quarter period ending with the quarter your disability begins. This is called the 20/40 rule. To determine this period, subtract 10 from the year the disability begins and begin with the first quarter after the quarter in the resulting year which corresponds to the quarter of onset of disability. The calendar quarters are as follows: first quarter - January, February, March; second quarter - April, May, June; third quarter - July, August, September; fourth quarter - October, November, December.

If you become disabled before the calendar quarter of your 31st birthday, there is an alternative to the 20/40 rule. Instead, you must have one Quarter of Coverage for every two calendar quarters in the period beginning with the calendar quarter after the quarter of your 21st birthday and ending with the quarter of onset of disability. If the number of quarters in this period is an odd number, use the next lower even number. A minimum of six quarters of coverage is always required. Quarters of Coverage earned before age 21 may be used if this is required to meet the requirement.

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