I have workers’ compensation (“WC”) insurance, and one of my employees got hurt. Do I need to report it?
Probably. With the exception of injuries such as paper cuts and minor bumps and bruises, all injuries should be reported to the Workers’ Compensation Board and your insurance carrier by completing C-2F report. You must complete the C-2 Form and keep it on file for the statutory 18-year period, even if the injury is not reportable to the Board.
Do I need a lawyer to defend me in my workers’ compensation case?
No, you don’t necessarily need a lawyer to defend you in a WC claim filed against you. Much depends upon the nature of the claim.
If you have WC insurance and one of your employees was injured in the course and scope of his or her employment (something a lawyer will define for and explain to you), your insurance carrier will appoint defense counsel to represent you if the claim can’t be resolved without litigation. There are very specific procedural rules that are strictly applied to carriers (and the employers they insure), plus there are complex Medical Treatment Guidelines (“MTG”) that often need to be addressed. Thus, I recommend that you take advantage of the defense counsel appointed. It’s provided under your policy, which has a “Duty to Defend” provision.
Similarly, if you have been served with a penalty notice from the WC Board’s Bureau of Compliance, you probably should not try to navigate the discussions alone. The Board basically takes a “guilty until proven innocent” approach, and the trend appears to be to collect information and documentation for the sole purpose of “justifying” huge penalties, even against tiny businesses. It doesn’t suggest any guilt when you hire an attorney and might actually give the Board some relief because the administrators will be more confident that they are dealing with someone who understands the nuances of worker classification and coverage requirements.
One of the biggest mistakes I see on a regular basis is business owners relying solely on their accountants and Internal Revenue Service (“IRS”) classifications of workers, such as independent contractors. The New York State (“NYS”) Department of Labor (“DOL”) and NYS WC Board do not always align with the IRS, so the lawyer you didn’t pay for when you started hiring employees might be the one you have to pay a lot of money to negotiate a penalty resolution.
In short, you can always choose to go without counsel, but I do not recommend it when dealing with the WC Board.
Can I participate in my workers compensation defense, even if I hire a lawyer?
Yes, of course, you can participate in the defense of a claim filed against you or your business! You might get a different idea from the Board, which chooses not to send you Notices of Hearing once it feels you aren’t necessary for the proceedings anymore, but you are entitled to know what is going on in cases filed against you.
Do not let anyone at the Board or your workers’ compensation (“WC”) insurance carrier tell you otherwise. In fact, I find that I often resolve more quickly the cases in which my employer-clients are involved. You know your employees and your work environment far better than we do, and if you don’t fill in the gaps between a judge’s or attorney’s knowledge, guess who does:
- Your injured worker who has gotten comfortable being paid while staying home (even if it is a little less money)
- The injured worker’s co-worker, friend, friend-of-a-friend, neighbor, union representative, etc.
- The judge’s imagination
- The attorneys’ assumptions or guesses
As I often tell employers that I teach about WC, you are often my best investigator.
My injured employee is out of work. Is there anything I need to do while he is out?
Yes. There are a number of forms and tasks you should complete.
- Call the employee regularly to determine his progress and relay that you value his employment. Statistics show that injured workers are more likely to return to work when they feel they are appreciated.
- File Form C-240, which can also be downloaded from the Board’s website. This will be used to determine the employee’s average weekly wage (“AWW”) and rate of WC payments.
- Keep notes and copies of doctors’ notes or medical records in the employee file (but secure from review by other employees and people who are not administering the claim). Forward copies of the doctors’ notes and medical records to your WC insurance carrier.
- Promptly notify your insurance carrier of any tips that the employee is working, playing sports, bragging about receiving payments for a minor injury, or otherwise engaging in activities inconsistent with his disability.
My injured employee’s doctor has released her to return to work. Other than scheduling her and welcoming her back, what do I need to do?
Immediately call her and tell her the date and time that you expect her to return. Send her a friendly, formal notice—in writing—that specifies that date and time. Keep a copy of the letter in her employee file, and forward copies to the Board and your insurance carrier.
If she returns, complete C-11 report and send it to the Board and your carrier.
If she does not return, call your carrier to determine whether there is any conflicting medical evidence that would justify her failure to return. If not, send a second formal notice informing her that if she does not return by a specific date, you will consider her failure to return job abandonment. At this point, you will probably have an attorney appointed to defend the claim. Work with the attorney to determine whether to return the employee to work or lawfully terminate her.
My injured employee’s doctor released him to return to work, but he is restricted from performing some of his regular duties. What should I do?
It depends. Call your carrier or the defense attorney to discuss your options. Your ability to accommodate his restrictions will determine your responsibilities. There may also be issues of reduced earnings, intermittent lost time and ongoing medical treatment that must be considered on a case-by-case basis.
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DISCLAIMER: This article is intended only as general information. It is not legal advice and does not establish an attorney-client relationship. Additionally, some laws and procedures might have changed. If you need specific legal advice, please contact an attorney to discuss your circumstances.
Nance L. Schick, Esq. is a New York City attorney and mediator who focuses on keeping people out of court and building their conflict resolution skills, especially in business and employment disputes. Her holistic, integrative approach to conflict resolution draws from her experience as a crime victim, human resources supervisor, minor league sports agent, and United Nations representative. She is a 2001 graduate of the State University of New York Buffalo Law School trained in Alternative Dispute Resolution (ADR) by the Equal Employment Opportunity Commission (EEOC), Financial Industry Regulatory Authority (FINRA), and International Center for Ethno-Religious Mediation (ICERM). She is also creator of the Third Ear Conflict Resolution process, author of DIY Conflict Resolution: Seven Choices and Five Actions of a Master, and an award-winning entrepreneur, who has been acknowledged by the New York Economic Development Corporation/B-Labs (Finalist, Best for NYC 2015 & 2016), U.S. Chamber of Commerce (2015 Blue Ribbon Small Business), Enterprising Women Magazine (Honorable Mention, 2014 Woman of the Year awards), and Urban Rebound NY/Count Me In (Finalist, 2013 Pitch Competition).