Worker's Compensation--New York

Front 1

What is the effect of an employer providing workers' compensation in New York?

Back 1

If an employee is injured on the job, and the employer has provided workers' compensation coverage, the injured employee finds her exclusive remedy under the provisions of the Workers' Compensation Law.

Front 2

Who determines whether a plaintiff is an employee and whether the accident is job-related?

Back 2

The Workers' Compensation Board makes these determinations.

Front 3

Who is entitled to Workers' Compensation benefits?

Back 3

Employees entitled to workers' compensation benefits include:

1. one employed in any business, trade, or occupation carried on by the employer for profit, excluding farm laborers,

2. one employed in any of the defined "hazardous employments,"

3. certain farm laborers,
and

4. certain domestic workers.

Front 4

Who is excluded from receiving workers' compensation benefits?

Back 4

1. Persons engaged in teaching or nonmanual work for religious, chartiable, or educational institutions;

2. babysitters;

3. spiritual leaders and members of a religious order.

Front 5

What type of casualties are covered?

Back 5

Benefits are provided for:
1. accidental injuries arising out of an din the course of employment, and such disease or infection as may naturally and unavoidably result therefrom;

2. death resulting from such injury; and

3. occupational disease resulting in disability or death.

Front 6

What is the extent of an employer's liability?

Back 6

Employer is not liable when the injury is:
1. solely occasioned by intoxication of the injured employee while on duty

2. solely occasioned by willful intention of the injured employee to bring about the injury or death of himself or another, or

3. incurred during voluntary participation in an off-duty athletic activity.

**Note--employees injured while committing an illegal act in the course of employment are covered.

Front 7

What is the extent of the remedy under WCL against employers and co-workers?

Back 7

An employee's claim for benefits under WCL is his EXCLUSIVE remedy against his employer and co-employees.

EXCEPTION: However, a co-employee not acting within the scope of his employment or who has engaged in a willful or intentional tort is subject to a common law tort action.

** Note--If the injury is not work connected, a common law action may be made against the employer.

Front 8

What is the extent of the remedy under WCL against third parties?

Back 8

An employee is entitled to recover under WCL may still maintain an ordinary common law tort action against a third party.

However, the TP may NOT seek contribution from the employer unless the employee sustained a grave injury.

Front 9

An employee is not entitled to double recover for the same injury. From whom does the workers' compensation insurance carrier have a right to seek reimbursement?

Back 9

The employee-- to the extend that the employee recovered damages in a TP action and only to the extent of workers' compensation benefits it paid to the employee.

Front 10

May a claimant who accepts workers' comp benefits maintain a wrongful death action against the deceased worker's former employer for intentional assault?

Back 10

No. This wrongful death action is barred.

Front 11

What is the effect of an employer's failure to secure compensation insurance?

Back 11

If the employer has failed to provide compensation insurance, an injured employee may elect to assert a claim for compensation benefits or to sue the employer in tort.

In the latter case, the employer may not raise the fellow servant rule, assumption of risk, or contributory negligence as defenses.

Front 12

What is the extent of the WC benefits?

Back 12

compensation includes:
1. all required medical services, medication, or apparatus,

2. compensation in the event of disability from work caused by covered injury (compensation is generally two-thirds of average weekly wages)

3. death benefits according to statutory schedule and funeral expenses,

4. double compensation and death benefits for injured minors illegally employed.

Front 13

How is compensation generally paid?

Back 13

Compensation is generally paid periodically, but an award for permanent partial disability is payable in one lump sum, without commutation to present value, upon the claimant's request.

Front 14

Note on WCL and subrogation and assignment.

Back 14

If an employee injured in the course of employment by the negligence or other fault of one not his employer or co-employee fails to bring the third-party action within six months after an award of compensation benefits, his claim against the third party is assigned, by operation of law, to the workers' compensation insurance carrier 30 days after the carrier's written notice to the employee. If the carrier, as assignee, recovers from the third party a sum exceeding the total amount of compensation award to the injured employee, it shall pay to the employee two-thirds of such excess.

Front 15

Can an employee agree to contribute to compensation insurance premiums or to waive his rights to workers' compensation?

Back 15

No. Any such agreement or waiver is void.

Front 16

Are compensation benefits available to claims of creditors?

Back 16

No. Compensation benefits are exempt from claims of creditors, which exemption may not be waived.

Front 17

Is an ilegitimate child, claiming death benefits of a deceased worker required to prove acknowledgement as a prerequisite to his claim?

Back 17

No. No such requirement exists.

Front 18

May compensation benefits be suspended at any time?

Back 18

Yes. Compensation benefits may be suspended during the period of claimant's incarceration upon conviction of a crime.