Health and Safety

ANNOUNCING NEW WEEKLY COLUMN What Do I Do Now?! – Workers’ Comp and Other Mysteries




Under the New York State Workers’ Compensation Law, an injured worker has two years to file a claim from the date of accident.  Even if a worker injured the same body part, it is essential that a new case be filled. 


On April 14, 2000, Joe Worker hurt his back on the job.  The injury caused him to lose two months of work because of a back sprain.  He then went back to work and stayed on the job without difficulties until July 22, 2003.  On that day, he had a new accident that also caused a back injury.  An MRI showed that he now had a herniated disc that required surgery.  But Joe did not want to have the surgery because he could not get time off from work.  


Unfortunately, he did not know he should file a new claim. Because he had hurt his back in 2000, he figured that this recent injury was related to the old case.  On October 5, 2005, Joe’s back was killing him and he finally agreed he needed surgery. However, when Joe contacted the New York City Law Department he was advised that because they had no record of an accident from 2003 his surgery was being denied.  When Joe contacted the carrier on the earlier case, he was told that surgery had been denied because it was not related to the 2000 date of accident.  Joe then contacted his private carrier who denied liability because this recent injury was the result of a work-related accident.  Joe was stuck. 

The way to avoid this problem is that anytime that you get hurt, file a new claim.  Although you may think that the new injury is aggravation of the prior condition, the law may not see it that way.  It is always better to file the second claim even if you think you aggravated the prior problem. Nobody wants to be in situation like Joe.  


Another reason to always file a claim is that as the rates of compensation go up over the next few years an injured worker can receive higher benefits while out of work recovering from a new injury.  With Joe, he was capped at $400 a week for his 2000 and 2003 dates of accident.  However, if the injury had occurred on October 5, 2007 he would be able to collect up to $500 a week. If it occurred on October 5, 2008, he would be able to collect up to $550 a week.  If it occured on October 5, 2009, he would be able to collect up to $600 a week. So, as you can see, there is also a financial benefit to filing the new case.  


Don’t be a Joe.  File your claim!


DISCLAIMER: This article is designed to provide general information.  Although this article has been prepared by professionals, it should not be used as a substitute for professional services.  If legal or other professional advice is required, the services of a professional should be sought. 

Matthew Funk, a partner at Brecher Fishman Pasternack Walsh Tilker & Ziegler, has been practicing Workers’ Compensation Law for over a decade.  He is a member of the Workers’ Compensation Bar Association, Injured Workers’ Bar Association and the New York Coalition for Occupational Safety and Health (NYCOSH).  He has written for the New York State Trial Lawyers’ Workers’ Compensation Decisions program and has lectured on numerous occasions focusing on Workers’ Compensation Law.  Send your Workers’ Compensation questions to: or call at (347) 952-4228.

 John Merlino, a partner with Brecher Fishman Pasternack Walsh Tilker & Ziegler, has extensive experience in Surrogate’s Court handling Wills, Trusts, and Estates.  His current area of practice is in Commercial and Workers’ Compensation.  He is politically active assisting politicians in both City and Statewide Community affairs and has participated and assisted in organizing numerous Union Rallys against NON-UNION Contractors and Builders.  He also teaches various unions’ Shopstewards and Apprentices on work safety, workers’ compensation and current events. For Workers’ Compensation questions, call (212) 341-7984.



March 24, 2010

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