Let’s break down what really happens when surgery comes into play in a workers’ comp claim—so you know what to expect and how to protect yourself.
Many people assume surgery equals a bigger payout. But workers’ comp doesn’t pay for pain and suffering. That’s personal injury law, not comp. In comp, your case value is tied to your permanent disability rating—not how painful the recovery is. And if surgery improves your condition, your disability rating (and therefore your case value) could actually go down.
After surgery, the law usually presumes you’re totally disabled while you heal, which often bumps your weekly checks back up to the full rate. But as you recover, your payments usually step back down. The higher checks don’t last forever—they shift as your doctor reassesses your condition.
Even after surgery, benefits can get cut if you weren’t properly “attached to the labor market” beforehand. If you were supposed to do a job search while partially disabled and didn’t, a judge may rule you’re not eligible for benefits during recovery. That’s why keeping up with work-search requirements before surgery is so important.
Surgery often resets the clock. Settlements usually happen once you hit Maximum Medical Improvement (MMI)—the point where doctors say you’ve healed as much as you’re going to. Surgery pushes that date out. For schedule injuries, it can restart the one-year waiting period; for back and neck cases, it can mean a year or more before settlement talks even start. And if complications come up, the delay is even longer.
Surgery always carries risks—like infection, scar tissue, or longer-than-expected rehab. Those complications can drag your case out, but while it’s open, workers’ comp should cover them. Settle too soon, though, and you may end up paying those bills yourself.
Approval isn’t automatic. In New York, you need a doctor who knows the workers’ comp system—how to file requests through the PAR portal, document care, and fight denials. Insurance companies often push back at first, saying you didn’t try enough conservative care or that your records aren’t detailed. Having a comp-savvy doctor makes a huge difference.
The Medical Treatment Guidelines (MTGs) require proof that you tried conservative care (like PT or injections) before surgery. If your records don’t clearly show that, insurers can deny it. Your doctor has to keep detailed notes of what was tried, how you responded, and whether more sessions are needed. Strong documentation keeps the door open; sloppy paperwork gives the carrier an excuse to slam it shut.
Nobody can force you to have surgery. Some people choose not to because of fear, faith, or timing. That can lower a settlement (makes the injury look less serious) or sometimes raise it (if it’s obvious you need the surgery but are waiting until the timing is right).
And if the surgery gets denied? Your doctor can resubmit. Or you may settle now while keeping your medical rights open so surgery can be covered later. Just don’t sign a full and final Section 32 unless you’re ready to give up medical coverage—those usually close treatment for good.
Common denial reasons:
The silver lining is that denials aren’t final. The insurer has to explain why, which gives your doctor and lawyer the chance to fix the gaps and resubmit. Persistence and paperwork usually win the day.
If you want to talk through your options, give me a call. No pressure—I’ll just walk you through what surgery could mean for your case. Reach out to me, Rex Zachofsky, anytime.
%20Final.webp)
