The amount of time you can receive workers compensation benefits is different for each state. Here in New York State, you could presumably receive benefits for the rest of your life if you're classified with a permanent total disability. However, benefits for permanent partial disability are capped based upon your overall level of disability.
States like Indiana, North Carolina, Virginia, and New York have the longest potential time limit of approximately 500 weeks or almost a decade, while states like California, Florida, and Texas have the shortest limit at 104 weeks or 2 years of benefits. The limit for most other states is until you reach maximum medical improvement, referred to as MMI, or until you can return to work. But these numbers don't tell the whole story.
If you're not careful, there are all kinds of ways that your benefits can get cut off early. And depending on your injury, it's possible to continue receiving benefits long after reaching maximum medical improvement. So let's find out how you can keep your benefits as long as possible, and even more importantly, what you can do to maximize the amount of benefits you receive. Here in New York State, the length of time you can receive benefits largely depends on what your particular situation is.
For example, suppose you sprained your ankle in the warehouse, and you're temporarily unable to do your job lifting heavy objects, but you can do simple office work like answering the phone or making photocopies. In this case, you would receive what's called "Reduced Earning Benefits" for your temporary partial disability. These are benefits that are paid to employees who can return to work but are earning less than their previous average weekly wage.
You would likely receive these reduced workers comp benefits for only several months, because once you're sprained ankle healed, you could get back to work and you'd stop receiving temporary benefits. Now let's suppose you were working at the same warehouse job, but instead of spraining your ankle, you herniated a disc in your back, which not only prevents you from doing your job, but also makes it so you can't even sit in a chair for a long period of time, which means you can't even do office work either. All you can do is lie down at home while your injury recovers.
In this case, you would receive what's referred to as "Temporary Total Disability Benefits", which are wage replacement benefits that pay you two-thirds of your average weekly wage for the entire time that you are temporarily totally disabled from work. Your weekly benefits are subject to a cap which is set by the law.
You would likely receive these benefits for the initial period of time immediately following your injury, during the time that you are totally disabled from work. But then as your condition improves, your benefits would likely be reduced to temporary partial disability benefits, and you would continue to receive those until you go back to work, which might be months later, depending on the nature and severity of your particular back injury.
Next, let's imagine you're working the same job, and a heavy object falls on you, crushing your pelvis and resulting in severe bone fractures. Just like in the previous example, your injury temporarily prevents you from doing any work at all. The only thing you can do is sit at home while your body heals. And during that time, you'll receive temporary disability wage payments to compensate you for your lost wages until you go back to work, which in this case might be about 12 months later.
Here's where the situation is different.
Once the doctor's determined that your pelvis has reached maximum medical improvement, a judge will evaluate the evidence and determine your permanent partial disability, which in this case would result in a 33% loss of wage earning capacity, for instance. At this point, your temporary benefits will end, but you're eligible to continue receiving permanent disability benefits for years to come. These permanent partial disability benefits are awarded to anyone with a permanent injury to a body part, such as their spine, pelvis, lungs, heart, or brain. And depending on the severity of the injury, you could receive ongoing benefits for up to 10 years.
Now comes the worst case scenario. Suppose you're working the same job and an entire rack of heavy objects falls on top of you, resulting in severe bone fractures and a traumatic brain injury. Even after reaching maximum medical improvement, your traumatic brain injury is considered a permanent disability that will likely never improve.
In this case, you would be eligible for what's called permanent total disability, which are payments of two-thirds of your average weekly wage, subject to the legal maximum that we discussed earlier, for the rest of your life. Note that this is not the case in all states.
Some states will stop permanent total disability payments when you reach a certain age, but here in New York, you can receive them for the rest of your life. So the biggest factors when determining how long you receive workers comp benefits are the type of injury you have and how severe that injury is. They can make the difference between you receiving workers comp benefits for weeks, months, years, or decades.
Whatever your injury is, your goal should be to make sure you collect all the benefits you're entitled to for the entire time that you're entitled to them and don't get them taken away too early. I'm going to explain how to do that, as well as how to maximize the benefits you receive, but before I do, I wanted to let you know that I am currently accepting new clients.
My name is Rex Zachofsky and I became a New York workers compensation lawyer 17 years ago after getting injured on the job.
And if you're looking for a lawyer to help you with your claim for New York State workers compensation benefits, please give me a call at 212-406-8989 to schedule a free consultation.
There are all kinds of reasons why injured workers will get their benefits cut short, so let's go through the most common ones and how you can avoid them.
Most of you aren't at the beginning of your workers compensation case, but for those of you who are, one of the biggest dangers to your benefits is failing to report your injury promptly.
Here in New York, you have 30 days to notify your employer of your injury, and failure to do so won't just cut your benefits short, it will prevent you from collecting them altogether. The same goes for filing your workers compensation claim. If you don't submit it within two years after your accident, you won't be able to receive benefits.
Next, once you've filed your workers compensation claim, it's important that you seek medical treatment right away. This is not only to ensure the best possible recovery from your injury, but also to gather medical evidence that directly connects your injury to the workplace and fully exhibits the extent of your injuries. Some of the most common ways for insurance companies to deny workers compensation benefits is by arguing that your injury wasn't work-related or that the injuries are not that severe. So if you take your time getting your medical treatment, you're making it easy for them to deny your claim. Get to a doctor and get treated as soon as you can.
Next, once you have a treating doctor, make sure you go see them at least once every 90 days. Why? Because the insurance company can shut down your benefits if you don't provide them with regular medical evidence. Here in New York State, it's called the 90-day rule. And if you don't follow it, the insurance company might be within their rights to stop paying your temporary loss wage benefits.
I recommend to my clients that they go at least once every six to eight weeks just to be safe. Even if you live in a state that doesn't have this rule, it's still a good idea to regularly go see your doctor so you have the medical evidence necessary to defend your benefits. Another way you can have your benefits cut short is if you fail to follow your doctor's instructions.
In the best case scenario, the insurance company will think that your injury isn't as severe as you claim it to be. And in the worst case scenario, they'll suspect you of fraud. Either way, they can use your failure to follow medical advice to reduce or deny your benefits. So make sure you follow your doctor's instructions to the letter.
Speaking of fraud, it's no joke. And injured workers are getting accused of workers comp fraud even when they haven't committed it. And if you're found guilty of fraud, you can not only lose all of your monetary benefits, but you can even face criminal penalties and be looking at jail time. So it's not something to mess around with. If you are caught in a lie, caught exaggerating, or caught omitting information in your workers compensation case, there's a strong chance you'll be accused of fraud.
Some examples include if the judge or insurance company asks if you've been working and you say no, but in reality, you did work a few days at your cousin's store. If you exaggerate your injuries while at the doctor, such as pretending that your range of motion is more limited than it actually is. Or if you fail to reveal you have a pre-existing condition, injury, or accident to the same body part as your workplace injury.
We have even seen clients accused of fraud for shoveling snow or taking out the garbage. All of these can land you in hot water. So how do you avoid being accused of fraud? Very simple.
Be honest and upfront about everything, especially with your doctor and your lawyer. Your attorney will know how the insurance company and the judge will react to different information. So tell your lawyer everything and let them decide what is and is not a big deal. Next, don't get caught by surveillance. The insurance company can put surveillance on you at any time during your case. They could use all sorts of ways to spy on you, such as following you at a time when they know you'll be in public, such as when you have a doctor's appointment. Comparing notes between your doctors to see if there's anything inconsistent between them. And looking at social media posts of you and your friends and family.
If they find any evidence that you're not as injured as you say you are, I can guarantee that the insurance company will use it to reduce or deny your benefits. So what can you do to protect your benefits from surveillance?
We've already talked about two of the most important steps you can take, which is being honest and following your doctor's orders at all times. Be mindful of your activities and don't over exert yourself. While it's very noble of you to help your elderly neighbor shovel snow, but if you are truly unable, you shouldn't even try. Your nobility isn't going to pay the bills when your benefits are suspended and you've been accused of fraud. Investigators can watch you day and night and all it takes is one slip up for them to try to end your benefits.
Next, while you might not want to go back to work, if your doctor clears you for light duty and your employer offers you a light duty job that falls within your medical restrictions, then you must strongly consider taking the job or something similar if you want to continue receiving workers compensation benefits. The insurance company can move to have your benefits cut off if you don't accept a legitimate light duty position. So if your treating doctor gives you the green light, then you need to do your best to accommodate the work.
Next, a tricky way insurance companies will try to get you off of workers comp is by insisting that you search for work when you no longer have a temporary total disability. In one of the examples at the start of this video, I mentioned that you will typically be taken off temporary total disability benefits usually a couple months after you initially get hurt. Depending on how that happens, you might be required to then start searching for work in order to continue receiving your workers comp benefits. And if that happens, make sure you follow through and properly search for work so you don't get your benefits taken away.
That's one reason why it's so important to have a workers comp lawyer on your case because they can help you transition to temporary partial disability without the need to start looking for work.
So to recap, some of the most important things you can do to keep your workers comp benefits for as long as possible include: Making sure you don't miss any deadlines; visit your doctor regularly (and I recommend every six to eight weeks if possible); keep detailed records of your injury, treatments, and all communications; always follow your doctor's instructions; be upfront and honest about your history and any pre-existing conditions or injuries; don't get caught doing anything that goes against your medical restrictions; accept light duty work if your doctor cleared you to do it; search for work when you're required to do so; and get a lawyer to handle your case instead of trying to do it on your own.
All that said, ultimately your goal shouldn't be to stay on workers compensation longer than you need to. Ask anyone who's permanently disabled and they'll tell you sitting at home all day or collecting a check is not a fun place to be. Instead a better goal is to maximize the amount of benefits you receive when you need them.
Believe it or not, staying on workers comp as long as possible and getting the most benefits possible are not the same.
I speak with injured workers all the time who have been home collecting weekly checks and still think they can get a large workers compensation settlement. But that's not always how it works. If you have a permanent disability in one of your extremities—such as arms, hands, legs, feet, fingers or toes— the weekly wage payments that you receive while you're out of work are ultimately deducted from any award that you receive. Which means that the longer you're away from work the less your overall settlement might be worth.
Not only that, by trying to stay out of work for as long as possible you might end up with less money in your pocket than if you returned to work earlier. How you might ask?
Well here's an example.
If you injured your arm and your workers compensation case turns out to be worth $50,000, but you were out of work for 10 weeks and you got paid $1,000 a week in temporary benefits, that $10,000 is going to be deducted from your final settlement payout, leaving you with $40,000. But if you only took one week off of work instead of 10, that means you only received $1,000 in temporary benefits for the one week of lost time. So when you settle your case you'll get paid $49,000 in addition to the wages you earned while at work, making you significantly more money than if you tried to stay out on workers compensation as long as possible. So please don't try to stay out on workers comp forever.
Instead, try to get better and return to work as soon as you can. You'll not only be a happier person but you might make more money. To get an idea of how much money your workers compensation case is potentially worth, please watch my other video "What's My Workers Comp Injury Worth?" In it I go into more detail about how to calculate permanent disability benefits and I give you the average value of workers compensation cases nationwide.
I'll put a link to that video here.
Click to watch it now and I'll see you there.
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