Hearings

A claim is paid by the employer’s insurance carrier if the employer or insurance carrier agrees that the injury or illness is work-related. If the employer or insurance carrier disputes the claim, no cash benefits or medical care costs are paid until the New York State Workers’ Compensation Law Judge issues a favorable decision. When a claim is disputed, it is called a “controverted” claim, and at this point your FOA attorney, who has considerable experience with New York State Workers’ Compensation Law, will be very helpful to you.

When a claim is controverted, your FOA workers’ comp attorney will ask the Board for a hearing. The Board will hold a hearing or series of hearings before a Workers’ Compensation Law Judge. You will be notified by the Workers’ Compensation Board of the hearing date, and you should notify both your attorney and doctor as soon as the hearing is scheduled.

At the first hearing, the basic facts of the case and paperwork are reviewed. If the claim is determined to be compensable, the Judge determines the amount and duration of the compensation award. However, it is common for a hearing to be “adjourned” (continued to another date) for any of the following reasons:

• A current C-4 from your physician was not on file.
• The insurance carrier decides his/her doctor must examine you.
• There is disagreement over the amount of your earnings and the Judge needs more information.

The hearing is where FOA workers’ compensation experience shines. An FOA attorney will be present with you at every hearing. The Judge may take testimony, review medical and other evidence and will decide whether you (the claimant) are entitled to benefits. The hearings are often very brief, and claimants with legal representation usually don’t have to say very much, if anything.

Appeals

Once the judge makes his/her decision on the claim, either side may appeal the decision within 30 days of the filing of the Judge’s decision. An appeal must be in writing requesting that the Board reviews the decision. If the application is granted, a panel of three Board Members will review the case. This panel may affirm, modify or rescind the Judge’s decision, or restore the case to the Law Judge for further development of the record. In the event the panel is not unanimous, any interested party may make application in writing for a full Board Review. The full Board will review and either affirm, modify or rescind such decision.

Appeals of Board Panel or Full Board decisions may be taken to the Appellate Division, Third Department, Supreme Court of the State of New York, within 30 days following the filing of the WCB decision. The decision of the Appellate Division may be appealed to the Court of Appeals.

Discrimination

An employer may not fire or otherwise discriminate against an employee or applicant because he/she has claimed or attempted to claim Workers’ Compensation. An employee who has testified or is about to testify in a Workers’ Compensation proceeding is also protected. Violators of the law are subject to a penalty of $100 to $500.

A worker who believes that he/she has been discriminated against must file a complaint within two years. To file a complaint of discrimination, an employee should file a Form DC-120 with the nearest Workers’ Compensation Board District Office.

If the Board finds that an employee was improperly discharged, the Board will order that the employee be restored to their previous position or privilege. The Board can order that the employee be paid by the employer for any loss of compensation arising out of the discrimination.