How to start a worker’s compensation claim?
Oct 17, 2019 | 7717 views | 0 0 comments | 431 431 recommendations | email to a friend | print

The worker’s compensation case is an insurance claim that provides medical benefits and lost wages to an employee injured while at work. Unlike a civil lawsuit that is meant to recover damages, worker's compensation exclusively focuses on wage replacement and medical benefits. Because the worker's compensation case is an insurance claim, employers are represented by their insurance carriers and their insurance attorneys. Every employee is covered by either state or federal workers’ compensation law, regardless of immigration status.  And with few exceptions, every employer must obtain workers’ compensation insurance for all of their employees.

Our experienced workers’ compensation attorneys will maximize an employee’s lost wages and medical benefits.

If an employee elects to receive worker's compensation, that injured employee relinquishes their right to civil lawsuit solely against his or her employer – he or she can still sue other parties responsible for the accident. That means that an employee cannot initiate both an insurance claim, through worker's compensation, and a civil lawsuit against their employer. The worker's compensation law was created to provide medical benefits and lost wages to an injured employee who suffered a work-related accident; it was not meant to give an employee “two bites of the same apple.” 

However, an injured employee can sue an entity - that is not their employer – in a civil lawsuit, while maintaining a worker’s compensation claim against their employer.

An example of this would be a construction worker who falls off a scaffold in the course of his employment. The employee can maintain an insurance claim against his or her employer in workers’ compensation court, while, also, maintaining a civil lawsuit against the owner of the construction site in civil court.

Formally, the worker's compensation process begins when an employee suffers a work-related injury. A work-related injury can occur as a result of an actual accident, such as a construction accident - worker suffering a slip and fall on the job - or injury from repetitive stress, such as a laundry worker developing chronic pain to his shoulders as a result of continuously picking up laundry bags.  An employee must be engaging in work-related activity or activity at the request of their employer.

An injured employee will likely visit a medical provider, such as a doctor, urgent care or emergency room after a work-related injury is discovered. Many injured workers will be examined by a workers’ compensation licensed doctors, given there are special rules that govern medical reports submitted to the worker's compensation Board. Such medical reports must include three (3) pieces of information: the work accident history, a comment on the employee’s level of disability, and a statement that the injury correlates to the employment or injury. The earlier employees obtain medical records that comply with workers’ compensation rules, the sooner they can receive lost wages. It is important that an employee mentions prior accidents or treatments that involve the claimed body parts at the time they obtain medical records. For example, if a construction worker injures his neck during a work-related fall, he must disclose all prior treatment to the neck. In worker's compensation, prior treatment is considered to be prior diagnostic tests, like MRIs or x-rays, physical therapy visits or injections. Failure to disclose prior treatment can fatally harm a worker’s compensation claim. If discovered, a claim can be dismissed, or the employee can be precluded from receiving lost wages.

In addition to producing medical reports, an injured party will need to produce witness information, HIPAAs, payroll documentation, and any other relevant medical reports, if applicable.  Witness names are critical early into the filing of a workers’ compensation claim because those people can support an employee’s allegations. An experienced attorney will immediately assist an employee in obtaining that information. The production of payroll documents, such as pay stubs and tax returns, are critical to a workers’ compensation claim because an injured worker's lost wage benefits are dependent on the employee’s income at the time of the injury.

Lost wages are determined by the injured employee’s income at the time of the disability. To determine an employee’s lost wages, the courts will review the employer’s payroll documents and/or the employee’s tax returns and paystubs. In workers’ compensation, an injured employee is only entitled to two-thirds (2/3) of their pre-disability salary. That means that if an injured employee was making $1000.00 a week at the time of their accident, they will be compensated $666.00 maximum per week through workers’ compensation. It is important to accurately establish the employee’s salary early into the claim because an incorrect calculation can result in additional months of litigation. Lost wages are dependent on the available medical reports, as well. Once an injury has been documented by medical reports and submitted to the worker's compensation Board, the insurance carrier will have the opportunity to accept or deny a claim.

If the employer accepts a claim, treatment to the injured body parts will be immediately authorized, and an employee will begin to receive lost wages. If the insurance carrier denies the case, then a hearing will be calendared. Once a hearing has been scheduled, the insurance carrier will be given an opportunity to produce an independent medical examiner (IME) to examine the injured employee and obtain their prior medical history. If the injured party is successful in proving his or her case and has remained out of work as a result of the injury, the worker's compensation judge will establish the case and direct payment of lost wages.

Filing and litigating a workers’ compensation may appear simple however legal representation is often required as there are a lot of time-sensitive obligations that can be easily overlooked by an injured party. If you or someone you know has been the victim of an accident, please reach out to us for a free legal consultation by calling us 24/7 at 212– 514–5100, emailing me at or visiting our law firm in lower Manhattan (42 Broadway, Suite 1927). You can also ask us questions through the 24-hour chat box on our website ( We offer free consultations for all potential personal injury cases.

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