Workers Comp

Question 0

Employees Defined

Answer 0

employed in a trade, business, or occupation
by the employer FOR PROFIT where
ONE OR MORE employees is employed.
Includes
certain farm workers
Workers engaged in hazardous employment
domestic workers employed 40 hours per week by the same employer

Question 1

NY Workers Comp Requirements

Answer 1

All employers provide 
compensation to employees 
for disability or death
resulting from accidental injury 
Arising out of and in the course of employment
without regard for fault.

Compensation under WCL is the exclusive remedy and limits workers common law right to seek damages in tort.

Question 2

Persons not eligible for WC

Answer 2

Independent contractor
babysitters
federal employees
municipal employees
employees covered under federal WC scheme
Persons engaged in teaching, non-manual capacity in or for a religious, charitable, or educational institution
members of a religious order
incarcerated persons

Question 3

Independent Contractor

Answer 3

1. Who controls work and its performance
2. Method of payment (lump sum v salary)
3. who furnishes the tools and materials
4. who has the right to hire and discharge
5. character of the person’s work or business.
   The extent he may be expected to carry his own accident burden, relation to the employers business - regular part of employers work.

Question 4

Injuries covered by WCL

Answer 4

Accidental physical injury and
disease or infection naturally and unavoidably resulting from an injury
emotional distress or stress - more than usual workplace stress
occupational disease resulting from nature of employment
contracted during employment
death from any covered injuries.

Question 5

Injuries NOT covered by Workers Comp

Answer 5

1. Solely Mental Injuries caused by work related stress resulting from a lawful good-faith personnel action.
2. Intentional wrongdoing of a co-worker
3. Portal to Portal Rule - travel to and from workplace except where travel is required for work.
4. employees use of alcohol or controlled substance at work
5. employees willful intervention to cause injury or death to himself or others.
6. Voluntary athletic activity unrelated to the employees work related duties unless the employer
   a. requires employees participate
   b. compensates employee for participation
   c. otherwise sponsors activity

Question 6

Liability of an Employer under WCL

Answer 6

Liability under WCL is exclusive
precludes any other liability as a result of covered injuries.

Is not affected by the fact injuries resulted from the fault or negligence of a 3rd party.

Employer may have a CoA against the 3rd party to recover amounts paid for medical treatment.

Question 7

Remedies Against 3rd Parties

Answer 7

Employee may accept benefits and compensation under WCL and within 6 months of acceptance of award, seek another remedy against 3rd parties.

State Insurance Fund or other insurance carrier may have a lien against any recovery paid to Employee by the 3rd party to the extent of the compensation made to Employee under WCL.

Question 8

Subrogation Rights

Answer 8

An employee who fails to seek recovery against a 3rd party within the 6 month time limit thereby assigns the CoA to the state insurance fund.

If the state insurance fund recovers an amount in excess of the total amount awarded to the employee it must pay 2/3 of the excess to the employee.

Question 9

Medical Benefits under WCL

Answer 9

Med reimbursement based on state set fee schedule.

Fees for med services are payable only to a physician or other health provider for treatment arising from a covered injury.

Question 10

Compensation under WCL

Answer 10

Is exempt from claims of creditors or any remedy for recovery or collection of a debt. Exemption cannot be waived.

Calculated based on employees average weekly wage at the time of the accident.

Death compensation includes funeral services

Compensation is doubled for minors employed or working in violation of labor laws.

Question 11

Notice Requirements for WCL

Answer 11

Written notice to employer of compensable injury within 30 days of the accident causing injury except:

1. Employee is unable to give notice for sufficient reason
2. Employer has knowledge of accident or death
3. Lack of notice within 30 days does not prejudice employer

Question 12

SoL for WCL

Answer 12

Right to a claim of compensation is barred unless a claim is filed within 2 years after the accident or within 2 years of the resulting death

Question 13

Solely Mental Injuries - covered or not ?

Answer 13

If caused by work related stress
resulting from a lawful good-faith personnel action
Injury is not covered by workers comp

Question 14

Portal to Portal Rule -

Answer 14

Injury caused while traveling to and from workplace is not covered except where travel is required for work.