Workers Rights To Compensation
Imagine the following scenes.
A 60-year-old bricklayer becomes sick and disabled from lung disease acquired as a result of exposure to silica dust on the job. He has worked for 35 years in his trade, but for many different employers. He is now forced to retire and must receive constant medical care.
A toolmaker inhales toxic fumes from equipment used in her work and suffers lung and larynx injuries. She cannot return to tool making, but she is young and still able to work although probably at a lower wage. In addition, she continues to have shortness of breath because of her toxic exposure.
A janitor develops carpal tunnel syndrome, a compression of the nerve in the wrist, from the physical repetition of pushing brooms and mops. He needs surgery to be able to return to his job and may be out of work periodically even after surgery.
Are these employees eligible to recover workers' compensation benefits or other compensation for their illnesses? If they die, are their families entitled to any death benefits? Does workers' compensation cover other job-related conditions, such as hearing loss, lead or mercury poisoning, arthritis or varicose veins?
Workers who become disabled due to occupational disease lose wages and incur medical costs. In New York State, workers who suffer occupational disease are entitled to compensation for lost wages and medical treatment under the New York State Workers' Compensation Law. Compensation benefits are awarded to workers by the Workers' Compensation Board, a group of 13 commissioners who are appointed by the Governor and approved by the State Senate. To properly exercise their rights to claim and obtain compensation from the Workers' Compensation Board, workers must be aware of how the Board functions and what the law provides.
The Workers' Compensation Law also provides benefits for injuries caused by on-the-job accidents, and injuries or illnesses that do not arise out of employment. General information about the full scope of benefits under the Workers' Compensation Law can be obtained from the Board at the addresses listed at the end of this pamphlet.
Questions and Answers about Workers' Rights to Compensation for Occupational Disease
- Occupational Diseases (Questions 1 through 5)
- Compensation Benefits (Questions 6 through 8)
- Diagnosis & Medical Expenses (Questions 9 through 13)
- Filing a Claim for Benefits (Questions 14 through 18)
- Proving Your Claim (Questions 19 through 22)
- Additional Information (Questions 23 through 24)
1. What is an occupational disease?The Workers' Compensation Law defines an occupational disease as any ailment that is contracted or aggravated due to the nature of a particular kind of work. Not all work-related illness qualifies as an occupational disease under the Workers' Compensation Law. According to the law, the fact that an ailment or illness is contracted at the place of employment is not, in itself, enough to make it an occupational disease. The test used to determine what is and what is not an occupational disease is whether the nature or conditions of a particular type of work create a risk to employees who perform such work that is not shared by employees generally.
Consider this example. A nurse who contracts tuberculosis from a tubercular patient would be entitled to benefits for an occupational disease because it is an ordinary feature of a nurse's employment to be exposed to persons suffering from such diseases/ However, an office worker who contracted tuberculosis for being exposed to a co-worker would not be considered to have contracted an occupational disease because there is nothing in the nature of office work which would expose all persons doing that type of work to tuberculosis.
The Workers' Compensation Law lists 29 specific illnesses presumed to be occupational diseases if contracted by persons working with certain toxic substances, including silicosis and other dust diseases, dermatitis, anthrax, lead, mercury and radium poisoning. However, any disease or condition which is contracted or aggravated due to the nature of the employment may be covered under the Workers' Compensation Law.
Even if a condition does not qualify as an occupational disease, benefits may still be available under the Workers' Compensation Law if either the cause of the condition or the onset of the resulting disability is sudden enough in nature to qualify as an accident injury.
For example, a worker who suffers temporary hearing loss caused by an explosion or loss of sight due to a chemical splashing the eyes may be entitled to benefits as a result of such accidental injuries.
In another example, a worker whose arthritis flares up due to a sudden water leak or lack of heat at the place of employment may also be entitled to benefits.
2. Is an occupational disease limited to conditions caused by toxic substances?No. While most people think of occupational diseases as those caused by toxic substances, benefits can be awarded under the Workers' Compensation Law for any illness or disease resulting from a particular feature of the employee's work.
For example, occupational diseases have included arthritis in a worker whose job involved picking up heavy boxes and depositing them on a conveyor belt over her head; a hernia in a worker whose job consisted of lifting and bending; varicose veins in the feet of a gas station attendant whose duties required him to stand almost the entire day; and pneumonia in a butcher who was required to go in and out of a refrigerator, subjecting him to sharp variations in temperature. Hearing loss caused by excessive industrial noise is also an occupational disease covered by workers' compensation.
3. Can I obtain benefits for my occupational disease even if no one I work with has the same condition or I am particularly vulnerable to that illness?Yes. As long as it is caused by a distinctive feature of the work, even if only one employee develops the health problem, the ailment can be found to be an occupational disease.
For example, if a waiter with diabetes develops varicose veins from standing all day, even though no other waiter develops the same condition, the waiter's varicose veins may be found to be an occupational disease.
4. Do I have to be exposed at work to a toxic substance or hazardous condition for a long period of time to be entitled to compensation?No. If it can be demonstrated that the disease is caused by a short exposure or even a single incident, the disease will be considered occupational and covered by the Workers' Compensation Law as long as it results from a distinctive feature of your job.
5. I work with paints and solvents containing toxic chemicals on the job. I also work with paints and solvents on my own time out of work. Do I have a claim for benefits from my employer if I contract an illness from working with paints and solvents?As long as your work exposure contributed to your condition, it is probably covered. Depending upon the particular circumstances of your case, however, the Board may divide responsibility between the work and non-work related causes, which could result in your obtaining lower benefits.
6. According to my doctor, I have elevated levels of lead in my blood due to my work. My condition is not disabling, but he recommends that I not work for several weeks until my lead levels are reduced. Can I receive benefits for the time I am out of work?The Board usually upholds claims of this type. However, since there is no specific provision in the law covering these situations, at the present time such claims are usually contested by the insurance companies, leading to delays in obtaining benefits.
7. How much compensation is paid to someone disabled by an occupational disease?Generally, benefits under the Workers' Compensation Law are calculated at two-thirds of an employee's average weekly wage, subject to certain dollar limitations depending on the degree of the disability and ability to work. If the disabling condition improves and the worker's ability to work changes, the benefit level can be reduced. Partially disabled workers who remain capable of performing some work receive compensation at a lower rate. Benefits generally last as long as the person remains disabled.
8. If I die of an occupational disease will my spouse and children be entitled to benefits?Yes. The surviving spouse is eligible to receive death benefits in the amount of two-thirds of the average weekly wages per week, subject to limits set by law. The spouse receives death benefits until he or she remarries, at which time a final lump sum payment totaling two years of death benefits is paid. Surviving school-aged children share the death benefits with the spouse according to conditions and percentages set by the law. Certain other persons may be eligible for benefits in cases where there is no surviving spouse or school-aged child. There is also an allowance for reasonable funeral expenses.
Diagnosis and Medical Expenses
9. What about my medical and hospital expenses while I'm disabled from an occupational disease?The law requires the employer to provide and pay for all medical, hospital or other types of treatment needed due to the nature of the occupational disease. However, treatment must be supplied by health care providers authorized to treat people receiving workers' compensation. The Workers' Compensation Board maintains a list of health care providers authorized to treat workers suffering from occupational illnesses. Prior authorization from your employer, its insurance carrier or the Board, may be necessary for more expensive treatment or procedures. Workers are not required, and their doctors cannot force them, to pay for these medical expenses themselves. Workers who have paid for such services or are being pressed for payment by a doctor or collection agency, should immediately contact the Medical Registration Bureau of the Workers' Compensation Board.
10. What if I use my sick leave while waiting for my compensation claim to be decided? Am I entitled to get the leave restored to me once the claim is granted?There is nothing in the present law that expressly entitles workers to have their used sick leave restored by the employer. But, the employer can request reimbursement out of the compensation award for at least a portion of the wages paid to a disabled worker on sick leave while a claim was pending. Workers should alert the Board at the time of their hearing that they have used sick leave and should ask the Board to reimburse their employers only if the used sick leave is restored to the worker.
11. How can I find out if my condition is caused by exposure to a toxic substance on the job?Under State and Federal law, the employee, the employee's doctor, or a union representative may obtain written information about toxic substances found in an employee's workplace, including information concerning the known and suspected health hazards of those substances. The New York State "Right to Know Law" covers all public employees in New York State, and the federal Occupational Safety and Health Act covers all persons employed by private companies. Workers might also want to contact the occupational disease diagnostic centers near them for a diagnosis and any available information on the possible work-related causes of their conditions.
12. If I have been exposed to a toxic substance, but have not yet contracted an occupational disease, is compensation available to cover my present expenses for medical tests to see if I am developing a disease?Under the present law, a worker must actually contract an occupational disease before becoming entitled to payments for such medical monitoring. Unionized workers should consult a union representative to determine whether their collective bargaining agreement (contract) provides such benefits.
13. I have an illness due to my work, but the condition is not disabling and I can continue to perform my duties. Do I have to wait until I am disabled and unable to work in order to claim workers' compensation benefits? Can I at least be reimbursed for my medical expenses?A claim may be filed whenever there is an illness or condition caused by the nature of your work even if you can still perform your job. If you file a claim while you are still able to work, benefits will probably be limited to payment of your medical bills. Once time is lost from work because of a disability, you will receive biweekly benefits for lost wages as well as reimbursement of your medical bills. The amount of benefits you receive for lost wages is based upon when you became disabled. The Workers' Compensation Board makes this decision based on the evidence. Since the maximum benefit rate is increased by law from time to time, the amount of benefits for lost wages may be greater if you wait to file a claim until you are actually disabled from working.
Filing a Claim for Benefits
14. How do I file a claim for benefits?A worker must file a form, known as a "C-3" Employee's Claim for Compensation, available at any Workers' Compensation Board office. The form requires the worker to provide some basic information to the Board about his or her ailment.
15. What is the time limit for filing an occupational disease claim?A claim for disability or death must be filed with the Workers' Compensation Board within two years after being disabled, or within two years after the worker knew or should have known that the occupational disease was due to the nature of the employment, whichever is later.
For example, if a worker stopped working in 1986 because of shortness of breath but did not learn from a doctor until 1988 that the cause of the shortness of breath was an asbestos-related disease resulting from exposure on the job, the time to file a claim for benefits would not expire until 1990, two years after the worker knew that the disease was due to employment.
These time limits are different for claims filed for job-related hearing loss, and workers should consult the Board about when to file a claim for hearing loss.
16. Whom do I file a claim against if I have worked for several employers and was exposed to the same toxic substance on each job, but I do not know which job actually caused my illness?Generally, you should file a C-3 Claim for Compensation against the last employer where you were exposed to the toxic substance. However, as a general rule, the last employer is liable only if the exposure at that job contributed to the development or progress of the occupational disease. Therefore, if you had exposure at more than one job, you should probably file a claim against each employer where you were exposed or could have been exposed to a toxic substance causing the ailment. It is best to consult your union or an attorney or a claimant's representative, an individual licensed by the Board to represent workers, in such cases.
17. Whom do I file a claim against if I was exposed to a toxic substance ten years ago on a different job from my current one and did not contract an occupational disease until recently?If your present job does not involve exposure to the substance which caused your disease, your claim should be filed against the last employer in the job where you were exposed.
18. I retired several years ago at age 65. During the time I was employed, I was exposed to toxic substances on the job. If I should now develop an occupational disease because of that exposure, can I get workers' compensation benefits even though I am no longer working?You are entitled to have the medical expenses for your work-related illness paid. But wage replacement benefits are usually only available if the occupational disease causes lost wages. If you retired voluntarily and are no longer earning wages, you would probably not be entitled to benefits for lost wages. You should file a claim to have your medical expenses paid.
Proving Your Claim
19. What happens if my employer contests my claim for benefits?You will have a right to a hearing before an impartial administrative law judge who will determine your rights to benefits. If the worker or employer is not satisfied with the judge's determination, either one may appeal that determination to a panel of the Board, consisting of three Board members. Therefore, either you or your employer can appeal the panel's decision to court.
20. Will I receive benefits if my employer contests my claim?If the employer or carrier contests your right to benefits on the ground that your condition is not work-related, you will not be entitled to benefits while the case is being heard before the Board, but you can apply to the Board for non-occupational disability benefits during this period, which will be repaid out of any workers' compensation award you may ultimately receive. After the Board has finally decided a claim in your favor, you are entitled to be paid within 10 days of the award, even if the employer or carrier appeals the decision to the courts. If the employer or insurance carrier concedes your right to some benefits but contests the amount, you are entitled to receive the uncontested portion of the benefits while your case is being heard.
21. Will I need representation?You may represent yourself. However, occupational disease cases are complex and your employer may contest your right to benefits. You may want an attorney's help to file your claim, represent you before the Board and find medical experts to support your case. If you belong to a union, your union representative may be able to prove the names of attorneys who specialize in workers' compensation law. In addition to attorneys, the Workers' Compensation Board licenses individuals to represent employees making claims in workers' compensation cases. Some unions have licensed representatives on their staffs who represent union members without charge. You can obtain the names of attorneys and licensed representatives from your local Board office, or you may contact your local bar association. If you do retain an attorney or representative, do not pay him or her directly, since the fee will be fixed by the Board and deducted from your award.
22. What type of proof or medical evidence will I need to establish my claim that I contracted an occupational disease from exposure to a toxic substance?Occupational disease claims usually require two types of proof: (1) evidence that you were exposed to a particular substance in the course of employment; and (2) proof that the exposure caused the condition for which you are claiming benefits. The first type of proof may be supplied by your testimony, if you know what substances you worked with, or by employment records. The second type of proof will usually require a medical report indicating that your condition was caused by exposure to the substance. Your doctor should be able to provide you with such a report, or you could utilize one of the occupational disease clinics established recently in this state for that purpose.
23. I'm afraid that if I file a claim for workers' compensation benefits, my employer will find out I have a disease and fire me. Does the law provide any protection against this kind of treatment?There are two laws which provide limited protection for the job security of workers who contract occupational diseases. The Workers' Compensation Law protects workers against discrimination by an employer because the worker has filed a claim for benefits or testified at a workers' compensation hearing. However, that law does not prohibit an employer from firing a worker for excessive absenteeism even if it is the result of a work-related disease. The Human Rights Law protects workers from discrimination on the basis of a disability, including one caused by an occupational disease. So, as long as you are able to perform substantially all of your job duties, you cannot be fired or otherwise discriminated against simply because you have a disability. Therefore, if your employer fires you either because you have an occupational disease or because you filed a claim or testified at a workers' compensation hearing, you may have a claim for damages which should be pursued before the New York State Division of Human Rights or the Workers' Compensation Board.
Other state and federal laws protect workers from discrimination because they requested information about on-the-job health hazards or because they filed a complaint with a governmental agency about unhealthy conditions in their workplace, or otherwise exercised any rights under those laws. For information about their rights under those laws, workers should consult their unions, private attorneys, the New York State Attorney General's Labor Bureau, or the New York State or United States' Department of Labor.
24. If I suffer an illness or injury or die of an occupational disease, can I or my family sue my employer in court and collect damages?In most cases, workers are not allowed to file private lawsuits against their employers for illnesses or injuries arising from occupational disease, but there are exceptions. The Workers' Compensation Law does not prevent you or your family from filing lawsuits from damages against third parties, such as the manufacturer of the chemical or toxic substance which caused your illness or injury. In addition, if your employer intentionally injured you or failed to obtain workers' compensation insurance coverage, you or your family may be able to bring a private lawsuit against your employer.
25. Where can I get more information about my rights under the Workers' Compensation Law?Workers may contact the Workers' Compensation Board at any of the local district offices.
Workers' Compensation Board District Offices
- Albany: 100 Broadway, Albany, New York 2241 (518) 474-6674
- Binghamton: State Office Building, 113 State St. 4th Fl., Binghamton, New York 13901 (607) 773-7867
- Buffalo: 125 Main Street, Buffalo, New York 14203 (716) 847-3158
- Hempstead: 175 Fulton Avenue, Hempstead, New York 11550 (516) 560-7700
- New York City: 180 Livingston Street, Brooklyn, New York 11248 (718) 802-6600
- Rochester: 130 Main Street West, Rochester, New York 14614 (716) 238-8300
- Syracuse: 935 James Street, Syracuse, NY 315-423-2938
Occupational Disease Diagnostic Centers in New York State
See DOH NYS Occupational Health Clinic Network for latest information
- Albany/Poughkeepsie: Eastern New York Occupational Health Program, 1202 Troy Schenectady Road, Latham, New York 12110 (518) 783-1518. Mid Hudson Satellite - (845) 471-2800
- Buffalo: Union Occupational Health Center, 450 Grider Street, Buffalo, New York 14215 (716) 894-9366
- Cooperstown: New York Center for Agricultural Medicine and Health, 1 Atwell Road, Cooperstown, New York 13326 (607) 547-6023 (800) 343-7527
- Long Island: Occupational Medicine Clinic, c/o Department of Preventive Medicine Division of Occupational Medicine, HSC, Level 3, SUNY at Stony Brook, New York 11794-8036 (516) 444-2167
- New York City: Mount Sinai Hospital, Irving J. Selkioff Occupational Health Clinical Center, Gustave L. Levy Place, P.O. Box 1058, New York, New York 10029 (212) 241-9738
- Westchester: Phelps Hospital, Mount Sinai Clinic - Hudson Valley Division, 701 North Broadway, North Tarrytown, New York 10591 (914) 366-3000 (Hospital), (914) 366-3670 (Clinic)
- New York City/Health and Hospitals Corporation: Bellevue Hospital, Occupational and Environmental Health Clinic, 27th Street and 1st Avenue, C and D Building, Room 349, New York, New York 10016 (212) 561-4572
- Rochester: Finger Lakes Occupational Health Services, c/o University of Rochester Medical Center, 435 E. Henrietta Road, Room 4F-12, Rochester, New York 14620, (716) 274-7105
- Syracuse/Binghamton/Utica: Central New York Occupational Health Clinical Center (CNYOHCC), 550 Harrison Center, Suite 300, Syracuse, New York 13202 (315) 464-6422