Slipped on water in the break room? Now your back is starting to hurt. What do you do? If you are hurt at work in Brooklyn, Staten Island or New York, you should first get medical attention, whether its onsite with a nurse or at a hospital. When the hospital asks for your insurance, tell them you were just hurt at work and don’t have the information yet. By law, even if you have private medical insurance, a hospital can’t use that insurance for your visit. Your employer will provide you with the workers compensation insurance information to give to the hospital.
That first hour matters more than most people realize. Below is what I tell injured workers who call my office, in the order it needs to happen.
Say the Words “This Happened at Work”
Whoever treats you needs to hear that this was a work injury, and it needs to end up in the chart. I have seen claims fought for months because the emergency room record said a man hurt his back “lifting at home” — not because anyone lied, but because nobody asked and he never said.
While you are there, mention everything that hurts. If your back took the impact but your shoulder and your knee are also sore, say so, and say it before you leave. Body parts that show up in the medical record weeks later get treated by the insurance carrier as if they came from somewhere else, and you end up proving something that should never have been in dispute.
You Pick the Doctor — Not Your Employer
This is the one that surprises people most, and it is the one employers most often get wrong when they tell you otherwise.
In New York, you may treat with any health care provider authorized by the Workers’ Compensation Board. That includes your own doctor, if he or she happens to be Board-authorized. You can look up whether a provider is authorized using the Board’s health care provider search. In an emergency, the authorization requirement does not apply at all — go to the nearest hospital and sort the paperwork out afterward.
There are a few real exceptions, and it is worth knowing which ones actually apply to you rather than taking your employer’s word for it:
- If your employer uses a PPO. Your first treatment has to come from a provider in that network — but only for the first 30 days. After 30 days from your initial treatment, you can go to any authorized provider you like.
- If you are union construction under an ADR agreement. Some collectively bargained alternate dispute resolution programs require you to use providers in that program.
- Diagnostic testing. An insurer can direct where you get an MRI or similar testing done, though not in an emergency and not where there is no reasonable facility near you.
Outside of those, “you have to see our doctor” is not the law. And be clear about one distinction: the doctor the insurance company sends you to for an independent medical examination is not your treating doctor. That examiner is hired by the carrier, writes a report for the carrier, and is not there to treat you. You keep your own physician regardless.
Every one of those exceptions depends on the carrier having given you proper notice, and the notice has rules of its own — a named form for diagnostic testing, fixed distance limits, and a rule that the carrier pays out of network where it never notified you. Those are set out on can the carrier make you use their doctor or pharmacy.
Tell Your Employer Within 30 Days — Put It in Writing
Immediately, but within 30 days, tell your employer or supervisor when, where and how you were hurt. New York law requires written notice within 30 days of the accident, and “I told my foreman” is a much weaker position than a dated piece of paper or an email you still have a copy of.
Keep it simple and factual: the date, the time, where you were, what you were doing, and what hurts. Send it in a way that leaves a record — email works, a text message works, a signed incident report with a copy for you works. Then keep that copy somewhere other than your work locker.
File the C-3 — and Don’t Sit on It
File a claim for compensation by submitting a form C-3 to the workers compensation board. You can file the claim form online. If a lawyer files the paper C-3 for you, you do not have to come in to sign it, because the Board no longer requires an original signature on that form. If you don’t file within two years after the date you were hurt, your claim may be denied. Remember, the weekly compensation rate is never as high as your regular wage.
Understand that the 30-day notice and the two-year filing deadline are two separate requirements. Telling your supervisor does not file your claim, and filing your claim does not substitute for having told your supervisor. You need both. And two years is an outside limit, not a plan — witnesses move on, memories fade, and the longer the gap between the accident and the paperwork, the more room the carrier has to argue the injury came from something else.
When Your Employer Pushes Back
Most of the calls I get in this category involve one of four things being said to a worker who has just been hurt. None of them are reasons to walk away from a claim.
“We don’t have workers’ comp.” You can still be covered. New York maintains an Uninsured Employers Fund precisely for this situation, and an employer who failed to carry required coverage does not get to make that your problem — the fund pays, and the employer answers for it afterward, including substantial penalties. You can check your employer’s coverage yourself using the Board’s employer coverage search, which goes back to 2002. If you believe an employer is operating without insurance, the Board takes reports through Form CE-150-RF.
There is more to this than the fund — an employer who failed to carry coverage also loses the protection that normally stops you suing them. That choice, and its trade-offs, are on our page about an employer with no workers’ comp insurance.
“You’re an independent contractor.” Sometimes that is true. Very often it is not. What the paycheck says, whether you get a 1099, and what you signed when you were hired do not settle the question by themselves. What matters is the actual working relationship — who controls the work, who supplies the tools, who sets the hours, whether you can work for anyone else. Misclassification is common in construction, trucking, delivery and home care, and the Board decides the question, not your employer.
“Don’t file — I’ll take care of you.” Sometimes it is offered kindly and sometimes it isn’t, but it is a bad trade either way. Cash off the books covers this week’s rent. It does not cover the surgery you may need in eight months, it creates no record that the accident ever happened, and the deadlines keep running the entire time you are waiting to see whether your back settles down on its own. If the injury turns out to be serious, you will be trying to prove a claim with nothing in writing.
“If you file, you’re done here.” Your employer cannot discriminate against you for filing a workers’ compensation claim, or for planning to file one, or for testifying in someone else’s. If it happens, you have two years to file a discrimination claim with the Board using Form DC-120, and the Board can order you restored to your job along with the compensation you lost. I will be straight with you about the limit of that protection: an employer can still let someone go for legitimate reasons unconnected to the claim, and those cases turn on the specific facts. But the threat by itself is not lawful, and it is not a reason to stay quiet.
Frequently Asked Questions
Do I have to see the doctor my employer sends me to?
Generally no. You may treat with any provider authorized by the Workers’ Compensation Board. The main exception is a PPO arrangement, which controls only your first 30 days of treatment. Emergency care is not restricted at all.
What if my employer doesn’t have workers’ compensation insurance?
You may still receive benefits. New York’s Uninsured Employers Fund exists to pay awards in cases where the employer failed to carry required coverage, and the employer is then liable to reimburse the fund and faces penalties for the gap.
Can I be fired for filing a workers’ comp claim?
Not for filing the claim. New York prohibits employers from discriminating against a worker for filing, intending to file, or testifying in a workers’ compensation matter, and the Board can order reinstatement plus lost compensation. An employer can still terminate someone for legitimate reasons unrelated to the claim, which is why the specific facts matter.
How a Section 120 complaint actually works — the form, the two-year deadline, what the Board can order and what proves one — is on our page about being fired for filing a workers’ comp claim.
I’m treated as an independent contractor. Can I still file?
Possibly. The label your employer uses is not the deciding factor — the real working relationship is. Workers who receive a 1099 are sometimes found to be employees for workers’ compensation purposes, and that determination belongs to the Board.
I didn’t report my injury right away. Is it too late?
Not necessarily, and it is worth asking rather than assuming. Many injuries build over days before anyone realizes what they are dealing with. Report it now, in writing, and get advice about where the delay leaves you — that is a much better position than waiting longer.
Do I need a lawyer for a workers’ compensation claim?
Not every claim needs one. A straightforward injury that the employer reports promptly and the carrier accepts often moves along without much trouble. It is when a claim is denied, when treatment is refused, when there is a dispute about your wage rate or your degree of disability, or when your employer is telling you something that does not sound right, that representation tends to change the outcome. The consultation is free either way, so finding out costs you nothing. If you already have an attorney and are not happy with how things are going, you are free to change attorneys mid-case.
One question almost everyone asks early, and few get a straight answer to: how long workers’ comp lasts in New York. The answer depends on which kind of award you end up with, and it is worth knowing before you are asked to agree to anything.
Talk to Me About Your Work Injury
If you were hurt on the job and you are not sure what happens next — or your employer is telling you something that doesn’t sit right — call before the deadlines start working against you. There is no charge to find out where you stand.
Contact Frank J. Dito, Jr., an experienced Brooklyn, Staten Island and New York workers compensation attorney at (718) 701-2776 today to discuss your work-related injury and the medical and financial benefits available to you.
And if the employer goes further and denies you ever worked there at all, that is its own fight — see what to do when your employer says you never worked there.
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