There is a form that can lift the cap off a New York workers’ compensation case entirely. It is two pages long. Most of the people who qualify for it never file it, and the reason is almost always the same: they did not know the window had opened, and by the time the checks stopped it had closed.
The form is the C-35.
What it is
Form C-35 is the Extreme Hardship Redetermination Request, filed under Workers’ Compensation Law § 35(3).
If you are classified with a permanent partial disability, your wage benefits run for a capped number of weeks. When those weeks run out, they run out. The C-35 asks the Board to reclassify you to permanent total disability or total industrial disability — and those classifications are not subject to the cap.
That is the whole stake. Not a larger check. A check that does not stop.
Who can file one
Two gates, and both are hard edges rather than arguments.
- Your loss of wage-earning capacity must be greater than 75 percent. That figure comes from your classification. If you do not know yours, it is on the decision that classified you — and it is worth knowing regardless, because it set the number of weeks you were given. More on that on our page about classification and loss of wage-earning capacity.
- Your capped benefits must be expiring within one year — the form puts it as 365 days or less from the date you file.
The window cuts both ways, and that surprises people
Everyone understands that filing too late is fatal. Fewer people know that filing too early is also fatal.
The form says it plainly: applications filed before one year prior to the exhaustion of benefits will be returned and will not be processed. Not held. Not docketed for later. Returned.
So this is a 365-day window that opens years after the decision that classified you, closes when your benefits exhaust, and arrives without a reminder from anyone. The carrier will not tell you it is open. Nothing in the mail announces it.
Which makes one date the most important number in a capped case: the date your weeks run out. Everything about the C-35 is scheduled backward from it.
“Extreme hardship” means more than hardship
This is where applications fail on the merits, and it is worth being straight about.
The Board’s standard is that an extreme hardship is one that exceeds the usual or expected, and the analysis may take account of expected retirement income.
Read that carefully. Every single person whose benefits are about to exhaust is facing hardship — that is what losing your income means. The statute is not asking whether losing the checks will hurt. It is asking whether your situation goes beyond what is ordinarily expected when benefits end. A judge looking at your file will weigh your assets, your household income, your monthly obligations, and what you can expect to have coming in.
What actually goes into the form
This is a financial disclosure, and a thorough one. You are asked for:
- All non-wage household income — workers’ compensation, Social Security, child support, spousal maintenance, anything else coming in.
- Monthly necessary living expenses — rent or mortgage, utilities, telephone, cable and internet, and the rest of what it costs you to live.
- Any other hardship factors particular to your situation.
And then the requirement that sinks the unprepared: you must submit documentation for every expense and every source of income you list. Incomplete applications get delayed while the Board waits for the rest, and delay in a 365-day window is not a neutral event.
You also sign an attestation acknowledging the penalties for fraud. Put down what is true, document it, and do not round anything in your own favor.
What happens after you file
The Board reviews the C-35 for completeness and then schedules a hearing. A law judge weighs the financial picture you documented against the standard above.
If you have never been to one, what happens at your hearing covers the day itself. This particular hearing is unusual in one respect worth preparing for: the subject is your household budget rather than your shoulder.
If this might be you, do this now
- Find your LWEC percentage on your classification decision. Over 75 percent is the gate.
- Work out the date your weeks exhaust, and put it in your calendar along with the date one year before it.
- Start assembling documents early. You cannot file early — but nothing stops you from having twelve months of statements, bills and benefit letters ready the day the window opens.
- Do not wait for the checks to stop. By then it is over.
How the caps work in the first place, and what sets the number of weeks you were given, is on our page about how long workers’ comp lasts in New York.
Talk to a Staten Island workers’ comp attorney
If you are classified at more than 75 percent and your benefits are running out, the year in front of you is the only one you get. That is a conversation worth having early rather than late.
Call (718) 701-2776. The consultation costs nothing, and you will speak with me.
Nothing on this page is legal advice about your own claim. Whether a particular situation amounts to extreme hardship is decided by the Board on the evidence submitted, and Board forms and procedures change.
