Your doctor says you are seventy-five percent disabled. The carrier’s examiner says zero. At the hearing, the judge will take one of those positions, or something between them — unless the parties agree on a rate first.
There are cases where I will recommend agreeing to a number lower than what your own doctor supports. Clients are often surprised by that, and they deserve to be told plainly why, because it has nothing to do with giving up.
What the rate actually is
Your weekly benefit is two-thirds of your average weekly wage, adjusted by your degree of disability, subject to the statutory maximum. The percentage is not an abstraction. It is the multiplier on your check.
The Board’s own example: an average weekly wage of $900 at fifty percent disability pays $300 a week. Two-thirds of $900 is $600; $600 at fifty percent is $300.
Run the same wage at seventy-five percent and the weekly benefit is $450. Run it at the carrier’s zero and it is nothing at all. That is the distance between the two positions in an ordinary case.
The fork in the road at the hearing
When the medical opinions conflict, the hearing can end two ways.
The parties agree on a rate. The judge issues a decision directing that payments continue at the agreed rate. Money starts. Nobody appeals a decision they consented to, so the payments keep arriving while the rest of the case develops.
The judge decides it. The judge weighs the reports, perhaps hears testimony, and makes a finding. If it goes your way, you have won the rate — and the carrier has thirty days to file an application for Board review under Workers’ Compensation Law § 23.
Why winning can mean nothing arrives
This is what decides the strategy, and the Board states it without qualification in its own fact sheet for injured workers:
“If the appeal concerns payments, you will not be paid unless or until a Board panel directs payment.”
Not reduced. Not paid at the carrier’s number instead. Not paid.
So a favorable decision at the hearing is not the same thing as money. The carrier files, and the benefits stop while the Board reviews the case. In my experience that wait commonly runs twelve to fourteen months from the date of the decision.
There is usually nothing left flowing underneath
People assume that if the fight is over how much, the undisputed part keeps coming. Sometimes it does. Where a carrier has accepted a particular period or portion of lost wage benefits, it has to pay that much while the appeal runs.
But look again at the ordinary case. The carrier’s examiner did not say fifty percent. He said zero. When the carrier’s position is that you have no compensable degree of disability at all, there is no conceded portion, nothing it has agreed to pay, and nothing that continues.
That is the situation to plan around: a year or more at nothing, not a year or more at a reduced rate.
What an agreed rate produces instead
Set the two outcomes next to each other on the same $900 wage.
Agree at fifty percent. The judge directs payments to continue. You receive $300 a week, starting now, every week, while the case moves on to whatever comes next.
Litigate and win at seventy-five percent. On paper you are owed $450 a week. The carrier appeals. You receive nothing for roughly a year, and then, if the Board panel affirms, the retroactive benefits arrive in one payment.
The second number is larger. The first number is the one that pays a mortgage in March. Most people out of work with an injury cannot finance a year of litigation out of savings in order to win a rate differential, and there is nothing unsophisticated about that.
The exposure ends once a panel rules
The risk belongs to one stage of the process.
Once a Board panel issues a decision awarding lost wage benefits, the carrier must pay those benefits and the related medical bills even if it appeals further to the Full Board or to the Appellate Division. The dangerous gap is the one between the judge’s decision and the panel’s decision.
Worth knowing, because it means the downside is bounded rather than endless. It is also the longest single stretch in the process.
When I would fight it anyway
Agreeing is not a default. It is one option, and these push the other way:
- The gap is wide. Zero against seventy-five percent is a different proposition from two adjacent findings.
- The medical proof is strong and the examination was thin. A well-documented treating opinion against a brief consultative report changes the odds on review.
- You can absorb the gap. Other household income, disability coverage, savings, a spouse working.
- The disputed period is short. If the window is a few weeks, appeal risk matters less.
- The finding will echo later. What is found now can shape classification. A number agreed to cheaply today is sometimes quoted back to you at permanency.
That last one is why this is judgment rather than arithmetic. Cash flow now and case value later do not always point the same way.
It is your decision, not mine
My job is to tell you what each path is likely to produce and when. The choice between money now at a lower rate and more money later at the risk of nothing in between belongs to the person who has to pay the bills in the meantime.
What I will not do is let that choice get made without explaining it. A client who agrees to a rate without understanding what was given up has been badly served. So has a client who insists on fighting without being told what the next twelve months may look like.
Related reading: what happens at your hearing, denied claims and appeals, and whether the carrier is ever penalized for delay.
Talk to a Staten Island workers’ comp attorney
If you have a hearing coming up and the medical opinions do not agree, that conversation belongs before the hearing, not during it.
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. What makes sense in a particular case depends on the medical record, the amounts in dispute, and your circumstances.
