Yes. If you are not happy with the attorney handling your New York workers’ compensation claim, you can change attorneys — and you can do it at almost any point in the case, not just at the beginning.
Most injured workers do not know this. They assume that once they have signed with a firm, they are committed for the life of the claim, or that switching will restart the case, or that they will end up paying two attorneys instead of one. None of that is how it works in New York.
Below is what actually happens when you change representation, when it is worth doing, and when it probably is not.
If you want an honest second opinion on where your claim stands, call 718.701.2776 for a free consultation.
You Do Not Need Your Current Attorney’s Permission
This is the part that surprises people most. Your attorney works for you, and the decision about who represents you belongs to you alone. You do not need your current lawyer to agree, to sign off, or even to be consulted first.
The mechanics are handled by the incoming attorney, and none of it requires you to come into an office to sign. When you retain a new firm, that firm files Form OC-400 — the Notice of Retainer and Appearance or Notice of Substitution and Appearance — with the Workers’ Compensation Board. You sign the section confirming that you have retained them; the new attorney signs and files it, and is required to serve your former attorney with a copy of the substitution notice.
That filing is what changes the representation of record. There is no hearing to request and no permission to obtain.
Your Case Does Not Start Over
Changing attorneys does not reset your claim. Your Workers’ Compensation Board case number stays the same. Prior hearings, decisions, medical evidence, and awards all stay in place. Your established filing dates do not move, and nothing about your claim history is erased.
What does take a little time is the new attorney getting up to speed — reviewing the Board file, the medical record, and any pending issues. That is why timing matters, which is covered further down.
Will You Have to Pay Two Attorney’s Fees?
Generally, no — and this is the single most common reason injured workers stay with representation they are unhappy with.
Workers’ compensation attorney fees in New York are not hourly and are not paid out of pocket. They are contingency-based, and every fee must be approved by the Workers’ Compensation Board. When a case has had more than one attorney, the Board determines what portion of the fee is allocated to the prior attorney out of the total fee awarded. Both the former attorney and the current attorney are given the opportunity to put their respective positions in writing before the Board makes that allocation.
In practical terms: the fee is divided, not duplicated. You are not billed separately by the firm you left. For the full picture of how workers’ comp fees work in New York, see our breakdown of what a workers’ comp lawyer actually costs.
Reasons Injured Workers Change Attorneys
You cannot get anyone on the phone. Not a slow reply once — a pattern. Weeks between updates, unreturned calls, no clear answer about what is happening with your claim. A case can be handled competently and still leave you completely in the dark, and you do not have to accept that.
A different person appears at every hearing. If you meet a new face each time and no one seems to know the history of your file, that is worth questioning. Continuity matters in a case built on medical evidence and prior testimony.
A denial or a disputed IME went unchallenged. If the insurance carrier’s independent medical examiner found you capable of more than you are, or a portion of your claim was denied and nothing was filed in response, ask directly why. There may be a sound strategic reason. There may not be.
You are being pushed toward a settlement you do not understand. A Section 32 settlement closes out your claim, often permanently, including future medical treatment in many cases. If the number arrived without a clear explanation of what you are giving up, that is a reason to get a second look before you sign anything.
No one has explained classification, permanency, or your wage rate. These drive what your claim is actually worth. If the terms have never been walked through with you, you have no way to judge whether the case is being handled well.
The working relationship has broken down. You do not need a dramatic reason. If you have lost confidence in the person handling your claim, that is reason enough.
When Your Treatment Keeps Getting Denied
Repeated denials of medically necessary treatment are one of the most common reasons injured workers lose confidence in their representation — and one of the situations where the difference between an attorney who files paperwork and one who actually litigates shows up most clearly.
Medical treatment requests in New York workers’ compensation are submitted as a Prior Authorization Request through the Board’s OnBoard system, and can move through up to three levels of review:
- Level 1 — the initial request, reviewed by the insurance carrier, which may delegate that review.
- Level 2 — review by the carrier’s own physician.
- Level 3 — review by the Board’s Medical Director’s Office.
If a denial still stands after that process, the next step is requesting a hearing before a Workers’ Compensation Law Judge to contest it formally. That hearing is often where a denial either sticks or gets overturned.
A denial of the claim itself works differently from a denial of a single treatment request, and it runs on its own deadlines. We cover that process separately in what to do when your New York workers’ comp claim is denied.
Two things are worth knowing. First, a carrier or its representative telling your doctor’s office not to bother submitting a request because it “won’t be approved” is not how the process works, and it is not the final word — a request that is never submitted is also a request that can never be appealed. Second, if your treating physician has recommended treatment and the carrier’s own independent medical examiner does not dispute that it is warranted, a denial that goes unchallenged is worth asking your attorney about directly. There may be a sound strategic reason for waiting. If there is not one, that is exactly the kind of inaction that justifies a second opinion.
When Switching May Not Help
An honest answer here is worth more than a pitch, so: changing attorneys is not always the right move.
The problem is the law, not the lawyer. New York workers’ compensation benefits are capped and formula-driven. If your frustration is that the benefit amount feels too low for what you are going through, a new attorney cannot change the statute. A good one should be able to explain clearly why the number is what it is.
You are days away from a hearing or a decision. A new attorney needs time to review the file. Switching immediately before a scheduled hearing can create more disruption than it solves. It is often better to get the second opinion now and make the change deliberately afterward.
The issue is communication and no one has raised it. Sometimes a direct conversation — “I need to know what is happening with my case and when” — fixes the problem. If it does not, you have your answer.
What to Do Before You Make the Change
1. Get a second opinion first. Consultations at most workers’ comp firms, including ours, are free. A second attorney can tell you whether your case is actually off track or simply moving at the pace these cases move.
2. Know where your case stands. Ask your current firm for the status of your claim and what is pending. You are entitled to know what is in your own file.
3. Do not create a gap in representation. Rather than firing your current attorney and then looking for a new one, line up the new firm first and let them file the substitution. That way you are never unrepresented while something is pending before the Board.
4. Keep doing everything else. Keep your medical appointments, keep following your treating physician’s restrictions, and do not miss a hearing. A change in counsel does not pause any of your obligations.
The same questions that are worth asking any workers’ comp attorney apply just as much to a replacement — our guide to vetting a workers’ comp lawyer lays out what to ask and what the answers should sound like. If you are still deciding whether you need representation at all, our guide to when a claim actually needs a lawyer covers that ground.
Can Your Attorney Drop You?
It works in the other direction too, though the attorney has less latitude than you do. Under the Board’s rules, an attorney may withdraw from representing a claimant only after a notice of substitution has been filed, or after filing a withdrawal of representation that is approved by a Workers’ Compensation Law Judge or a conciliator. In other words, your attorney cannot simply stop appearing.
If Your Third-Party Firm Arranged Your Comp Attorney
It is common for a personal injury firm handling a construction case to bring in a workers’ compensation firm it works with regularly. Sometimes a union points a member toward the injury firm in the first place, and the compensation attorney simply arrives with it. You were never required to use the firm your local sent you to, and choosing your own costs you nothing. There is nothing improper about that arrangement, and it is often perfectly good representation. But two things about it are worth knowing.
The compensation attorney is yours to choose. You are not required to use the firm that was brought in, and you did not give up anything by going along with it at the start. A great many injured workers never learn this, because at the point it is arranged they have a broken body and a stack of forms and no reason to think there is a decision being made.
The two cases are separate. Changing your compensation attorney does not affect who handles your third-party lawsuit. Different retainer, different forum, different fee. The compensation fee is set by the Board and comes out of the award either way, so there is no financial reason to stay with a firm you did not pick.
If you are not sure your claim is being handled the way it should be, that is a conversation worth having before the third-party case settles. The compensation lien and the carrier’s credit are decided at that point, and they are difficult to unwind afterwards.
If You Also Have a Third-Party Injury Case
Many construction and workplace injuries generate two cases: the workers’ compensation claim and a separate personal injury action against a party other than your employer — a general contractor or property owner, for example, under New York Labor Law Sections 200, 240, or 241(6).
Those are governed by different rules. Changing counsel on a third-party lawsuit is handled through a consent to change attorney or a court order rather than a Board form, and outgoing counsel may assert a lien against the eventual recovery for the work already performed. If you have both cases running, raise both when you consult with a new firm so nothing is handled in isolation.
Frequently Asked Questions
Do I need my current attorney’s permission to switch?
No. The substitution is filed with the Workers’ Compensation Board by your new attorney, who is required to serve your former attorney with a copy. Your current attorney’s agreement is not required.
Will I pay two attorney’s fees if I change lawyers?
Generally no. Where more than one attorney has worked on a claim, the Board allocates the prior attorney’s share out of the total fee awarded rather than adding a second fee on top.
Will changing attorneys delay my claim?
Your case number, prior decisions, and evidence carry over, so nothing restarts. The main practical consideration is giving new counsel enough time to review the file, which is why switching in the final days before a scheduled hearing is worth thinking through.
Is it too late to change if my case is close to settlement?
Not necessarily, and a settlement offer you do not fully understand is one of the better reasons to get a second opinion. That said, the closer a case is to resolution, the less room there generally is to change its direction — so it is worth acting sooner rather than later.
My treatment keeps getting denied. Is that a reason to change attorneys?
It depends on what your attorney has done about it. A denial that has been carried through the review levels and contested at a hearing is a case being worked. A denial that was simply accepted, with no appeal and no explanation of why, is a different situation — and worth a second opinion.
How many times can I change attorneys?
There is no fixed limit, though repeated changes can complicate the fee allocation and slow the case down. In most situations one well-considered change is all that is needed.
Does a second opinion cost anything?
Not at our office. Reviewing where your claim stands and telling you honestly whether it is being handled properly costs nothing and does not obligate you to switch.
My union sent me to an injury firm and they brought in the comp attorney. Can I change just the comp attorney?
Yes. The two cases are separate, and changing the attorney on your workers’ compensation claim does not change who is handling your third-party lawsuit. You do not need anyone’s permission, and the compensation fee is set by the Board out of the award regardless of which firm does the work.
Get a Second Opinion on Your Workers’ Comp Claim
If you have lost confidence in the way your claim is being handled, finding out where you actually stand costs you nothing. We will review your case, explain what should be happening, and tell you plainly if we think your current representation is doing fine — that answer is free too. Call The Law Offices of Frank J. Dito, Jr. at 718.701.2776 (toll-free: 800.310.5520) for a free consultation. You can call or leave a message any time. If we don’t recover money for you, we don’t get paid.
The Law Offices of Frank J. Dito, Jr. — 1610 Richmond Road, #200, Staten Island, NY 10304
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