The carrier filed a controversy. Your checks have not started, the hearing is weeks or months out, and the rent is due on the first. This is the part of a disputed claim nobody warns you about: not the legal fight, the gap.
There is a provision in the law written for exactly this gap, and in my experience most injured workers never hear about it until it is too late to use.
Section 206(2): you get paid in the first instance
New York has a second, separate benefit system sitting alongside workers’ compensation: the Disability and Paid Family Leave Benefits Law, Article 9 of the Workers’ Compensation Law.
Read what it is for, because it sounds like the wrong form. Article 9 provides weekly cash benefits to replace, in part, wages lost due to injuries or illnesses that do not arise out of or in the course of employment. It is the off-the-job system. The claim form, the DB-450, is written for the worker who hurt his back moving furniture at home on a Saturday — not for the worker hurt on a job site.
So the obvious objection is: why would I file that, when my whole case is that I was hurt at work?
But Section 206(2) addresses the situation where the two systems collide. Where an employee has claimed workers’ compensation and “such claim is controverted on the ground that the employee’s disability was not caused by an accident that arose out of and in the course of his employment or by an occupational disease,” the statute says the employee “shall be entitled in the first instance to receive benefits under this article for his or her disability.”
In plain terms: when the carrier’s defense is that your injury is not work related, the off-the-job system pays you while that question gets sorted out. You do not have to wait for the comp case to be decided first.
That is the answer to the objection. The Legislature knew the two systems would collide in exactly this situation and wrote the bridge into the statute. Filing a DB-450 while your comp claim is being fought is not you conceding the carrier’s position. It is you using the provision that exists because the carrier took that position.
What it actually pays, which is not much
I would rather you hear the number from me than be disappointed by it later. Disability benefits pay 50% of your average weekly wage for the last eight weeks worked, capped at $170 a week. That cap has not moved in decades. For most people it is a fraction of what the comp rate would be.
Three other limits worth knowing before you count on it:
- There is a seven-day waiting period. Benefits start on the eighth consecutive day of disability.
- You can draw a maximum of 26 weeks in any 52 consecutive weeks.
- It pays cash only. Your medical treatment is not covered by the disability carrier the way it would be under an established comp claim.
So this is not a substitute for winning your comp case. It is a bridge across the months while you fight it, and $170 a week is the difference between falling behind and falling apart.
You do not keep both
This is the part people misunderstand, and it is better understood going in than discovered at the award.
If you are later awarded workers’ compensation for the same period, whoever paid your disability benefits can come back for the money. Section 206(2) lets the employer, carrier or chair who made those payments file a claim for reimbursement with the Board at any time before the comp award is made, and gives them “a lien against the award for reimbursement.”
That is not a punishment and it is not a reason to skip it. It means the disability payments were an advance against a comp award you had not received yet. You are made whole either way — you are just made whole on time instead of eight months late.
How to file, and the deadline that ends this
The form is a DB-450, Notice and Proof of Claim for Disability Benefits — the Article 9 form, the one written for injuries and illnesses that do not arise out of or in the course of employment. Expect it to feel like the wrong form in your hands. It is the right one for this situation, for the reason set out above. The Board’s instruction on timing is blunt: file it within 30 days after you become disabled.
Thirty days is short, and it runs from the disability — not from the day the carrier controverted your claim, which is often well past it. This is the single most common way the option disappears. If you are out of work and your claim is being fought, file the DB-450 now and sort out the rest afterward.
Your employer should be able to tell you who their disability carrier is. It is frequently not the same company as the comp carrier.
One thing not to do in the same weeks
Do not try to stack unemployment on top of this. Section 206(1)(b) says no disability benefits are payable “with respect to any week for which payments are received under the unemployment insurance law.” They are alternatives, not a package, and the two agencies do talk to each other.
Whether unemployment is the better choice in your situation is a real question with a real answer, and it depends on what your doctor says about your ability to work. That is worth reading separately before you certify anything.
Paid Family Leave is not this
People reach for Paid Family Leave here and it does not fit. PFL covers time taken to care for a family member with a serious health condition, to bond with a new child, or for a military family need. It does not cover your own injury. If you are the one who is hurt, the disability side of Article 9 is the one that applies to you.
Frequently asked questions
My claim was controverted for a different reason. Does this still work?
Section 206(2) is written around a controversy on the ground that the disability was not work related. That is the most common defense, but it is not the only one carriers raise. If yours was controverted on some other basis — late notice, no coverage, a dispute about whether you were an employee — the answer is less automatic and worth a phone call rather than a guess.
I already missed the 30 days. Is there anything left?
File anyway and say why it was late. A late claim is weaker than a timely one, not automatically dead, and there is no benefit to leaving it unfiled. In the meantime the real work is on the comp side — getting the controversy resolved is what actually fixes your income.
Will filing for disability benefits hurt my comp case?
It should not, and this is the worry worth answering head on. Article 9 benefits are for injuries and illnesses that do not arise out of or in the course of employment, so filing the DB-450 can feel like signing a statement that you were not hurt at work. It is not. Section 206(2) contemplates this exact filing by a worker whose comp claim is pending and controverted, which is why the same subdivision goes on to describe reimbursement out of a later comp award — an award that only exists if the injury was work related.
What does matter is that the DB-450 is accurate. Describe the injury the way you have described it everywhere else. Do not write anything on that form suggesting the injury happened off the job in order to make the claim go through more smoothly — that is the thing that would genuinely damage your comp case, and it is the reason to have someone look at the form before it goes in.
My employer says they do not carry disability insurance.
Most employers in New York are required to. If yours genuinely has no coverage, that is a problem for them rather than the end of the road for you, and it is worth telling us — an employer without disability coverage is often an employer with other coverage problems too.
How long will the comp fight take?
Longer than you want. That is the honest answer, and it is the reason this page exists. What happens when a claim is denied walks through the steps.
If your claim is being fought
Call the office at 718.701.2776, or toll free at 800.310.5520. The consultation costs nothing, and if we take the case there is no fee unless we recover for you.
This page describes New York law in general terms. It is not legal advice about your claim, and reading it does not make us your attorneys.
Talk to a New York workers’ compensation attorney
The Law Offices of Frank J. Dito, Jr. handles workers’ compensation claims from the office on Staten Island, for injured workers throughout the five boroughs and across New York State.
Call 718.701.2776 or 800.310.5520. If we don’t recover money for you, we don’t get paid.
