“Maximize your benefits” is a phrase every firm uses, but it rarely gets explained. In practice, the dollar value of a workers’ compensation claim isn’t one number handed down by the insurance carrier — it’s the product of several calculations and classifications, each of which can be argued, challenged, or corrected. That’s where an attorney’s involvement actually shows up in the amount you receive.
At The Law Offices of Frank J. Dito, Jr., here’s specifically where we focus to make sure a claim reflects its true value, not just the carrier’s first offer.
Call 718.701.2776 for a free review of your claim.
Getting Your Average Weekly Wage Calculated Correctly
Every weekly benefit check is based on your average weekly wage (AWW) — and this number is calculated wrong more often than most claimants realize.
The figure is built from what you actually earned in the fifty-two weeks before the accident. It is not your base salary, and it is not what the job was supposed to pay over a year. That distinction is where the money is. Overtime, night and shift differentials, holiday pay, commissions, tips, and the reasonable value of employer-provided housing or lodging all belong in the calculation. Your employer reports the earnings on a wage statement, and if the box covering tips or lodging is left blank, those earnings never enter the figure at all.
Three situations produce a wage set too low, and all three are common:
- A second job nobody counted. Where you were working two covered jobs at the time of the injury, the statute requires the wage to be calculated on the earnings from both. It is the most overlooked provision in the section, and it is never picked up automatically — the carrier knows only about the employer it insures.
- A short or interrupted year. If you were hired four months before the accident, or you were out on leave, or you work a trade that shuts down in January, the carrier will often take the earnings you did have and spread them across a full year. The statute does not require that result. Where your own year does not fairly represent the work, the earnings of a comparable worker who did the same job for a full year can be used instead.
- Nobody objected. A figure gets proposed, the window to contest it passes, and it becomes the wage. Much of what is decided in a comp claim is decided because no one contested it in time.
Since every future payment is a percentage of this number, an error here compounds for the life of the claim — the weekly check, any schedule award, and whatever the case eventually settles for. Reviewing and, when necessary, formally challenging the AWW calculation is one of the first things we do.
Pursuing the Right Disability Classification
Not every permanent injury is treated the same way under New York law, and which category yours falls into has a major effect on total value.
A schedule loss of use (SLU) award applies to certain body parts — arms, legs, hands, feet, eyes and ears — and pays a fixed number of weeks tied to the percentage of function permanently lost. Injuries that don’t fit the schedule, including most spine, brain, and psychological injuries, are evaluated instead as non-schedule permanent partial disability, where the award is tied to your loss of wage-earning capacity rather than to a body part. Which track a case goes down turns on the medical evidence and the site of the injury, and the two produce very different numbers.
On the non-schedule side, the percentage does more than set the weekly rate. It sets a hard ceiling on how long benefits can run. The statute converts loss of wage-earning capacity directly into a maximum number of weeks:
- 15% or less — 225 weeks
- over 15% to 30% — 250 weeks
- over 30% to 40% — 275 weeks
- over 40% to 50% — 300 weeks
- over 50% to 60% — 350 weeks
- over 60% to 70% — 375 weeks
- over 70% to 75% — 400 weeks
- over 75% to 80% — 425 weeks
- over 80% to 85% — 450 weeks
- over 85% to 90% — 475 weeks
- over 90% to 95% — 500 weeks
- over 95% — 525 weeks
Read that table next to your own case and the stakes become concrete. A finding of 45 percent caps the claim at 300 weeks. A finding of 55 percent caps it at 350. Fifty weeks of benefits turn on ten percentage points of a finding that is argued, not assumed — and because every one of those weeks is paid at a rate built on your average weekly wage, an error in the wage and an error in the classification multiply against each other.
On the schedule side, an award that has already been made is not always the last word. If the joint continues to deteriorate, a schedule award can be reopened and increased.
Challenging a Low-Ball Independent Medical Exam
Insurance carriers frequently send claimants to an independent medical examination (IME) with a doctor who has a track record of minimizing disability findings. An IME report that understates your impairment directly reduces your award.
The report is evidence, not a ruling. It can be answered with your treating physician’s findings, with additional medical proof, and — where enough turns on it — by cross-examining the IME doctor at a hearing about the distance between what the report concludes and what the recorded examination could actually support. An exam that lasted a few minutes, or a report whose conclusions outrun its own findings, is a document with problems in it.
What costs claimants money is not the IME. It is an IME left standing unanswered, which is one of the most common ways unrepresented claimants lose value in a claim.
There is a related judgment call that comes up constantly. When the carrier’s doctor and your doctor are far apart, there are times we will agree to a rate lower than your own doctor supports rather than litigate for the higher one — because a finding the carrier appeals pays nothing at all while the appeal is pending, and that can mean a year or more without a check.
Structuring a Section 32 Settlement Correctly
If your case moves toward a lump sum settlement, how that settlement is allocated matters as much as the total number. A full settlement needs to properly account for future medical costs and, where applicable, Medicare Set-Aside requirements — getting this wrong can mean a settlement that looks large on paper but falls short of what you’ll actually need down the line.
Two questions decide whether a number is actually a good number. First, what is being given up: a settlement that closes out medical treatment as well as indemnity is a different transaction from one that leaves medical open, and on a claim involving hardware, injections, or a likely future surgery, the medical side can be worth more than the cash. Second, what the same claim would pay if it simply ran its course — the weeks remaining under the classification ceiling, multiplied by the rate. A lump sum is worth evaluating against that figure, not against nothing.
The attorney’s fee in a Section 32 comes out of the settlement and is generally fifteen percent of the benefits to be paid, excluding anything allocated to a Medicare Set-Aside. For a full breakdown of how these settlements work, see our guide to Section 32 lump sum settlements.
Identifying Compensation You Might Not Know to Ask For
Beyond wage replacement, several categories of value sit outside the weekly check and are rarely volunteered:
- Travel and mileage. The trips to treatment and to the carrier’s own IME are reimbursable on Form C-257. Over a long claim with regular therapy, this adds up, and almost nobody files for it.
- Vocational rehabilitation if the injury keeps you out of your prior role.
- A separate third-party case. Where someone other than your employer — a contractor, a property owner, an equipment manufacturer, another driver — contributed to the accident, there may be a personal injury claim alongside the comp claim. How the two interact, and what the carrier can recover out of the recovery, is covered in our page on third-party cases and the comp lien.
- Penalties against the carrier for late payment or unreasonable delay. These are real and they are in the statute, though who actually receives the money depends on which penalty applies.
None of these are flagged by the insurance carrier, since raising them works against the carrier’s interest, not yours.
Avoiding the Mistakes That Quietly Reduce a Claim’s Value
A few common missteps shrink a claim before an attorney is ever involved.
Late notice to the employer. The statute calls for written notice within thirty days of the accident. Missing it is serious but it is not automatically fatal: the Board can excuse late notice where it could not reasonably have been given, where the employer already knew about the accident, or where the employer was not prejudiced by the delay. The objection can also be waived — the employer and carrier are treated as having waived it unless they raise it at the first hearing at which you testify. That is worth knowing, because claimants often assume a missed deadline has ended the case and stop pursuing it.
Gaps in treatment. Carriers use stretches without medical care to argue the injury wasn’t serious, or that whatever was wrong has resolved. Gaps often have ordinary explanations — an authorization that never came through, a provider who dropped the case, a job that made appointments impossible — but the explanation only helps if it is in the record.
Inconsistent accounts of the accident. The description you give the emergency room, the one on the employer’s report, and the one in your own filing all end up in the same file. Differences between them become the carrier’s argument that the accident did not happen the way you say it did.
Missing the filing deadline itself. Notice to the employer and filing the claim are two different requirements with two different clocks. The claim generally has to be filed within two years.
None of these are usually fatal on their own. Each one gives the carrier an argument to pay less.
Frequently Asked Questions
How much more can an attorney actually get me?
It depends entirely on your specific case — your wage history, the nature of your injury, and whether any of the issues above apply. What we can tell you in a free consultation is whether we see obvious value being left on the table in your specific claim.
Does hiring an attorney change my medical treatment?
No — your medical treatment is directed by your treating providers, not your attorney. What an attorney affects is how your claim is valued, documented, and defended, not your care itself.
What if my average weekly wage was already calculated correctly?
Then that’s one less issue to address — but the other value drivers above (disability classification, IME challenges, settlement structuring) are worth reviewing independently, since AWW is only one of several factors.
Is it too late to challenge an old IME report or classification?
Often not. Depending on where your case stands, there may still be an opportunity to introduce additional medical evidence, request a hearing, or raise the issue at the next appearance. It is worth having someone look at where the file actually stands rather than assuming the question is closed.
My payments stopped and nothing about my condition changed. Does that affect value?
It can, because time without benefits is money out of the claim, and the reason for the stoppage is often procedural rather than medical. We cover the usual causes in why workers’ comp payments stop when nothing has changed.
What actually happens at a hearing?
Most of the decisions described on this page get made at hearings, and they move quickly. Our page on what happens at your workers’ comp hearing walks through the sequence.
Can I switch attorneys if I think my claim is being undervalued?
Yes. You can change attorneys mid-case without restarting the claim or losing what has already been decided.
Get a Free Review of Your Claim’s Value
If you’re not confident your claim is being valued correctly, it’s worth a second look before it’s finalized. 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.
