There is a deadline in New York workers’ compensation that ends cases outright, and there are exceptions to it that a lot of injured workers never hear about. Both halves of that sentence matter.

If you are reading this because you think you may be out of time, do not assume you are. And if you are reading it because you have time, do not spend it.

The two-year rule

Workers’ Compensation Law § 28 provides that the right to claim compensation is barred unless a claim is filed within two years after the accident. Where the injury causes death, the two years runs from the date of death.

That is the whole rule, and it is unforgiving on its face. Two years from the accident, not from when you stopped working, not from when the pain got bad enough to do something about, not from when the carrier stopped paying. From the accident.

The claim is filed with the Board. Telling your supervisor is not filing a claim. Going to the emergency room is not filing a claim. Having your employer send something to its insurance company is not filing a claim by you.

The thirty-day notice is a different thing

People collapse these two into one requirement constantly, and they are not the same.

Section 18 requires written notice of the injury to your employer within thirty days of the accident, stating in ordinary language the time, place, nature and cause of the injury. That is notice to the employer. Section 28 is the filing of the claim with the Board within two years. Two separate obligations, two separate clocks.

The thirty-day notice is the more forgiving of the two. The Board may excuse the absence of notice where notice could not have been given for sufficient reason, where the employer or its agents had knowledge of the accident, or where the employer has not been prejudiced by the failure. In practice, an employer who knew perfectly well what happened — because it happened in front of a supervisor, or because the company filed its own report — is in a poor position to complain that nobody told it.

There is also a procedural trap for the employer here, and it is worth knowing about. The employer forfeits the notice objection unless it raises the failure before the Board at the first hearing on the claim at which all parties in interest are present or represented and the claimant testifies.

Occupational disease runs on a different clock

An accident happens on a date. A disease built up over years of work does not, and the statute handles it separately.

For occupational disease the two years runs from disablement and from when the claimant knew or should have known that the disease was due to the nature of the employment. Both conditions. The clock does not start simply because your shoulder began hurting; it starts when you became disabled and had reason to connect the condition to the work.

That distinction does real work in repetitive strain cases, hearing loss, and respiratory conditions, where the worker often has symptoms for a long time before anyone tells them the job caused it. If you have been told you are too late on an occupational disease claim, that conclusion deserves a second look at when your clock actually started.

The exception most people have never heard of

This is the part of the page worth the read.

Section 28 says that no case in which an advance payment has been made to the employee, or to dependents in a death case, is barred by the failure to file a claim in time.

An advance payment of compensation is not just a check from the insurance carrier. It takes the forms you would expect it to take: the employer paying medical bills for the injury, lost wage payments, or keeping you on at the same pay while giving you light duty or shorter hours because of the injury.

Sit with what that means. A worker who got hurt, was moved to lighter work at the same money for a few months, never filed anything because it seemed handled, and shows up three years later when the shoulder gives out may not be barred at all. The accommodation itself can be what saves the claim.

So the question is never only whether two years have run. It is also what happened in those two years, and who paid for what.

The carrier has to object, and has to object early

There is a second exception, and it is procedural.

Under § 28 the employer and carrier are deemed to have waived the bar of the statute unless the objection to the late filing is raised at the first hearing on the claim at which all parties in interest are present.

That is a real deadline running against the other side. A carrier that sits on the defense, litigates the claim on the merits for a year and then tries to raise timeliness has a problem. Whether that happened is one of the first things worth checking in a case where lateness is being asserted.

None of which is a reason to wait

Everything above describes ways a late claim may survive. It would be a poor reading of this page to treat any of them as a plan.

Each exception has to be established. You have to prove the advance payment happened and what it was for. You have to establish when you knew or should have known about the occupational disease. Every one of them turns a claim that should have been routine into something contested, argued at hearings, with the outcome uncertain and the benefits not flowing in the meantime.

Evidence also decays. Witnesses leave. Supervisors move on. The records that would have shown who paid the medical bills in 2024 get harder to obtain every year. The exceptions exist for people who did not know, not as an alternative route for people who did.

Frequently asked questions

It has been more than two years. Is it over?

Not necessarily, and this is worth an actual conversation rather than an assumption. The questions are whether anyone made an advance payment, whether your employer kept you at full pay on lighter duty, whether medical bills were covered, whether this is an occupational disease with a later start date, and whether the carrier raised the objection when it had to. Several of those are things you may not know the answer to without looking at the file.

I told my boss the day it happened. Does that count as filing?

It goes to the thirty-day notice under § 18, and it helps there. It is not the filing of a claim under § 28. Those are different obligations and satisfying one does not satisfy the other.

My employer said they would take care of it.

That happens often and it is sometimes said in good faith. It is still not your claim being filed. The one silver lining is that if the employer did take care of something — paid the bills, kept the wages going — that conduct may itself be the advance payment that keeps the claim alive.

I never missed a day of work. Do I still need to file?

Worth considering, yes. An injury that seems minor and resolves can come back years later, and by then the two years may have run on a claim you never opened. Filing preserves the right; it does not obligate you to pursue anything.

Does the two years apply to my lawsuit too?

No. If someone other than your employer contributed to the accident, that case runs on the civil deadline for the underlying claim, which is a separate timeline and a shorter one where a municipality is involved. See our page on third-party cases and the compensation lien.

What should I bring if I think I am late?

Anything showing what was paid and by whom: medical bills and explanations of benefits, pay stubs from the period after the injury, any written record of a light duty assignment, and any correspondence with the employer or its carrier. That paper is where the exceptions live.

Talk to us

If you are worried about the deadline, the call should happen now rather than after more of it runs. If you are already past two years, it is still worth finding out what happened in the meantime, because the answer decides whether there is a claim.

Consultations are free. In a workers’ compensation case there is nothing to pay up front — the fee is applied for and approved by the Workers’ Compensation Board out of the award.

The information on this page is general and is not legal advice. Reading it does not create an attorney-client relationship.

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