A surgeon tells you the shoulder needs a repair, or the back needs a fusion, and you do not want it. Maybe you have seen how the last one went for someone you know. Maybe you are not convinced it will help. Maybe you simply are not ready. And then the question arrives, usually at two in the morning: can they cut off my benefits for saying no?
The short answer is that New York does not force injured workers to have surgery, and the Workers’ Compensation Law contains no provision that penalizes you for declining medical or surgical treatment. What declining does affect is the medical record your case runs on, and that is worth understanding before you say yes or no to anyone.
Nobody can order you into an operating room
Start with what the statute actually says, because this is one of those areas where what people assume and what the law provides are not the same thing.
Workers’ Compensation Law § 13 governs medical treatment in a comp claim. It obligates the employer to furnish treatment. The only refusal it addresses is the employer’s — the provision about a worker paying for care out of pocket applies where the employer “refused or neglected” to provide it. There is no corresponding provision penalizing a claimant who declines care. Section 13-a, which governs the treatment approval process, does not contain one either.
That is not a loophole. It reflects something basic: consent to surgery is yours, and a compensation system does not get to override it.
The two things you actually cannot refuse
Here is where people get confused, and it is an understandable confusion, because the Workers’ Compensation Law does contain refusal penalties. Both of them are about being examined. Neither is about being treated.
A Board-ordered examination. Under § 19, an injured employee claiming or entitled to compensation must submit to such physical examination as the Chair or the Board may require, at a reasonably convenient place. The consequence of refusing is spelled out: proceedings are suspended and no compensation is payable for any period during which the employee refuses to submit to examination.
The carrier’s independent medical examination. Under § 13-a(4)(b), refusal to submit to an IME at such times as may reasonably be necessary in the Board’s opinion bars the claimant from recovering compensation for any period during which he or she has refused.
Read those two together and the pattern is clear. The law compels you to be looked at. It does not compel you to be operated on.
The distinction in one line
Miss the IME and your checks can stop. Decline the surgery and there is no statutory penalty — but the medical record changes, and that is where the real consequences live.
What declining surgery actually changes: MMI
The decision that matters is not punitive. It is about timing, and it runs through a concept called maximum medical improvement.
The Board’s impairment guidelines define it plainly. A finding of MMI rests on a medical judgment that the claimant has recovered from the work injury to the greatest extent that is expected, and that no further improvement in the condition is reasonably expected. The guidelines add that the need for palliative or symptomatic treatment does not preclude a finding of MMI — ongoing pain management does not, by itself, keep you out of permanency.
Surgery is different. As long as a recommended operation is genuinely on the table, a doctor can reasonably say that further improvement is still expected, which means you are not at MMI, which means your permanent disability cannot yet be assessed. Deciding against the surgery can remove that obstacle. For some people that is exactly the point — they want the case valued and finished. For others it arrives sooner than they expected.
The guidelines also set a floor on timing: in cases that do not involve surgery or fractures, MMI cannot be determined prior to six months from the date of injury or disablement, unless the parties agree otherwise.
Permanency is measured on the body you have
Once you are at MMI, a schedule loss of use award is calculated from the medical findings — range of motion, measured deficits, the specific criteria in the guidelines for that body part. The impairment being measured is the one you actually have. If you want to see how a percentage turns into weeks and dollars, our schedule loss of use calculator does the arithmetic.
The guidelines do not provide a method for rating the outcome of an operation you did not undergo, and they do not address declining surgery at all. That silence cuts both ways, and it is worth saying so plainly rather than overstating the point: there is no rule that discounts your award because you turned down a repair, and equally there is no rule that says the subject can never be argued.
What the courts have been firm about is sequence. In Matter of Johnston v Howmet Aerospace Inc. (Third Department, January 30, 2025), the Board had pieced together a 50% schedule loss of use of the arm from range-of-motion measurements taken at earlier examinations. The Third Department reversed and sent it back, holding that a schedule loss of use evaluation should only be performed after the claimant has reached MMI, and faulting the Board for relying on examinations that were not conducted to evaluate permanency and did not sufficiently address whether MMI had been reached. The court also noted the physicians had not taken the three repeat range-of-motion measurements the 2018 guidelines require.
Worth noting for anyone in this position: the claimant in that case had submitted her own affidavit stating that she was at MMI and did not plan to have additional surgery on the shoulder. A claimant’s stated intention about future surgery is part of the record the Board works from.
What the carrier will argue
No statutory penalty does not mean no fight. In our experience the argument comes in one of a few shapes, and none of them is “the law requires surgery.”
- That you are at MMI now. If you are not having the operation, the carrier has every reason to push for permanency, close out the ongoing lost-wage exposure, and convert the claim to an award. Whether that helps or hurts you depends entirely on the numbers.
- That your disability is overstated. The carrier’s examiner may write that with surgery you would return to work, and may treat your decision as evidence that things are not as bad as you say. That is an argument about credibility and degree of disability, not about a legal duty to be operated on.
- That the continuing complaints are not from the accident. Where there is any preexisting condition or intervening event, declining treatment gives the carrier a hook for the argument that what remains is not the work injury.
Each of these is answered with medical evidence, not with an explanation of why you are entitled to refuse. That entitlement is not in dispute. What is in dispute is what your condition is and what it is worth.
The real risk: a file with no decision in it
This is the part that costs people, and it has nothing to do with the law.
The common pattern is not a claimant who refuses surgery on the record. It is a claimant who quietly does not schedule it while the treating doctor keeps writing “surgery recommended” on every report. Month after month those reports say an operation is planned. No report ever says the patient has decided against it. So no report ever says the patient is at MMI — because on paper, further improvement is still expected.
The case then sits. Permanency cannot be reached, the carrier has no reason to move, and the file gives a judge nothing to decide. That is not a penalty for declining surgery. It is the absence of a record that you declined.
If you have decided against an operation, say so to your doctor, in those words, and make sure it lands in the report that goes into your Board file. A decision documented is a case that can move. A decision left unspoken is a case that stalls. This is the same problem that sinks claims in other ways — see why your doctor’s paperwork decides your workers’ comp case.
If you are saying no because the answer was already no
Some people describe themselves as refusing surgery when what actually happened is that the surgery was denied, or approved so slowly that they gave up, or granted in a form no surgeon will act on.
That is a different problem with a different fix, and it should not be recorded as your decision. If a prior authorization request was denied, there is an escalation path and there are deadlines attached to it. If the carrier’s examiner is the obstacle, that usually means depositions and a judge rather than a dead end. See what happens when workers’ comp denies your surgery and when the insurance carrier denies your medical treatment.
Be precise about which one you are. “I decided against it” and “they would not authorize it” produce very different cases.
Declining now, and settling later
Turning down surgery often comes up in the same conversation as settlement, and the two interact in a way that deserves care.
A Section 32 agreement can close out future medical benefits. If it does, and you later change your mind about the operation, the Board no longer has jurisdiction over that treatment and you are paying for it yourself. Declining surgery today is a decision you can revisit. Settling away the medical is generally not.
If an operation is something you might want in two years, that belongs in the settlement conversation before anything is signed, not after.
What to do
- Keep going to the examinations. The IME and any Board-ordered exam are the two appointments with statutory consequences attached. Whatever you decide about treatment, attend those.
- Tell your treating doctor your actual decision, and ask that it be reflected in the report — including whether, in the doctor’s opinion, you have reached maximum medical improvement without the surgery.
- Do not let “surgery recommended” sit on your reports for a year if you have privately decided against it. That gap is what stalls claims.
- Get the permanency evaluation done properly. It has to come after MMI, by a doctor examining for that purpose, using the measurements the guidelines require.
- Ask what the case looks like both ways before you decide, because the value of a claim with surgery and the value of the same claim without it are usually different numbers.
- Raise future medical before you settle, not after.
Frequently asked questions
Can my workers’ comp benefits be stopped if I refuse surgery in New York?
There is no provision in the Workers’ Compensation Law that suspends or bars benefits because a claimant declined medical or surgical treatment. The two refusal penalties in the statute both concern examinations: § 19 for a Board-ordered physical examination and § 13-a(4)(b) for the carrier’s independent medical examination. Declining an operation is not in that category. What can change is the medical evidence about your degree of disability, which is a separate fight.
Do I have to have surgery to get a schedule loss of use award?
No. A schedule loss of use award is calculated from the medical findings at permanency for the injured body part. The Board’s impairment guidelines do not provide a method for rating the result of an operation that did not happen, and they do not address declining surgery.
Does refusing surgery mean I am at maximum medical improvement?
Not automatically, but it often removes the reason you were not. MMI is a medical judgment that you have recovered to the greatest extent expected and that no further improvement is reasonably expected. While a recommended operation is still pending, a doctor can reasonably say more improvement is expected. Once it is off the table, that basis usually goes with it. It has to be the doctor’s opinion, in a report, not an assumption.
Can the insurance company force me to see their doctor even though I declined the surgery?
Yes, and you should go. The independent medical examination is a separate obligation with its own statutory consequence under § 13-a(4)(b). Your treatment decisions do not excuse attendance, and missing the appointment is one of the few things that reliably stops payments.
What if I want the surgery but the carrier will not approve it?
Then you are not refusing anything, and your file should not read as though you were. That is a denial, with an escalation path and deadlines. Make sure the reports show you sought the treatment and it was not authorized, rather than leaving a gap that looks like a choice.
Will refusing surgery reduce the value of my case?
It can change it, in either direction, and not because of any penalty. Permanency may be reached sooner, which can mean an award sooner. A body part that was never repaired may carry a greater measured deficit. Lost-wage benefits may end earlier than they otherwise would have. These are case-specific numbers rather than a general rule, and they are worth running before the decision, not after.
Can I change my mind later and have the surgery?
Generally yes, so long as the claim remains open and the body part is established — the treatment still has to go through the authorization process like any other. The exception that catches people is a settlement that closed out future medical care. Once that is done, the Board no longer has jurisdiction over that treatment.
Should I tell the judge I am refusing surgery?
Talk to your attorney before you characterize it that way. The useful thing for a judge is not the word “refuse” but a clear medical record: what was recommended, what you decided, and whether your doctor considers you at maximum medical improvement without it.
If you are being pushed toward a decision
Whether to have an operation is yours to make, and no one at an insurance company gets a vote. What the decision does to your claim is a separate question, and it is answerable — usually in one phone call, once someone has looked at what your reports actually say. Call 718.701.2776 or 800.310.5520.
This page describes New York law in general terms and reflects the statutes, guidelines and decisions published by the Workers’ Compensation Board. It is not legal advice about your claim, and reading it does not make us your attorneys. It is not medical advice either — whether to have surgery is a conversation for you and your doctor.
