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What Happens if You Can’t Return to Work After a Work Injury?

An experienced workers’ compensation attorney can help you move forward

Many work injuries heal in time, and the injured worker can return to their job without long-term issues or impairment. However, some injured workers are not so fortunate. If you have an injury that prevents you from ever returning to your job, what can you do?

The workers’ compensation system in New York provides benefits for employees who are permanently disabled due to work injuries. However, because there is a great deal of money at stake in a permanent disability claim, you can expect the insurance company to dispute or downplay your benefits. That’s why you need a workers’ compensation lawyer who knows New York law and can advocate for your rights throughout the process.

How permanent disability is determined in New York

When you are injured on the job and your injury prevents you from working, you will enter a period of temporary disability. (Note that all disabilities start out “temporary” even if the injury is expected to be permanent.) There are two types of temporary disability benefits in the New York workers’ compensation system:

  • If you are totally unable to work, you qualify for temporary total disability benefits, which pay two-thirds of your pre-injury average weekly wage, subject to a state maximum and minimum.
  • If you are able to work in a reduced capacity for reduced income, then temporary partial disability benefits will pay two-thirds of the difference between your pre-injury and post-injury wages.

Temporary disability benefits continue until you have reached maximum medical improvement (MMI). This is the point at which your injuries have stabilized and further improvement is medically unlikely – in other words, your condition is as good as it’s likely to get. At that point, your doctor can assess the extent of your permanent disability, and your workers’ compensation claim transitions to permanent disability benefits.

There is no specific timeline for maximum medical improvement; it depends on the type of injury and the nature of your medical treatment. Typically, determining MMI takes at least six months from the date of injury, but the timeline can be significantly longer in some cases.

What happens if you can’t return to work at all

If, even after reaching maximum medical improvement, you are completely unable to work in any job, even with reasonable accommodations, then you are considered permanently, totally disabled. Under New York law, there are a few types of injuries that automatically constitute total disability unless the insurance company can prove otherwise:

  • Loss of both arms
  • Loss of both hands
  • Loss of both legs
  • Loss of both feet
  • Loss of both eyes
  • Loss of any two of the above

Other types of injuries can also result in a finding of permanent total disability, depending on the facts and circumstances. Note that the criteria to qualify for permanent total disability for workers’ compensation purposes are not necessarily the same as the criteria to qualify for other disability benefits, such as Social Security Disability, veteran’s benefits, or private disability insurance.

If you do qualify for permanent total disability, then you will receive two-thirds of your pre-injury average weekly wage indefinitely. There is no limit on the number of weeks of compensation you can receive. Under some circumstances, you may also be allowed to engage in some business or employment, as long as your wages plus the weekly workers’ compensation benefits are still below the legal maximum.

What happens if you can still work, but not at the same job

Again, you can qualify for permanent total disability if you have lost your ability to work at any job. If your injury is such that you can’t return to your pre-injury job, but you could still do other types of jobs, then you can qualify for two types of benefits.

First, you can qualify for some type of permanent partial disability benefits, depending on the location and nature of your injury. If your injury is a scheduled loss – that is, an injury to the arm, leg, hand, foot, eye, or ear – then you can receive schedule loss of use (SLU) benefits, which are based on the body part(s) injured and the extent of disability. If you have a disabling injury to another part of the body, you can qualify for non-schedule loss of use benefits, which are based on the overall effect of the injury on your earning capacity. For more information, read our article on partial disability.

Second, you may be able to access vocational rehabilitation services to help you obtain job training and find work that you can still do with your permanent partial disability. The Workers’ Compensation Board employs Vocational Rehabilitation Counselors (VRC) who work to connect injured workers with employment and training services, resource centers, job search workshops, and other services designed to get you back into the job market. They can also provide referrals to other state agencies.

What happens if you can go back to your pre-injury job, but need accommodations

Under some circumstances, injured workers can still return to their pre-injury jobs, but with some physical limitations. You may need alternate duties or reasonable accommodations at work in order to account for your medical restrictions. As long as you can still perform the core duties of the job and accommodations are not an undue hardship, your employer has to accommodate you. Moreover, you are legally protected from retaliation for requesting accommodations or for filing a workers’ compensation claim in the first place.

Returning to work with accommodations can be a difficult and complex process. An experienced workers’ compensation lawyer can advocate for your rights throughout that process and help you navigate your recovery to get you back to work when you are ready – and just as importantly, a lawyer can also ensure you aren’t pressured to return to work before you are ready or to forego the reasonable accommodations you need to protect your health.

Talk to an experienced workers’ compensation attorney about your rights

It’s always important to get legal advice after an on-the-job injury, but that is particularly true if you believe your injury will affect your ability to return to your job. Unfortunately, some employers and workers’ comp insurance companies put profits ahead of people, and injured workers take the brunt of those misplaced priorities. You don’t have to deal with this alone. The right lawyer will make all the difference.

Your attorney’s job is to be your advocate throughout the process, making sure that you receive the benefits you deserve and that you only return to work when you are medically prepared to do so – and with the right accommodations for your disability. If you can’t return to work at all, an attorney can likewise advocate for the maximum benefits you need and deserve to maintain your quality of life.

If you’ve been hurt on the job in New York and believe you won’t be able to return to work, get legal advice right away. Contact the experienced workers’ compensation attorneys at Pasternack Tilker Ziegler Walsh Stanton & Romano LLP for a free consultation. There’s no cost and no obligation to hire us, just answers.

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