Assaults at Work II

In a previous post, the issue of Compensation for assaults by a co-worker was addressed. The question was asked if an assault by a co-worker was covered by Worker’s Compensation. The answer was Compensation would cover a claim arising out of an assault that occurred on the job. A second issue that may arise in this case is the right of an employee to directly sue a co-employee for assault.

Generally, employees may sue not their co-worker’s for negligence. If your co-worker’s negligence causes you to sustain injuries on the job, then your exclusive remedy is Compensation benefits. However, if that co-worker punches you, then you can also sue that co-worker for assault.  Unlike Compensation claims, in a suit for assault, the injured employee can obtain an award for pain and suffering.

Sometimes, direct suits against co-workers do not work out. Sometimes, employees may not be able to identify the assailant.  Sometimes, law suits against co-workers result in judgments that can never be collected because the assailant is insolvent.

But the injured worker can still elect to sue the assailant and can have a judgment against that person in the event the assailant ever becomes solvent in the future.

Reimbursement of Travel and Medical Expense

“I was hurt in an accident on the job last year. Can I get reimbursed for my trips to my doctor’s office?”

Yes, you can be reimbursed for your travel expenses. In order to get reimbursed, you should submit a C-257 form to the compensation carrier and the Compensation Board. (You can download the form directly from the Board’s websit by clicking on this sentence .) If you were our client, we could assist you with this process.

You are entitled to reimbursement for attending your doctor’s appointments and other treatments you receive, such as physical therapy appointments, and traveling for diagnostic testing such as an MRI, but you do not receive reimbursement for traveling to and from your pharmacy or attending hearings at the Workers’ Compensation Board.

If you drive yourself, or a friend or relative drives you to your appointment, your travel expenses are reimbursable at the approved rate per mile.  The Carrier’s will use google maps (or a similar search engine) to determine mileage bewteen your home and your doctor’s office. You can print out the results yourself and submit the mileagle along with the form. The rate you are paid at varies year to year.  This year the rate is 56 cents per mile. By clicking on this sentence you can see the reimbursement rates over several years.

If you travel to a hospital, hospital parking is reimbursed provided you obtain a receipt. If you take public transportation, you can be reimbursed provided you obtain receipts. The MTA now offers digital receipts (even if you are taking access-a-ride) which you can use to get reimbursed.

However, using services such as Uber is not generally allowed as a reimbursable expense. First, you need a doctor’s note stating that your medications prevent you from driving and, medically, public transportation is too far away and would require too many transfers or too much time for your condition. Second, you must prove that you have no access to a motor vehicle.

You can also submit medical expenses (with receipts) that are not paid directly by the carrier. Prescription medications, over the counter medications (which your doctor recommends with a note), and bandages, crutches, canes (which your doctor recommends with a note) should be reimbursed by the carrier.



Worker’s Compensation Settlements

“How much money should I expect from a Worker’s Compensation settlement?”

The best answer to the question is to explain the factors the Compensation Board uses when it approves settlements.

First, the wage that an injured worker was making at the time of his/her accident is a factor in determining settlement value.  The more money the injured worker was making, the better settlement the injured claimant can expect.

Second, both the treating doctor and the doctor representing the insurance company have to write reports commenting on the disability for the parts of the injured worker’s body.  The more each doctor believes an injured worker has permanent damage, the higher the settlement.

Third, an injured worker has to look at the part or parts of his/her body that are injured. There is actually a formula in the Worker’s Compensation Law that states, given a permanent injury to certain body part or parts, the injured worker would be entitled to a certain number of weeks of compensation benefits. There are other body parts, like the back, that don’t have a formula per se for settlements, but there are different ways to classify a worker’s disability for injuries to those body parts.

Based on these three factors, an injured worker can assess the amount of a settlement in a Compensation case.

Worker’s Compensation and Sick Time

“Should I lose my sick time if I get hurt on the job?”

If you are hurt on the job and you miss more than one week of work, then you are eligible to collect Worker’s Compensation lost wage benefits.

Compensation lost wage benefits pay workers at most two-thirds of the average (average is computed over the year preceding the accident) weekly pay and that two-thirds of the average may not exceed $934.11 (current rate) per week.

So if your employer uses your sick time while you are out out of work because of an on-the-job accident, then you are entitled to be reimbursed for that sick time at the compensation rate. For example, if your average salary was $900 per week, then your compensation rate is $600 per week. Thus, if your employer used up 15 of your sick days while you are out on Worker’s Compensation, then you would only be reimbursed 10 days by Compensation because the Worker’s Compensation carrier would only reimburse your employer for two-thirds of the value of the sick days. Hence, you would get back 10 of the 15 sick days you had with with your employer.

Worker’s Compensation Discrimination Claims

“Can I be fired for making a Worker’s Compensation Claim?”

The short answer is no.  But there are many practical problems making a claim against an employer who may fire an employee for filing a Worker’s Compensation Claim.

First, the burden of proof is on the employee (not the employer) to prove discrimination. (In Worker’s Compensation, the employer has the burden to show the employee is NOT covered by Worker’s Compensation.) This is a significant problem, because the employee would need to show some kind of evidence demonstrating discrimination.

Second, employers are not required to keep a position open for an employee who is out on a Worker’s Compensation Claim. If you work for a small businesses, then you may not covered by the federal Family and Medical Leave Act (FMLA). If you work for a larger business you are probably covered by FMLA which means that your employer cannot fire you for being absent due to a serious health condition which keeps you from working 12 weeks out of a 12 month period.

Third, if you work for a large business and you are out more than 12 weeks, then the employer does not have to keep your position open. The only exception would be if the employee is covered under a union contract which protects the employee’s job beyond 12 weeks.

All discrimination claims should be made within 2 years from the date of discrimination with the Worker’s Compensation Board.