Workers' Compensation FAQ

Are you considering a workers' compensation lawsuit? If so, the information may seem overwhelming. The attorneys at Gilbert, Blaszcyk & Milburn are here to help. We have compiled some frequently asked questions about workers' comp cases and our approach. So if you want to know more about workers' compensation rights and claims, then check out the information below.

Of course, if you have further questions, you can contact us directly. We will happily answer any questions or address any concerns you may have about our workers' compensation representation. If you would like to schedule a consultation, please call us at 631-447-6500. We have offices in Patchogue, Riverhead, and Melville. 

Why choose Gilbert, Blaszyck & Milburn?

At Gilbert, Blaszyck & Milburn, we care deeply about our clients. Our team will do all of the necessary research, investigation, and filing for your case and provide you with invaluable advice. 

With decades of experience, our attorneys will navigate the complicated landscape of judges, lawyers, insurance companies, and employers on your behalf. Our attorneys have valuable relationships with insurance companies, doctors, specialists and other attorneys all across Long Island, and will use those relationships to help you. 
Our friendly staff will help you set up an appointment and answer any remaining questions you may have.

Why use a workers’ compensation lawyer?

During a free consultation, a workers’ compensation lawyer will assess if they can help with your case. You are under no obligation to retain a lawyer after your free consultation. 

A workers’ compensation lawyer will be able to simplify the claims process for you and ensure the law is on your side. 

A workers’ compensation lawyer will never ask you directly for monetary compensation, and is only paid if and when you receive your benefits. Any fees incurred will come from the benefits you receive. An experienced and talented lawyer will give you valuable advice and ensure you receive any benefits you are entitled to.

What happens during a free consultation?

Gilbert, Blaszyck & Milburn offer a free consultation to potential clients. During this consultation, the attorney will ask you questions about your claim—when and how the injury or illness occurred, what your symptoms are, etc. 

Based on this information, the attorney will assess your claim and let you know if we can help. If we believe we can help you with your claim, you may sign a retainer, which states that the attorney’s office will represent you and will be entitled to a portion of your benefits if you are awarded them.

When should I file my claim?

You must file your workers’ compensation claim within 2 years of your original workplace injury. 

However, there are some instances in which this 2-year time window does not apply. For example, if you were exposed to asbestos, the symptoms may not surface for many months or years after the initial exposure. In cases such as these with delayed injury or illness, a claim may be filed after this 30-day period. 

You may file your claim yourself, or have your attorney file for you.

How expensive is a workers’ compensation lawyer?

New York State prohibits workers’ compensation attorneys from charging their clients. This means that you will never pay lawyers’ fees upfront. 

Workers’ compensation attorneys are paid through contingency fees. If the lawyer does not win your case, you will not have to reimburse him/her for any costs. Workers’ compensation lawyers are truly working in your best interest—they only get paid if you do! The contingency fee is a set percentage of any awards you receive from the insurance company or employer. This information will always be disclosed to you before you sign your retainer.

What is workers’ compensation insurance?

New York Workers’ Compensation Law requires that most employers obtain workers’ compensation insurance with an authorized carrier. The cost of this insurance is to be paid entirely by the employer and may not be passed on to the employee. An employer’s failure to acquire workers’ compensation insurance is a crime, punishable by criminal prosecution and/or fines. 

The Workers’ Compensation Board oversees the claims of injured workers by ensuring employer and insurer compliance. 

Workers’ compensation is intended to cover any medical expenses incurred due to your workplace injury or illness. It may also partially compensate for lost wages due to time lost at work from this workplace injury or illness.

What if my employer does not have workers’ compensation insurance?

In New York State, you may file a claim with the Uninsured Employer Fund (UEF), which is specifically designated for the injured or ill employees of companies that have illegally failed to maintain workers’ compensation insurance. Instead of filing a claim against the employer, the employee would receive compensation from the Fund, and the Fund would in turn seek reimbursement from the employer at fault. New York State Workers' Compensation Board's Bureau of Compliance receives and processes these claims. Thankfully, since the penalties for failing to maintain workers’ compensation coverage for employees is so high, relatively few employees have to go through this process. 

What is OSHA?

The Occupational Safety and Health Administration (OSHA) is an agency of the United States Department of Labor. Congress created OSHA with the Occupational Safety and Health Act of 1970, giving it the mission of setting and enforcing standards for safe and healthy working conditions and practices. 

OSHA covers most private companies and their employees, as well as many public employees. Under federal OSHA law, employees are entitled to safe workplaces, and employers must provide information on any potential health and safety hazards on the job. OSHA also guarantees that employees have the right to ask questions or file confidential complaints without fear of retaliation. If you have questions about your rights under OSHA’s law, you may explore their webpage.[1] 

Feel free to contact the law offices of Gilbert, Blaszcyk & Milburn for a free consultation on your possible claim.

Other types of benefits: 

  • Unemployment Insurance: In certain circumstances, you may be able to collect workers’ compensation benefits and unemployment insurance simultaneously. The weekly total of your benefits from both workers’ compensation and unemployment insurance cannot exceed your average weekly wage. A lawyer can explain how these benefit systems may work together in your specific circumstances.
  • Social Security Disability: You may be eligible for Social Security benefits (SSDI) in addition to workers’ compensation benefits if you are permanently disabled or expect to be unable to return to work for 12 months or more.
  • Can illegal immigrants get workers’ compensation benefits? If you are an illegal or undocumented immigrant, it can be difficult to know your rights. In New York, all workers injured on the job are eligible for workers’ compensation benefits, regardless of immigration status. Even if you lack documentation or your visa has expired, you are still eligible for workers’ compensation benefits.
    On Long Island, immigrant workers are an invaluable economic resource, contributing to many industries including construction, landscaping, agriculture, food preparation, and domestic services. Do not be afraid to bring your claim to the offices of Gilbert, Blaszcyk & Milburn. We will assess your claim, explain your rights, and help you get the compensation you deserve.

Can I appeal if I am not satisfied with my results?

Either side may appeal a judge’s decision if they are unsatisfied with the results. The appeal must be filed within 30 days of the decision.

Average Weekly Wage Benefit Rates

The New York State Workers’ Compensation Board uses the following formula to calculate weekly lost wage benefits: 

2/3 x average weekly wage x % of disability = weekly benefit 

In this formula, “% of disability” can be either 100% for total disability, or 50% for partial disability. The average weekly wage is calculated from pre-tax earnings from the year prior to the injury. The Board also sets minimums and maximums determined by the year of the injury. 

In addition to lost wage benefits, workers’ compensation covers the costs of medical appointments and procedures. 

Feel free to contact the law offices of Gilbert, Blaszcyk & Milburn for a free consultation on your possible claim.