A common accidental injury occurs where a worker lifts something heavy (a box, a desk, a patient in a hospital bed, etc.) and injures his/her back. Accidental injuries usually involve a specific moment when the injury occurs. In some cases, an accidental injury can result over a period of time due to repetitive traumas at work. Such injuries are also compensable as accidents. The same injury may also constitute an occupational disease in some circumstances.

An “occupational disease” is legally different from an accident. However, not all illnesses or injuries contracted at work or from work are occupational diseases. The distinctive feature of an occupational disease is that it is an illness or injury particular to the type of employment in which the person is engaged. The Workers’ Compensation Law defines an occupational disease in Section 3 (2) as “… a disease resulting from the nature of employment and contracted therein.” The first question is, “What is the nature of this worker’s employment?” In other words, “What is this worker’s job?” For an illness or injury to be an occupational disease, the illness or injury must be one that workers in this line of work are particularly at risk of suffering. There must be a recognizable link between the disease and some distinctive feature of the worker’s job. An example is a steamfitter who works for many years with pipes that are covered with asbestos and contracts asbestosis, a deadly cancer. Because steamfitters are particularly at risk of contracting asbestosis, due to the nature of their work (they routinely work with pipes that are covered in asbestos) asbestosis is an occupational disease for a steamfitter. On the other hand, if a security guard who for many years walks in a basement corridor at work that exposes him to asbestos, and he contracts asbestosis, his illness is not an occupational disease because asbestosis is not an illness that security guards are particularly at risk of suffering. An occupational disease relates to the type of work a person does (“the nature of employment”) not the environmental conditions of where he/she works. This does not mean the security guard does not have a remedy, his/her Legal Representative could argue that the illness is compensable as an accident. Section 48 of the Workers’ Compensation Law essentially states, that if a disease does not qualify as an occupational disease, it may still be compensable as an accident.

A common misconception is that exposure to an unhealthy work environment renders the resulting injury compensable as an occupational disease. The exposureis not enough.

An occupational disease is a condition, which derives from the very nature of the employment and not from an environmental condition specific to the place of work. For example, an administrative assistant who suffers from asthma due to unclear air in an unventilated building has not suffered an occupational disease. This worker must claim his/her illness is an accident.

There are injuries that are occupational diseases for administrative assistants (carpal tunnel syndrome, for example) but the work of administrative assistants do not particularly place them at risk for contracting asthma. The work of bakers, on the other hand, does place bakers (because of what they do) at risk for contracting a disease known as baker’s asthma. Another example is a tunnel worker who contracts caisson disease. The worker has suffered an occupational disease, because caisson disease is a particular risk of the work of tunnel workers.

Many claims recently established as occupational diseases involve people who perform repetitive work with their hands, such as administrative assistants, secretaries, data-entry workers, typists, dental assistants, technicians, etc. Doctors refer to such injuries as repetitive stress injuries, or RSI’s. The most common repetitive stress injury is carpal tunnel syndrome.

Answer:

The general rule is that claims for Workers’ Compensation benefits must be filed within two years. The question is “When does the two year period begin?” In the case of a back injury from lifting a box, the two-year period begins to run at the time of the accident. In occupational disease cases, however, the illness can develop slowly over many years.

The worker may have already contracted the disease, yet may not have symptoms. The worker may have symptoms, but may not know the cause of the symptoms. The workers may have symptoms, yet continue to go to work and perform his/her duties, even though he/she is in pain. The worker may miss time from work, yet not know his/her work caused the disease. Which of these events starts the two-year period?

The answer is that the Workers’ Compensation Board sets a “date of disablement.” The date of disablement is a legal term, which the law says will be treated as the date of accident (even though the worker; did not really have an accident). If the worker did not file the claim for Workers’ Compensation benefits within two years of the date of disablement, the claim will be barred, unless the worker can find a way around the two year rule, such as by proving that the employer made an advance payment of compensation, or by showing that the employer’s Legal Representative failed to argue that the claim was filed too late at the first hearing where all the parties were present.

There are several possible dates that the Workers’ Compensation Board may use a date of disablement. The Workers’ Compensation Board may set the date of disablement as the date the person first began to miss time for work, the date the person first began to treat with a doctor for the work-related illness, or the date the person first knew the illness was related to the work. The Legal Representative for the injured worker is concerned with establishing a date of disablement that will satisfy the two-year rule. The Legal Representative for the employer argue for a date of disablement that will result in the claim being denied based on the two year rule, or which will make another employer (or its insurance carrier) responsible for the injury. We argue that the Board should not set a date of disablement that will result in an injustice to the worker. To be safe, when a worker knows that he/she has suffered an illness or injury as a result of his/her work, he/she should file a C-3 form immediately (or contact a NYS Licensed Representative, and have file a C-3 form immediately). (Special rules apply to occupational hearing loss claims).

Answer:

The general rule is that claims for Workers’ Compensation benefits must be filed within two years. The question is “When does the two year period begin?” In the case of a back injury from lifting a box, the two-year period begins to run at the time of the accident. In occupational disease cases, however, the illness can develop slowly over many years.

The worker may have already contracted the disease, yet may not have symptoms. The worker may have symptoms, but may not know the cause of the symptoms. The workers may have symptoms, yet continue to go to work and perform his/her duties, even though he/she is in pain. The worker may miss time from work, yet not know his/her work caused the disease. Which of these events starts the two-year period?

The answer is that the Workers’ Compensation Board sets a “date of disablement.” The date of disablement is a legal term, which the law says will be treated as the date of accident (even though the worker; did not really have an accident). If the worker did not file the claim for Workers’ Compensation benefits within two years of the date of disablement, the claim will be barred, unless the worker can find a way around the two year rule, such as by proving that the employer made an advance payment of compensation, or by showing that the employer’s Legal Representative failed to argue that the claim was filed too late at the first hearing where all the parties were present.

There are several possible dates that the Workers’ Compensation Board may use a date of disablement. The Workers’ Compensation Board may set the date of disablement as the date the person first began to miss time for work, the date the person first began to treat with a doctor for the work-related illness, or the date the person first knew the illness was related to the work. The Legal Representative for the injured worker is concerned with establishing a date of disablement that will satisfy the two-year rule. The Legal Representative for the employer argue for a date of disablement that will result in the claim being denied based on the two year rule, or which will make another employer (or its insurance carrier) responsible for the injury. We argue that the Board should not set a date of disablement that will result in an injustice to the worker. To be safe, when a worker knows that he/she has suffered an illness or injury as a result of his/her work, he/she should file a C-3 form immediately (or contact a NYS Licensed Representative, and have file a C-3 form immediately). (Special rules apply to occupational hearing loss claims).

Answer:

Obtain the services of a NYS Licensed Workers’ Compensation Representative. Claimants may represent themselves at the Workers’ Compensation Board, but occupational disease claims are even more complicated than accident claims. A worker starts an occupational disease claim by filing a C-3 form. However, a worker can easily write something on a C-3 form in an occupational disease case that the employer will use against him/her late in the case. For this reason, the worker should complete the C-3 form with NYS Licensed Representative.

You must see a doctor! Some doctors specialize in occupational injuries. To proceed with your case, your doctor must submit a medical report that includes the history of your work that caused the injury (“Ms. Jones has been working in data entry for six years”). The report must include a diagnosis (“Ms. Jones has carpal tunnel syndrome”). Lastly, the report must give an opinion whether the work caused the injury (Ms. Jones’ carpal tunnel syndrome is causally related to her data entry work”). The C-4 form has questions that cover all of these elements. A report that includes all of these elements is called “prima facie medical evidence.” The burden then shifts to the employer to produce a medical opinion from its doctor that rebuts this evidence..

Answer:

The claim begins by the injured worker filing a C-3 form. The injured worker is called the claimant. The Workers’ Compensation Board then checks its computer to see if the employer has an insurance company or is self-insured. (If the employer did not have insurance and is not self-insured, then the case will ultimately be the responsibility of the Uninsured Employer’s Fund). The Workers’ Compensation Board assigns an eight-digit number to the claim, called the WCB number. The Workers’ Compensation Board sends the insurance company or the self-insured employer a notice that the claim has been filed (form EC-84). The insurance company or self-insured employer must either inform the claimant that is accepting responsibility for the claim (form C-669) or inform the claimant that it is controverting (fighting) the claim (form C-7). The insurance company or self-insured employer must file its form within twenty-five days from the date the Workers’ Compensation Board’s notice was mailed. Once the C-7 form is filed, the Workers’ Compensation Board schedules a hearing. At the first Hearing the Law Judge rules on whether the claimant has produced prima facie medical evidence. Is he/she has, the Law Judge then directs the carrier or self-insured employer to have the claimant examined by its own doctor (unless this has been completed already). The Law Judge may also schedule another hearing where the claimant will testify about her employment, her work activities, and her notice to his/her employer of the injury, etc. The other side may produce witnesses as well.

If the insurance company or self-insured employer agrees that the claimant has suffered an occupational disease that is causally related to his/her work, then the Law Judge will likely establish that the case is compensable to the next hearing. If the opposing doctor denies the disease is related to the work, then the Law Judge will direct testimony of the doctors so that the Law Judge can decide which doctor is more credible. The Legal Representative for the other side cross-examines the claimant’s doctor, and the claimant’s Legal Representative cross-examines the insurance company or self-insured’s doctor. If the claimant wins, the other side often will appeal the decision to a panel of Commissioners of the Workers’ Compensation Board; if the employer wins, the claimant will often appeal. In a small minority of cases, the party that losses at the Workers’ Compensation Board level may appeal to an appellate court.

Every case is different. Many other issues will arise in the case even after the claim is established as compensable, especially issues relating to treatment and disability.

IYes.

IYes.

Yes, but only if the preexisting condition is asymptomatic and non-disabling. Some distinctive feature of the employment must cause disability by activating the condition.

For non-dust disease cases, the employer for whom you worked on the date of disablement is primarily responsible. The Workers’ Compensation Board may apportion the responsibility among prior employers. .

Carpal tunnel syndrome is a particular type of repetitive stress injury. The most common is a peripheral entrapment syndrome in the upper limb. The etiology is generally a compression of the median nerve due to thickening of the synovium around the flexor tendons at the wrist.

The Medical Guidelines explain that carpal tunnel syndrome is an entrapment neuropathy. The carpal tunnel is the name of a particular part of the body. “Carpal” means hand. The word “tunnel” tell us that we are talking about a space in the hand (wrist). In other words, the carpal tunnel is a space in the wrist and hand through which pass various nerves, ligaments, tendons, blood vessels, etc. The carpal tunnel is an entrapment neuropathy which tells us that a nerve in this space is being entrapped. The nerve that is entrapped in carpal tunnel syndrome is the medial nerve. In other words, the medial nerve does not have enough room and is irritated by something in the carpal tunnel. Certain job tasks cause carpal tunnel syndrome. A common cause is working on a computer keyboard.

Please see the revised New York State Medical Guidelines that took effect as of March 1, 2013 for more information about Carpal Tunnel Syndrome.

While the worker is out of work due to carpal tunnel syndrome, he/she is entitled to two-thirds of his/her average weekly wage (up to the maximum rate) when he/she is temporarily totally disabled. When he/she is temporarily partially disabled, he/she is entitled to some fraction of this two-thirds figure. Upon proof that the condition is permanent, the Board may classify the worker permanently totally disabled (which is rare), and permanently partially disabled, or the Board may find the worker is entitled to permanent loss of use award for his hands.

Most carpal tunnel cases result in an award for the permanent loss of use of the hand. If both hands are injured, the Workers’ Compensation Board decides the permanent loss of use for each hand. The Workers’ Compensation Board should not make a decision as to the permanent loss of use of the hand until the worker has completed medical treatment for the condition. Once the worker’s hands are at a point where no further treatment is going to improve the condition, the worker’s doctor provides an opinion as the permanent loss of use. As a general rule, the doctor should not provide such an opinion until one year after the accident or one year after the last surgery for the condition. The doctor’s opinion on the permanent loss of use must be based on New York State Workers’ Compensation Board Medical Guidelines.

Please click on the following link to the Workers’ Compensation Board Guidelines for more information on permanency for Carpal Tunnel Syndrome.