Back Injury at Work in New York: Three Questions That Decide Your Options

Question one: did it happen because of your work?

In New York, workers' compensation covers injuries that arise out of and in the course of employment. For a back injury, that usually takes one of two forms:

• A specific accident. A lift, a fall, a slip, a crash while driving for work. These are the clearest cases, because there is a date, a time and a cause.
• Gradual wear from the job. Years of heavy lifting, repetitive bending or vibration can damage the spine without a single event. Those claims are possible too, but they depend heavily on medical evidence tying the condition to the work. Our guide on carpal tunnel and workers' compensation explains how gradual, occupational conditions are handled.

Either way, two deadlines start immediately. Written notice to your employer is due within 30 days under Workers' Compensation Law § 18, and a claim with the Workers' Compensation Board generally within two years under § 28. Tell your supervisor in writing the same day if you can, and keep a copy.

What workers' compensation pays for a back injury

An accepted claim generally covers medical treatment — doctor visits, imaging, physical therapy, injections and, if needed, surgery — and pays part of your lost wages while you are out or working reduced duties. If your doctor allows you to work with limits, see our article on light-duty work restrictions.

Workers' compensation does not pay for pain and suffering. It also does not require you to prove your employer did anything wrong.

Why back injuries are treated differently from arm or leg injuries

This is the part that surprises most injured workers. When a hand, arm, leg or foot is permanently injured, New York pays a "schedule loss of use" award based on a statutory formula; our workers' comp settlement calculator shows how that works. The spine is not on that schedule.

A permanent back injury is instead classified under Workers' Compensation Law § 15(3)(w), the provision for "other cases" of permanent partial disability. Benefits are based on the difference between what you earned before and what you can earn afterward, and they are paid for a limited number of weeks that depends on how much of your wage-earning capacity you lost — up to 525 weeks for a loss greater than 95 percent, and fewer weeks for smaller losses. That makes the medical evidence about your restrictions, and the Board's finding on your loss of wage-earning capacity, the center of a permanent back claim.

Question two: did someone other than your employer cause it?

In most cases, workers' compensation is the only claim you can bring against your own employer. But many back injuries at work involve other companies or people, and a claim against them can recover what workers' compensation does not: pain and suffering and full lost earnings. Common examples:

• Construction sites. A fall from a ladder, scaffold or roof can bring in New York's Labor Law. Labor Law § 240(1), the Scaffold Law, makes owners and general contractors responsible for many height-related injuries. Our article on the Scaffold Law explains it.
• Driving for work. If another driver hit you while you were driving for your job, you may have a claim against that driver in addition to workers' compensation.
• Someone else's property. Delivery drivers, home health aides and service workers hurt by a dangerous condition on a customer's property may have a claim against the owner. See our guide to the elements of premises liability.
• Defective equipment. A lift, hoist, ladder or forklift that failed can support a claim against its manufacturer. Our article on forklift accidents covers how those claims work.

When both kinds of claims exist, they run side by side, and the workers' compensation carrier is generally repaid from the third-party recovery. Our article on workers' comp vs. a personal injury claim explains how they fit together.

Question three: what kind of back injury is it?

The diagnosis shapes both the treatment and the claim. Back injuries at work commonly include:

• Strains and sprains of the muscles and ligaments, which often improve with therapy.
• Herniated or bulging discs, where disc material presses on a nerve and causes pain, numbness or weakness in a leg or arm.
• Vertebral fractures from falls.
• Nerve injuries, including sciatica and, in severe cases, spinal cord injury.

MedlinePlus has an overview of back injuries. For the disc injuries that come up most often, see our articles on herniated disc settlements and spinal fusion.

Insurers commonly argue that a back injury is really age-related degeneration. Many adults have some disc wear on an MRI. The answer is the same as in any back case: a clear history showing you worked without back problems before, prompt complaints after the injury, and a doctor who addresses the degeneration directly and explains what the work injury changed.

Returning to work, and what happens to your benefits

Many workers with back injuries return to work before they are fully recovered, sometimes in a lighter role. That is often good for recovery, but it changes the claim. If you return at lower pay, workers' compensation may pay part of the difference between your old wages and what you earn now. If your employer offers light duty within your doctor's restrictions and you refuse it without a good reason, your benefits may be affected.

The key is the doctor's written restrictions. A note that says "no lifting over 20 pounds, no repetitive bending, change position every 30 minutes" is something an employer can work with and a judge can enforce. A note that says "light duty" with no detail invites disputes.

The insurer's medical examination

At some point, the workers' compensation carrier will usually send you to a doctor of its choosing for an examination. That doctor may conclude that you can return to full duty, that your injury has resolved, or that your limitation is smaller than your own doctor says. Those opinions are used to reduce or stop benefits.

You are entitled to know what is in that report, and your own doctor can respond to it. When the doctors disagree, a workers' compensation judge decides which opinion is more convincing, often after testimony from both. Consistent treatment records and a treating doctor who explains the basis for each restriction usually carry the most weight.

Jobs where back injuries are most common

We see back injuries most often among construction workers, warehouse and delivery workers, nurses and home health aides who lift and move patients, building maintenance and porters, restaurant workers, and anyone who drives for a living. In several of those jobs, a third party — a general contractor, a property owner, another driver — is involved more often than workers realize.

Protecting your claim from the first day

• Report the injury in writing to your employer, with the date, time, place and what happened.
• Get medical care right away and tell the doctor it happened at work.
• Ask for treatment from a provider authorized by the Workers' Compensation Board, so your care is billed to the claim.
• Write down the names of co-workers who saw what happened.
• If equipment was involved, ask in writing that it be kept as it is.
• Follow your doctor's restrictions and keep every appointment.
• Do not settle the workers' compensation claim before you know whether surgery or a permanent limitation is ahead.

New York law prohibits employers from retaliating against workers for filing a compensation claim. A third-party lawsuit generally must be filed within three years; see New York's filing deadlines.

Back injury claims are handled by our workers' compensation practice on the comp side, and lawsuits against other companies are handled on a contingency fee.

Common questions

Is a back injury at work covered by workers' comp in New York?

Generally yes, if it arose out of and in the course of your employment, whether from a specific accident or gradual wear from the job. Notify your employer in writing within 30 days and file a claim within two years.

Can I get a schedule loss of use award for a back injury?

No. The spine is not on New York's schedule. A permanent back injury is classified as a non-schedule permanent partial disability, with benefits based on lost wage-earning capacity and paid for a limited number of weeks.

Can I sue my employer for a back injury?

Usually not; workers' compensation is generally the only remedy against your own employer. But you may be able to sue others, such as a property owner, general contractor, equipment manufacturer or another driver.

What if I already had back problems?

You may still have a claim if the work injury aggravated the condition. A doctor who knows your history should explain what changed after the injury.

Does workers' comp pay for back surgery?

Yes, if the claim is accepted and the surgery is medically necessary and authorized.

This page is general information about New York law. It is not legal or medical advice, and reading it does not create an attorney-client relationship with Davidov & Cohen Law. To talk about your own situation, tell us what happened.