If you have a workers’ compensation claim in New York because of an on-the-job injury or occupational illness, you’re probably wondering whether you can afford to hire a lawyer. The good news is that you won’t have to pay your attorney if you don’t receive any monetary workers’ comp benefits. The lawyer will be paid out of your settlement or award. It also helps to know that, as our national survey revealed, injured employees with attorneys received more compensation, on average, than those without legal representation.
This article explains New York’s rules and procedures for determining whether and how much your lawyer will be paid.
In most U.S. states, workers’ comp attorneys receive a percentage of their clients’ settlements or awards. The system works somewhat differently in New York. After you have received an award or settled your workers’ comp case, your lawyer submit a request for fees to the state’s Workers’ Compensation Board (WCB). If the request is over a certain amount (currently $1,000), the request must be on a written form and must itemize the amount of time spent for each of the services the attorney provided in your case.
You must receive and sign a copy of the form. You may object to the fee request by checking the appropriate box, writing the reasons for your objection, and sending a copy to your lawyer, your employer’s insurance company, and the WCB.
A workers’ comp judge will review the fee request (and your objections, if you have them) and approve the request, lower the amount, or deny the request entirely. The approved fee will then be deducted from the cash portion of your settlement or award (not including medical benefits). (N.Y. Workers’ Comp. Law, § 24; N.Y. Comp. Codes R. & Regs. tit. 12, §§ 300.17, 300.36(j) (2019).)
It’s up to the workers’ comp judge to decide whether fee request is appropriate. Although New York’s statutes and regulations don’t say much about how judges should make that decision, the state’s courts have provided further guidance. Among other things, judges may consider:
Although the judge may also consider the results your lawyer was able to obtain, the fee may not be based solely on the amount of your award or settlement. (N.Y. Comp. Codes R. & Regs. tit. 12, § 300.17(f) (2019).)
You may appeal the judge’s decision by filing a written objection with the WCB within 30 days.
Besides the attorney’s fee, there are other costs involved in pursuing a workers’ comp case, such as the cost of obtaining medical reports and records, expert witness fees (such as paying doctors’ for their testimony), and court reporter fees. Typically, your lawyer will pay for these costs in advance and then request reimbursement along with the request for attorney’s fees. If the judge approves the costs, the lawyer will be reimbursed out of your settlement or award.
Workers’ comp attorneys typically offer free initial consultations for injured employees. It’s a good idea to prepare for this consultation by bringing a list of questions and all of the information about your injury and claim. The lawyer should then be able to evaluate your case and let you know how complicated it might be—which can help you decide whether your claim is simple enough to pursue on your own or whether you need a workers' comp attorney. Initial consultations are also a good opportunity to decide whether a particular lawyer is a good fit for you.
Given New York’s system for approving workers’ comp attorneys’ fees, you won’t know ahead of time how much your lawyer will take out of your eventual settlement or award. But you can ask about the attorney’s normal hourly rate, how costs will be handled, and whether you'll have to reimburse your lawyer for advanced costs if you don't win a settlement or award.
