Hurt My Back at Work and the Two Days Off Were Not Enough

Attorney Answer

If you are still hurting when the two authorized days run out, the question is a medical one, and in New York a work injury is answered inside the workers' compensation system rather than by you alone or by a supervisor's say-so. Time out of work after a work injury turns on what your treating provider certifies and what the employer's compensation carrier accepts. So the step that protects you is another visit and a new written work-status note, not an unexplained absence.

Two sections set the clocks. Workers' Compensation Law § 18 requires that notice of an injury for which compensation is payable be given to the employer within thirty days after the accident causing the injury. The section says the notice shall be in writing, shall contain your name and address, and shall state in ordinary language the time, place, nature and cause of the injury. It also describes when a failure to give that notice may be excused — including where the employer or the person supervising the work already had knowledge of the accident, or where the employer has not been prejudiced — and it treats the objection as waived unless it is raised at the first hearing. Mentioning a sore back to a supervisor is common, and it is not the same thing as the written notice the section describes.

Workers' Compensation Law § 28 is the claim clock. The right to claim compensation is barred unless a claim for compensation is filed with the chairman within two years after the accident, subject to the waiver the section itself sets out where the objection is not raised at the first hearing, and to the separate rule the section provides for occupational disease. Two years sounds generous. The practical problem is different: a back injury that is treated briefly, reported informally and then goes quiet becomes a disputed one, and the dispute is about proof rather than about the deadline.

Whether wage replacement is payable for the days you stay out depends on medical evidence of disability and on the carrier's position, and those disagreements are resolved through the board's process rather than at the job site. Whether an absence is protected from discipline is an employment question that neither of these two sections answers, and it is worth putting to a New York attorney before you rely on it.

If someone other than your employer contributed to the injury — a defective lift or piece of equipment, another company's crew, a driver — a separate personal-injury action may exist alongside the compensation claim. That action runs on CPLR 214(5): three years for "an action to recover damages for a personal injury except as provided in sections 214-b, 214-c, 214-i and 215". How a compensation claim and an outside case affect each other, including the carrier's interest in any recovery, is a question to put to counsel before either is resolved.

What you can do

1. See the treating provider again before the authorized days end and ask for a current work-status note stating the restrictions in writing.

2. Give the employer written notice of the injury describing the time, place, nature and cause, and keep a dated copy for yourself.

3. Ask the employer or its carrier for the claim number and the carrier's name, and keep every letter and form you receive.

4. Keep a short daily record of symptoms, missed shifts, and what you were told about returning.

5. Take that file to a New York attorney who handles workers' compensation before you agree to a return-to-work date you cannot meet or sign a form you do not understand.

⏱ Time limits apply. Workers' Compensation Law § 18 keys its thirty-day notice to the accident causing the injury, and § 28 keys the two-year claim period to the same date; if a person or company other than your employer is responsible, CPLR 214(5) sets a three-year period for that separate action. Which of those applies to you, and when each began, depends on facts this page cannot see, and none of them should be counted off a calendar at home. Have a New York attorney review the dates against your medical records and your employer's file.