How to keep Workers’ Compensation weekly benefits as high as possible for as long as possible after undergoing surgery
Dec 31, 2019 | 8770 views | 0 0 comments | 195 195 recommendations | email to a friend | print

For injured workers who sustain serious injuries on the job, surgery may be recommended.  In deciding whether to undergo surgery due to injuries sustained at work, the injured worker often faces a difficult choice: whether it is in their best interest to have a surgery that may improve their medical condition, but which will also result in a longer out of work period.  In answering this question, the injured worker must consider the weekly cost of living, including the needs of household dependents such as a spouse or children. The injured worker should also consider what other forms of income are available to supplement weekly payments from the insurance carrier for time out of work, including Social Security Disability or other disability pension benefits.  Although the need for surgery is a medical question that is best left for discussion with a doctor, when considering surgery, the injured claimant should always consult with an attorney to discuss the legal implications of the procedure on the case.

If the injured worker undergoes a surgery due to injuries sustained as a result of the accident, it must be authorized by the insurance carrier.  Many surgeries require written approval by the insurance carrier, while others are pre-authorized if certain medical criteria are met.  As long as authorization is received, the insurance carrier is liable for the cost of surgery, related medical treatment, and lost wages stemming from the surgery.  Importantly, when an authorized surgery is performed resulting in lost time, the injured worker should receive the maximum weekly rate of compensation they are entitled to on the case based on their average weekly wage for the year prior to the accident. From the time of surgery until a contrary medical opinion is produced, the worker is assumed to be temporarily and totally disabled from work.

Oftentimes, an injured worker is already out of work and receiving weekly benefits prior to having surgery.  In this instance, the insurance carrier is required to increase the rate of weekly pay to the maximum weekly rate the injured worker is entitled to on the case.   Once notified of the surgery, the insurance carrier will often schedule the injured worker for an examination with its own medical consultant several weeks after surgery.  The purpose for this examination is to evaluate the treatment needs of the injured worker, as well as the worker’s ability to work.  If the insurance carrier’s doctor feels the injured worker is able to work in any capacity, the carrier will seek a reduction in weekly benefits from the temporary total rate (the maximum rate) that is paid after surgery. 

There are steps an injured worker can take to ensure that they receive the maximum rate of pay after surgery for as long a period as possible.  For one, the injured worker should notify the insurance carrier of the surgery date and forward a copy of the operative report as soon as it is prepared by the doctor.  This ensures that payments will be picked up to the maximum rate as quickly as possible.  But more importantly, the injured worker should file for a hearing with the Workers’ Compensation Board to address the rate of pay after surgery.  A workers’ compensation hearing is necessary to address the rate of pay after surgery to protect the injured worker from further rate reductions.

While at such a hearing, as long as the medical evidence remains of a temporary total disability after surgery and the injured worker is still out of work due to injuries on the case, the Workers’ Compensation Law Judge will direct the insurance carrier to continue to pay the injured worker at the maximum weekly rate of compensation.  This direction by the Judge provides the injured worker with significant protection.  Because the Law Judge has directed the maximum rate of benefits, the insurance carrier cannot later reduce the rate of pay without another decision by a Law Judge directing the reduction.  As such, if the injured claimant is examined by an insurance carrier doctor months after surgery and the doctor is of the opinion that the worker can go back to work, the insurance carrier must file for a hearing before reducing the worker’s weekly benefits.  In contrast, without a hearing having taken place prior, the insurance carrier would be able to immediately reduce the rate of pay in accordance with its doctor’s opinion.  This hearing protects the injured worker from a future rate reduction without a full and fair hearing before a Judge to consider the question or rate of pay and disability status. 

If you or someone you know has been the victim of an accident, please reach out to us for a free legal consultation by calling us 24/7 at 212– 514–5100, emailing me at, or visiting our law firm in lower Manhattan (42 Broadway, Suite 1927). You can also ask us questions through the 24-hour chat box on our website ( We offer free consultations for all potential personal injury cases.

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