Workers Compensation Brain Injury NY
A traumatic brain injury can happen in a split second on the job, but the consequences often last a lifetime. Whether you suffered a concussion from a fall at a construction site or a severe head trauma from machinery failure, understanding your rights under New York’s workers’ compensation system is critical to securing the medical care and financial support you need. Brain injuries present unique challenges in workers’ compensation claims because their effects may not be immediately visible, and their long-term impact on your ability to work can be profound. This page explains how New York workers’ compensation covers brain injuries, what benefits you may be entitled to, and why working with an experienced attorney can make a significant difference in the outcome of your claim.
Key Takeaways
- Maximum Weekly Benefit: For injuries occurring between July 1, 2025 and June 30, 2026, the maximum workers’ compensation benefit in New York is $1,222.42 per week.
- Non-Schedule Loss Classification: Brain injuries are classified as non-schedule loss of use, meaning benefits are based on your loss of future wage-earning capacity rather than a fixed schedule.
- Grave Injury Exception: If your brain injury causes permanent total disability, it may qualify as a “grave injury” under New York law, allowing you to pursue additional legal remedies beyond workers’ compensation.
- Benefit Duration: For non-schedule losses, you may receive benefits for 350 to 525 weeks depending on the percentage of your wage-earning capacity loss.
- Legal Representation Matters: Brain injury claims are frequently disputed by insurance carriers due to their complexity and high cost, making experienced legal counsel essential.
What Is a Traumatic Brain Injury?
A traumatic brain injury occurs when an external force causes damage to the brain, disrupting normal brain function. In workplace settings, TBIs can result from falls, being struck by objects, vehicle accidents, or exposure to workplace violence. According to the Centers for Disease Control and Prevention, traumatic brain injuries range in severity from mild concussions to severe injuries causing permanent disability.
Brain injuries are categorized by severity:
Mild TBI (Concussion): May involve brief loss of consciousness, confusion, headache, and temporary cognitive difficulties. While often called “mild,” even concussions can have lasting effects on memory, concentration, and emotional regulation.
Moderate TBI: Typically involves loss of consciousness lasting minutes to hours, significant confusion, and cognitive impairment that may persist for weeks or months. Workers with moderate TBIs often require extensive rehabilitation.
Severe TBI: Results in extended unconsciousness or amnesia, permanent cognitive deficits, physical disabilities, and profound changes in personality or behavior. Severe TBIs often result in permanent total disability and lifelong care needs.
The workplace environments that pose the highest risk for traumatic brain injuries include construction sites, manufacturing facilities, warehouses, transportation and delivery jobs, and agriculture. According to the Bureau of Labor Statistics, approximately 100,000 workers sustain head injuries on the job annually in the United States.
How New York Workers’ Compensation Covers Brain Injuries
New York’s workers’ compensation system provides benefits to employees who suffer work-related injuries, including traumatic brain injuries. Unlike personal injury lawsuits, workers’ compensation is a no-fault system, meaning you do not need to prove your employer was negligent to receive benefits. However, you must show that your injury arose out of and in the course of your employment.
For brain injuries specifically, the New York Workers’ Compensation Board classifies these as non-schedule loss of use injuries. This classification is significant because it affects how your benefits are calculated and how long you may receive them.
Workers’ compensation coverage for brain injuries includes several types of benefits:
Medical Benefits: Full coverage for all necessary and reasonable medical treatment related to your brain injury, including emergency care, hospitalization, surgery, rehabilitation, medications, medical equipment, and ongoing treatment. Medical benefits continue for as long as treatment is necessary, even after other benefits end.
Temporary Disability Benefits: If your brain injury prevents you from working during recovery, you receive weekly cash benefits. For the period from July 1, 2025 through June 30, 2026, the maximum weekly benefit is $1,222.42. These benefits typically equal two-thirds of your average weekly wage, up to the state maximum.
Permanent Disability Benefits: If your brain injury results in permanent impairment that affects your ability to earn wages, you may be entitled to permanent disability benefits. For brain injuries, these are calculated as non-schedule loss of use awards based on your reduced wage-earning capacity.
Vocational Rehabilitation: If your brain injury prevents you from returning to your previous occupation, you may be entitled to vocational rehabilitation services to help you retrain for different work within your capabilities.
Understanding Non-Schedule Loss of Use for Brain Injuries
Brain injuries fall under New York’s non-schedule loss of use classification, which differs significantly from schedule loss of use awards. Understanding this distinction is crucial to knowing what benefits you may receive.
Schedule loss of use applies to specific body parts listed in the workers’ compensation statute, such as arms, legs, hands, feet, fingers, toes, eyes, and ears. For these injuries, the law provides a set number of weeks of compensation based on the percentage of function lost in that body part.
Non-schedule loss of use applies to permanent disabilities involving the brain, spine, pelvis, lungs, or heart. According to the New York Workers’ Compensation Board, awards for non-schedule losses are determined based on the worker’s loss of future wage-earning potential after reaching maximum medical improvement.
The evaluation process for non-schedule loss involves:
Maximum Medical Improvement: You must reach MMI, the point at which your condition has stabilized and is unlikely to improve significantly with further treatment. This determination is made by your treating physician and may be contested by the insurance carrier.
Wage Earning Capacity Assessment: The Workers’ Compensation Board evaluates how your brain injury has reduced your ability to earn wages. This assessment considers your pre-injury occupation, education, skills, age, and the limitations imposed by your injury.
Form VDF-1: The Loss of Wage Earning Capacity Vocational Data Form documents your work history, education, and current capabilities. This form is critical evidence in establishing the extent of your non-schedule loss.
Percentage Determination: Based on all evidence, the Board determines what percentage of your wage-earning capacity has been lost. This percentage directly affects both the amount and duration of your benefits.
Schedule Loss of Use
- Applies to specific body parts (arms, legs, eyes, etc.)
- Fixed number of weeks based on statute
- Benefits based on percentage of function lost
- Does not apply to brain injuries
Non-Schedule Loss of Use
- Applies to brain, spine, pelvis, lungs, heart
- Variable duration based on wage loss percentage
- Benefits based on earning capacity reduction
- Requires vocational evaluation
How Long Can You Receive Benefits for a Brain Injury?
The duration of benefits for brain injury-related non-schedule loss is determined by the percentage of your wage-earning capacity that has been lost. New York law establishes a formula that provides longer benefit periods for more severe losses.
| Loss of Wage-Earning Capacity | Duration of Benefits |
|---|---|
| Greater than 95% | 525 weeks |
| 90% to 95% | 500 weeks |
| 85% to 90% | 475 weeks |
| 80% to 85% | 450 weeks |
| 75% to 80% | 425 weeks |
| 70% to 75% | 400 weeks |
| 60% to 70% | 375 weeks |
| 50% to 60% | 350 weeks |
For example, if the Workers’ Compensation Board determines that your brain injury has reduced your wage-earning capacity by 80%, you would be entitled to benefits for 450 weeks (approximately 8.6 years). The weekly benefit amount would be calculated based on your pre-injury wages and the percentage of loss.
It is important to understand that these benefit periods have limits. Unlike some injuries that may qualify for lifetime benefits, non-schedule loss awards are capped at the durations listed above. However, if your brain injury results in permanent total disability, you may qualify for different benefits without time limits.
Maximum Medical Improvement Matters: The clock on your permanent disability benefits does not start until you reach maximum medical improvement. This means you should not rush the MMI determination, as additional treatment and recovery time may improve your ultimate outcome and reduce your permanent disability percentage.
The Grave Injury Exception for Brain Injuries
New York law includes an important exception to the general rule that workers’ compensation is an employee’s exclusive remedy for work-related injuries. Under New York Workers’ Compensation Law Section 11, if an injury qualifies as a “grave injury,” the injured worker may pursue additional legal claims beyond workers’ compensation.
For brain injuries, the statute specifically defines a grave injury as “an acquired injury to the brain caused by an external physical force resulting in permanent total disability.” This definition has three critical elements:
Acquired Injury to the Brain: The brain injury must be acquired, meaning it resulted from an external trauma rather than a degenerative condition or illness. Workplace accidents such as falls, being struck by objects, or vehicle collisions typically satisfy this requirement.
External Physical Force: The injury must result from physical trauma. Brain injuries from oxygen deprivation or toxic exposure may not qualify under the grave injury exception unless they resulted from a physical impact or force.
Permanent Total Disability: This is the most challenging element to prove. You must establish that your brain injury has left you permanently and totally unable to work in any capacity. Partial disability or significant cognitive impairment alone is insufficient. The burden of proof often requires extensive medical testimony from neurologists, neuropsychologists, and vocational experts.
If your brain injury qualifies as a grave injury, you gain important legal rights:
Third-Party Liability Claims: You may be able to pursue personal injury claims against parties other than your employer, such as equipment manufacturers, property owners, or contractors whose negligence contributed to your injury.
Pain and Suffering Damages: Workers’ compensation does not compensate for pain and suffering. A grave injury claim allows you to seek damages for physical pain, emotional distress, loss of enjoyment of life, and other non-economic losses.
Full Wage Replacement: Workers’ compensation provides only two-thirds of your wages up to a maximum amount. A successful personal injury claim can recover full lost wages and future earning capacity without statutory caps.
Employer Liability: In rare cases involving gross negligence or intentional conduct, the grave injury exception may allow claims directly against your employer.
The grave injury threshold is deliberately high. Most brain injuries, even serious ones causing significant disability, do not meet the permanent total disability standard. However, for the most catastrophic brain injuries, this exception provides a pathway to more comprehensive compensation.
Time Limits Apply: Even if your injury qualifies as a grave injury, you must still comply with strict time limits for filing personal injury lawsuits. In New York, personal injury claims generally must be filed within three years of the accident, though exceptions may apply. Do not delay consulting with an attorney if you believe you may have a grave injury claim.
What Brain Injury Settlements Look Like in New York
While workers’ compensation benefits are calculated according to statutory formulas, understanding typical settlement ranges can help you gauge the potential value of your claim. Brain injury settlements vary widely based on severity, long-term prognosis, and whether additional claims beyond workers’ compensation are available.
Based on data from insurance carriers and legal settlements, typical ranges include:
Mild Traumatic Brain Injury: Settlements for mild TBIs, including concussions with relatively short recovery periods, typically range from $20,000 to $100,000. These cases often involve temporary symptoms that resolve within weeks to months, with limited permanent impairment.
Moderate Traumatic Brain Injury: When brain injuries cause persistent cognitive difficulties, personality changes, or partial disability, settlements generally range from $100,000 to $1 million. The wide range reflects differences in how these injuries affect individual workers’ ability to return to employment.
Severe Traumatic Brain Injury: Catastrophic brain injuries resulting in permanent total disability, need for lifetime care, or profound cognitive and physical impairments may result in settlements exceeding $1 million, with some cases reaching $5 million or more. These settlements typically involve grave injury claims that go beyond workers’ compensation.
According to industry data, insurance carriers pay an average of approximately $97,000 per traumatic brain injury workers’ compensation claim. However, this average includes many minor concussions alongside more serious injuries, so it should not be viewed as typical for moderate to severe TBIs.
Several factors influence the value of brain injury settlements:
Severity and Permanence: The extent of your injury and whether it causes permanent impairment are the most significant factors. Injuries requiring ongoing care or preventing return to work command higher settlements.
Age and Earning Capacity: Younger workers with higher pre-injury earnings typically receive larger settlements because their injuries affect more years of potential earnings.
Medical Evidence: Strong medical documentation from neurologists, neuropsychologists, and other specialists showing the extent and permanence of your injuries is essential to maximizing your settlement.
Liability for the Accident: If third parties share responsibility for your injury, additional claims may be available beyond workers’ compensation, significantly increasing total recovery.
Quality of Legal Representation: Brain injury claims are complex and frequently disputed. Experienced legal counsel can make the difference between a minimal settlement and full compensation for your losses.
Settlement vs. Ongoing Benefits: Insurance carriers often offer lump-sum settlements to close brain injury claims. While settlements provide immediate funds and certainty, they also end your entitlement to future medical benefits and wage replacement. Never accept a settlement without first consulting an attorney who can evaluate whether the offer adequately compensates you for lifetime losses.
Filing a Workers’ Compensation Claim for Brain Injury
Properly filing and pursuing your workers’ compensation claim is critical to securing benefits. The process involves several important steps, and mistakes can result in delayed or denied benefits.
Report the Injury
Notify your employer of your brain injury immediately or as soon as you become aware that your symptoms are work-related. New York law requires you to report workplace injuries within 30 days, though earlier reporting prevents disputes about whether the injury is work-related.
Seek Medical Treatment
Get immediate medical attention for any head injury, even if symptoms seem mild initially. Brain injuries can worsen over time. Your medical records will serve as crucial evidence linking your injury to the workplace accident and documenting the severity of your condition.
File Form C-3
Complete and file the Employee Claim form (Form C-3) with the Workers’ Compensation Board. This form officially initiates your claim. Your employer should provide this form, but you can obtain it directly from the Board if necessary.
Attend Medical Evaluations
The insurance carrier will likely require you to attend independent medical examinations. These exams assess your injury and work capacity. While called “independent,” these doctors are hired by the insurance company and often provide opinions favorable to the carrier.
Gather Documentation
Collect all evidence supporting your claim, including medical records, diagnostic imaging results, neuropsychological test results, witness statements about the accident, and documentation of how your injury affects your daily life and work capacity.
Attend Hearings
If the insurance carrier disputes your claim, you will need to attend hearings before a Workers’ Compensation Law Judge. These hearings involve testimony from you, your medical providers, and the carrier’s experts. Legal representation is strongly recommended for contested hearings.
For injuries occurring between July 1, 2025 and June 30, 2026, the maximum weekly benefit is $1,222.42. Your actual benefit will be two-thirds of your average weekly wage, up to this maximum. The average weekly wage is calculated based on your earnings in the year before your injury.
One important procedural change affects how requests for further action are submitted. Starting in early 2026, electronic submission of Form RFA-2 (Request for Further Action by Insurer/Employer) is mandatory. This is part of the Workers’ Compensation Board’s ongoing modernization efforts to streamline claims processing.
Why Brain Injury Claims Get Denied
Brain injury workers’ compensation claims face denial more frequently than many other types of workplace injuries. Understanding common reasons for denial can help you avoid pitfalls and strengthen your claim.
Delayed Reporting: Failing to report your injury promptly gives the insurance carrier grounds to question whether it actually occurred at work. Brain injuries sometimes have delayed symptoms, making timely reporting challenging. Document the accident immediately, even if symptoms seem minor.
Lack of Medical Evidence: Brain injuries may not be visible on standard CT scans or MRIs, particularly mild to moderate TBIs. Insurance carriers often deny claims when diagnostic imaging appears normal, despite significant cognitive symptoms. Neuropsychological testing and detailed clinical evaluations are often necessary to document brain injuries that do not show up on scans.
Pre-Existing Conditions: If you had prior head injuries, learning disabilities, or cognitive issues, the carrier may argue that your current symptoms are not work-related. Medical evidence differentiating new injuries from pre-existing conditions is essential in these cases.
Disputed Work-Relatedness: Insurance carriers frequently challenge whether the brain injury actually occurred during work. This is especially common when there were no witnesses to the accident or when symptoms appeared gradually rather than immediately after a specific incident.
Independent Medical Exam Opinions: The carrier’s chosen doctors often minimize the severity of brain injuries or claim you have reached maximum medical improvement earlier than your treating physicians believe. These conflicting medical opinions lead to claim disputes requiring hearings to resolve.
Returned to Work: If you attempt to return to work after your injury, even in a limited capacity, the carrier may use this as evidence that you are not disabled. However, many brain injury victims try to work despite significant limitations before ultimately being unable to continue.
Incomplete Vocational Assessment: For non-schedule loss claims, inadequate vocational evaluation may result in the carrier underestimating your loss of wage-earning capacity. Thorough vocational assessment is crucial to establishing the full extent of your disability.
When your claim is denied or disputed, you have the right to appeal and request a hearing before a Workers’ Compensation Law Judge. These hearings are adversarial proceedings where both sides present medical and vocational evidence. Having experienced legal representation significantly improves your chances of a successful appeal.
Do Not Give Recorded Statements: Insurance adjusters often request recorded statements shortly after your injury, hoping you will say something that undermines your claim. You are not required to give a recorded statement beyond basic facts. Consult with an attorney before providing any detailed statements to the insurance carrier.
How a Brain Injury Lawyer Can Help
Navigating a workers’ compensation claim for a traumatic brain injury presents challenges that make legal representation valuable:
Understanding Complex Medical Issues: Brain injury cases require understanding neurology, neuropsychology, and how cognitive deficits affect work capacity. Attorneys experienced in brain injury claims work with medical experts who can thoroughly document your injuries and explain them effectively to the Workers’ Compensation Board.
Maximizing Your Benefits: Insurance carriers aim to minimize benefit payments. An attorney ensures you receive full medical benefits, proper calculation of wage replacement, and accurate assessment of your permanent disability. The difference between inadequate legal representation and experienced counsel can amount to hundreds of thousands of dollars in complex brain injury cases.
Handling Disputed Claims: When carriers deny or dispute your claim, you need an advocate who can gather evidence, prepare legal arguments, and present your case effectively at hearings. Most claimants without attorneys receive significantly lower benefits or have claims denied that should have been approved.
Identifying All Available Claims: Beyond workers’ compensation, there may be additional legal claims against third parties, product manufacturers, or others whose negligence contributed to your injury. Attorneys evaluate all potential claims to ensure you receive full compensation.
Preventing Settlement Mistakes: Lump-sum settlement offers may seem attractive but often shortchange claimants with brain injuries who need lifetime medical care. An attorney evaluates whether settlements adequately compensate you for future losses or whether ongoing benefits are preferable.
Coordinating Multiple Benefit Systems: Brain injury victims may be eligible for workers’ compensation, SSDI, private disability insurance, and other benefits. An attorney coordinates these systems to maximize total benefits while avoiding offset problems.
Most brain injury attorneys work on a contingency fee basis, meaning they receive payment only if you recover benefits. This arrangement makes experienced legal representation accessible even when you are unable to work due to your injury.
Experienced Brain Injury Legal Representation in New York
If you suffered a brain injury at work, understanding your rights and securing full benefits can make the difference between financial hardship and stability during recovery. Our attorneys have extensive experience handling complex brain injury workers’ compensation claims throughout New York. Contact us for a free consultation to discuss your case and learn how we can help you secure the benefits you deserve.
Frequently Asked Questions
How long do I have to file a workers’ compensation claim for a brain injury in New York?
You must report your workplace injury to your employer within 30 days of the accident or from when you first became aware that your symptoms are work-related. You then have two years from the date of your injury to file a formal claim with the Workers’ Compensation Board. However, you should file as soon as possible because delays can lead to disputes about whether your injury is work-related. For brain injuries with delayed symptoms, the two-year deadline may be calculated from when you knew or should have known that your cognitive problems were caused by a workplace incident.
Can I receive workers’ compensation if my employer says I was partially at fault for the accident that caused my brain injury?
Yes. New York’s workers’ compensation system is a no-fault system, meaning you can receive benefits even if you were partially or entirely at fault for the accident. Your employer and their insurance carrier cannot deny your claim based on your own negligence. The only defenses available to carriers are that the injury did not arise out of employment, that it did not occur in the course of employment, or that you were intoxicated or violated specific safety rules in limited circumstances. Your own carelessness does not bar recovery.
What if my brain injury symptoms did not appear until days or weeks after the workplace accident?
Brain injuries often have delayed symptoms. You may feel fine immediately after an accident but develop headaches, cognitive difficulties, or other symptoms days or weeks later. These delayed symptoms do not prevent you from claiming workers’ compensation benefits. However, you should see a doctor as soon as symptoms appear and clearly report to both your doctor and employer that you believe these symptoms resulted from a workplace accident. The key is establishing a clear connection between the accident and your symptoms through medical evidence and your own consistent reports about when and how the injury occurred.
Will I lose my job if I file a workers’ compensation claim for my brain injury?
New York law prohibits employers from retaliating against employees for filing workers’ compensation claims. Your employer cannot fire, demote, reduce your pay, or otherwise discriminate against you because you filed a claim. However, if your brain injury prevents you from performing your job duties even with reasonable accommodation, your employer may have grounds to terminate your employment based on inability to perform the work. If you believe you were terminated in retaliation for filing a workers’ compensation claim, you may have additional legal claims against your employer beyond workers’ compensation.
Can I choose my own doctor for treatment of my work-related brain injury?
In New York workers’ compensation cases, you may initially treat with the emergency department or your own doctor immediately after the injury. However, after your employer or insurance carrier provides you with a list of authorized treating physicians, you must select a doctor from that list for ongoing treatment. The carrier’s list must include at least two physicians in your geographic area. If you treat with a non-authorized doctor without the carrier’s approval, they may refuse to pay for that treatment. However, if the authorized doctors are providing inadequate care, you can request authorization to see specialists or change physicians.
What happens if the insurance company’s doctor says I am fine but I still have symptoms?
Insurance carriers often send claimants to independent medical examinations with doctors who routinely minimize injuries or claim workers have reached maximum medical improvement prematurely. When there is a conflict between your treating physician’s opinion and the carrier’s IME doctor, the Workers’ Compensation Law Judge will hold a hearing to resolve the dispute. At the hearing, both sides can present medical evidence and testimony. Your treating physician’s opinion often carries more weight because they have an ongoing treatment relationship with you and are familiar with your symptoms over time, while the IME doctor examines you only once. An attorney can help you present medical evidence effectively to overcome unfavorable IME opinions.
Can I sue my employer directly if they were negligent and caused my brain injury?
Generally, workers’ compensation is your exclusive remedy against your employer, meaning you cannot sue them in court even if they were negligent. However, there are limited exceptions. If your brain injury qualifies as a grave injury resulting in permanent total disability, New York law provides an exception that may allow additional claims beyond workers’ compensation. Additionally, if your employer intentionally caused your injury or failed to carry required workers’ compensation insurance, you may be able to sue them directly. Most brain injury cases, however, are limited to workers’ compensation claims against the employer, though you may have personal injury claims against third parties who contributed to your accident.
How much is my brain injury workers’ compensation claim worth?
The value of your claim depends on multiple factors including the severity of your brain injury, your pre-injury wages, the percentage of wage-earning capacity you have lost, and whether you qualify for permanent disability benefits. For the period from July 1, 2025 through June 30, 2026, the maximum weekly benefit is $1,222.42. If you are found to have a non-schedule loss of use, you may receive benefits for 350 to 525 weeks depending on your percentage of wage-earning capacity loss. Total benefits can range from tens of thousands of dollars for mild injuries to well over a million dollars for severe injuries causing substantial permanent disability. An attorney can evaluate your specific circumstances to estimate the potential value of your claim.
Conclusion
A work-related brain injury can fundamentally change your life, affecting your ability to work, your relationships, and your future. New York’s workers’ compensation system provides important benefits to help you through recovery, but navigating that system requires understanding complex rules about non-schedule loss classifications, grave injury exceptions, and benefit duration formulas.
Whether your brain injury is classified as mild, moderate, or severe, you have rights under New York law to medical care and wage replacement benefits. For injuries between July 1, 2025 and June 30, 2026, the maximum weekly benefit is $1,222.42, and you may be entitled to benefits for multiple years depending on how your injury has affected your earning capacity.
The most severe brain injuries may qualify as grave injuries under New York Workers’ Compensation Law Section 11, opening the door to additional compensation beyond workers’ compensation. Given the high stakes and frequent disputes in brain injury cases, consulting with an experienced attorney as early as possible in the claims process significantly improves your chances of securing full benefits.
If you or a loved one has suffered a brain injury at work, do not navigate this complex system alone. Contact an experienced New York brain injury attorney to discuss your rights and ensure you receive the medical care and financial support you need during this difficult time.
