Legal Question in Workers Comp in New York

Re: Back Surgery

You do not have to have the surgery. It is your body and they can't force you into a surgery. The problem you may have is that the doctor who is recommending surgery might very well say he has nothing more to offer you and therefore he will not see you anymore. This can cause two problems.

First, in order collect comp, you need to have a report from a doctor, every 45 days, indicating you are still disabled. If he won't see you, you need to find a doctor who will continue to certify that you are still disabled. Some doctors may not wish to see you if another doctor has recommended surgery. So it can be a problem from a proof standpoint. Second, if there is a surgery contemplated, you may find it difficult to put some closure to your case on the issue of permanency. Comp cases do not close on the issue of permanency until you have reached maximum medical improvement. If a surgery is contemplated for the future, you are arguably not at maximum medical improvement.

There are no clear cut answers in these situations. Again, there is no hard rule that you have the surgery in order to keep getting comp but, it can create some proof problems from a practical standpoint.