New Standards for Measuring Disability in NY, Employers Vital Role

Lifetime payments of  workers comp for permanent disability are no longer guaranteed in NY. For accidents prior to 3/13/07 the Board used medical standards which were not linked to realistic estimates of earning capacity and had lifetime duration. For accident after 3/13/07 the Board will attempt to measure true wage loss and earning capacity. A worker whose loss of earning capacity is less that 15% of the wage at time of injury will receive a maximum of 225 weeks of compensation. For loss of greater than 95% of earning capacity a maximum of 525 weeks will be paid. For earning capacities in between there is an ascending  scale of weeks of disability. Therefore, a worker earning $800/wk at time of injury will receive 225 weeks of benefits if his/her wage earning capacity is greater than $680/wk after the injury. However, they receive 2/3 of the difference, or $80/wk or less, for a maximum of 225 weeks. At the other end, a worker with $800/wk at time of injury who can earn even $40/wk is limited to 525 weeks of future benefits. A worker with a loss of more than 80% of earning capacity can request additional payments for "hardship". However, our $800/wk worker would not qualify if they can earn more than $160/wk, less than is paid for a minimum wage job. Changes in claim strategy are easily foreseeable.  Attorneys will have to argue for permanent total disabilities or their clients will sooner or later be faced with economic disaster. The Board will need  any objective information it can get to resolve the coming disputes. Vocational experts will soon replace the medical professionals in most trials. However, it is the employer who has the most valuable information, IF it is provided to the Board and carrier ASAP. The Board will happily incorporate useful information from the employer. Therefore, the employer,  on every claim for extended disability, should inform the Board and carrier of offers of work and how much they pay. If the employee cannot be accommodated the employer should compose a letter explaining why work in the industry is not available to this employee given their physical condition. A short letter will go a long way to resolving the new disputes. And it may prevent an economic disaster for many families. Author: Attorney Theodore Roncais a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers' compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. Try the WC Cost Calculator at www.ReduceYourWorkersComp.com/calculator.php Look at WC 101 for basics www.ReduceYourWorkersComp.com/workers_comp.php Workers' Comp Kit^® is a web-based online Assessment, Benchmarking and Cost Containment system for employers. It provides all the materials needed to reduce your costs significantly in 85% less time than if you designed a program from scratch. www.ReduceYourWorkersComp.com Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact I[email protected]