PPD Claims in New York and Claim Strategy Effects on Employers
The March 13, 2007 changes in the New York work comp law regarding permanent partial disability (PPD) claims will trigger radically new claims strategies. Employers should be aware of the changes as they will have a profound effect on comp costs.
The new system is mathematically far more complex than the old and results will often be counterintuitive. For example, return to work in the old system worked immense disadvantages on workers only because of entrenched practices at the Board which rewarded claims in which there was no work activity.
The new system will give substantial advantages to claimants who return to low paying work rather than levels close to their pre-injury wages. Therefore, an early return to work program at the same or similar wages must become the center of efforts to reduce comp costs.
For workers with wages higher than $900/wk the differences are dramatic. A permanently partially disabled worker can receive lifetime payments of $315,000 returning to a minimum wage or part time job. However, that can be reduced to $21,000 if modified work at $765/wk can be provided by the employer.
It can be anticipated that many workers will be advised to engage in limited work by their attorneys to get the higher settlement. Earnings from actual work are presumptively correct as a measure of disability. New medical guidelines will be used when there is no work record to establish a level of disability.
An employer should realize that in New York work comp minimal levels of disability are often preferable to attorneys representing workers since settlement is done quite quickly, often without litigation. Although the legal fees are lower, the time spent is so small that these claims often produce the highest hourly returns for attorneys; $3,300 for a minimal permanent disability.
The maximum fees realistically obtainable will be approximately $45,000 for near total disability of a worker with pre-injury wages above $900/wk. However, the number of claims that fit that profile is statistically quite small. The bulk of fees will come from workers with wages in the range of $500-600/wk who have 50% disabilities, meaning a residual earning capacity of minimum wage work.
A workers’ compensation law practice is subject to the same immutable laws of economics as any other business. In time, emphasis must be placed on those claims that are the economic engine. An employer who provides for effortless settlement of comp claims will find the same incentives that apply to the worker’s lawyer – lower costs and less effort on claims.
So, the lesson for employers is to return their employees to modified duty at the same or similar wages as pre-injury.
Increased litigation costs may be an adverse result as carriers invoke the new law to limit their liabilities; lengthy litigation to avoid the unwarranted establishment of PTD can be anticipated.
Author: Attorney Theodore Ronca is 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.
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All state laws vary.
ESSENTIAL: This article is Return-to-Work Essentials content.
