NEW YORK Will Guidelines Limit Disability Settlements

The largest amount of money awarded in NY comp is for “permanent partial disability” claims. These are the claims that have the largest settlement figures at the end of the claim (frequently over $100,000) and generate nearly half of the legal fees.

The new guidelines will measure the amount awarded for permanent disability claims not subject to a “schedule loss”. Usually this means back claims. “Schedule loss” claims are for fingers, toes, arms and legs (as well as vision and hearing). (WCxKit)

The new guidelines call for a three-step evaluation measuring
a. severity of injury,
b. loss of functional abilities, and
c. loss of wage earning capacity.  

It is the loss of wage earning capacity that is causing problems since New York for many decades has ignored measuring wage earning capacity.

This presents a unique opportunity for employers to submit evidence which can substantially reduce comp costs. Most employers have several job titles for their employees; larger employers have dozens of titles. By selecting the least strenuous job, documenting its physical requirements and pay scales the employer can often document that wage loss is less than 10% of pre-injury wages – or, in fact, that there is no wage loss at all.

An employer would have to coordinate closely with a carrier to achieve these results. Waiting to be asked is courting a certainty of losing an opportunity.

The employer is uniquely qualified to document the wage earning capacity and is, in fact, an “expert witness” whose testimony is difficult to refute. Even more difficult to refute is documents proving what the pay is for these jobs – documents which are always available to an employer. (WCxKit)

Decades ago, the employer had an active role in providing just this type of testimony. It fell into disuse by the expedient of substituting “minimal, mild, moderate or marked disability” (nowhere defined in the law) instead of measuring actual wage loss.